Cite as

ARKANSAS COURT OF APPEALS DIVISION I No. CR-19-743

Opinion Delivered: March 18, 2020

ADAM BROWN APPELLANT APPEAL FROM THE GREENE COUNTY CIRCUIT COURT V. [NO. 28CR-17-710]

STATE OF ARKANSAS HONORABLE MELISSA BRISTOW APPELLEE RICHARDSON, JUDGE

AFFIRMED

MIKE MURPHY, Judge

Adam Brown was convicted by a jury in the Greene County Circuit Court of first-

degree murder. He was sentenced to forty years’ imprisonment in the Arkansas

Department of Correction. Brown appeals, arguing that the evidence was insufficient to

rebut his justification defense and that the circuit court erred in denying his motion for

new trial. We affirm.

On August 4, 2017, around 10:00 a.m., Brown shot and killed Jeremy Green during

a custody exchange in a gas station parking lot. Brown and his girlfriend, Rachelle Green,

first arrived at the gas station to retrieve Rachelle’s daughter from her ex-husband, Green.

Green then pulled up, parked his car at a gas pump, and went inside to buy ice. While

Green made his way back outside, Brown approached him. Green went back to his vehicle and was filling up a cooler with ice as the two exchanged words. Brown then fired multiple

shots at Green who fell to the ground. Brown looked down at Green and blamed him for

his actions, sat down on a bench, placed his gun in its holster next to him, and waited for

police to arrive.

At trial, the jury viewed a video recording of the incident taken by a surveillance

camera at the gas station. The jury also heard from several eyewitnesses. Heather Wilson

testified that while pumping gas, she heard an argument between two men she identified as

Brown and Green. She testified that she heard Brown loudly state that he wanted “to

solve” whatever issue existed between him and Green and that she saw Brown walk toward

Green while pulling a gun from his waistband. She said that in response, Green then

grabbed the ball hitch out of the back of his vehicle and swung it toward Brown in self-

defense, but Brown shot him in the chest several times.

Danny Franks also witnessed the shooting and heard the two men interacting as he

was getting out of his car to head into the store. Franks testified that he heard Green offer

to meet Brown elsewhere to “finish it,” and Franks heard Brown respond with “we’ll finish

it now.” Franks said he then went into the store and announced that he thought there was

going to be a fight. He testified that he looked out the store window and could see Green

come around his vehicle with something in his hand, and then he heard gunshots.

Justin Weatherford testified that while pumping gas, he witnessed Brown approach

Green as Green came out of the store with ice. Similar to Franks’s testimony, he testified

that he heard Brown say either “we need to finish this” or “we need to solve this.”

2 Weatherford said he then went inside the store, and as he was checking out, he heard three

to four gunshots.

After the State rested, Brown moved for a directed verdict, arguing that his conduct

was not purposeful because he shot Green in self-defense. The court denied the motion.

The defense then presented evidence that Green had a history of domestic violence.

Rachelle testified she divorced Green due to his abusive behavior and alcoholism. Brown

testified Green had threatened him before.

Brown also testified about the day of the shooting, stating that while he was in his

vehicle, Green walked by and flipped him off. He also testified that Green instructed

Rachelle’s daughter to call her mother disparaging and offensive names. Brown testified

that he decided to confront Green and ask him to leave the children out of their issues.

Brown testified that when Rachelle walked over, Green jumped up and said, “I got

something for you,” and he came at Brown with a trailer hitch. Brown said he pulled out

his gun and walked toward Green to get him to drop the trailer hitch. He said Green

started swinging the hitch and attempted to grab his gun. Brown said he then shot Green,

and he kept shooting because Green did not stop attacking him.

Once the defense rested, Brown renewed his motion for directed verdict, which the

circuit court again denied. After deliberations, the jury returned a guilty verdict and

sentenced Brown to serve forty years’ incarceration. Brown now timely appeals.

Motions for directed verdict are treated as challenges to the sufficiency of the

evidence. Swaim v. State,

,

(2002). When reviewing the

3 denial of a directed-verdict motion, the appellate court will look at the evidence in the light

most favorable to the State, considering only the evidence that supports the judgment or

verdict and will affirm if there is substantial evidence to support the verdict.

Substantial

evidence is that which is of sufficient force and character that it will, with reasonable

certainty, compel a conclusion without resorting to speculation or conjecture. Jenkins v.

State,

, ___ S.W.3d ___. Evidence is sufficient to support a verdict if it is

forceful enough to compel a conclusion one way or the other. Swaim,

,

.

First, Brown challenges his first-degree-murder conviction, arguing there was

insufficient evidence to prove he purposely caused Green’s death. Rather, he claims that

the evidence established that his actions were justified and that the State failed to negate

his defense beyond a reasonable doubt.1

A person commits murder in the first degree if with a purpose of causing the death

of another person, the person causes the death of another person.

-

102(a)(2) (Supp. 2019). A person acts purposely with respect to his conduct or a result of

his conduct when it is the person’s conscious object to engage in conduct of that nature or

to cause the result.

(1) (Repl. 2013). Arkansas Code Annotated

section 5-2-607(a)(2) (Supp. 2019) provides that a person is justified in

1 We disagree with the State’s argument that Brown failed to preserve his justification argument for appeal. The record is clear that Brown based his motion for directed verdict on justification grounds and that the court understood the objection as such.

4 using deadly force upon another person if the person reasonably believes that the other

person is using or is about to use unlawful deadly physical force. The State must prove each

element of an offense,

(a)(1) (Repl. 2013), and whether

circumstances negate a defendant’s excuse or justification for the conduct is an element of

the offense.

(5)(c) (Repl. 2013). When reviewing the sufficiency

of the State’s negation of a justification defense, we employ the substantial-evidence

standard of review. Gillard v. State,

,

.

Whether one is justified is largely a matter of the defendant’s intent and is generally

a factual question for the jury. Kauffeld v. State,

,

. A defendant’s intent is ordinarily not subject to proof by direct evidence but must

usually be established by circumstantial evidence.

Critical to this inquiry is the

reasonableness of the accused’s apprehension that he was in danger of death or of suffering

great bodily harm.

Importantly, the defendant’s belief must be objectively reasonable

and not arrived at via fault or carelessness.

Brown submits that he clearly used sufficient force to kill Green but that the State

did not disprove that he was justified in using such force. Brown submits that the evidence

established that Green first attacked Brown with the trailer hitch, and Brown defended

himself. Brown further notes that he did not flee after he shot Green; rather, he remained

at the scene and spoke to law enforcement.

Substantial evidence supports the jury’s verdict that the State negated Brown’s claim

of justification. The jury was presented with testimony that Brown approached Green first,

5 pulled a gun out of his waistband, and charged at Green. Brown’s contention that there

was no inconsistent testimony allowing the jury to disregard the justification defense is not

supported by the record. Wilson testified that Green said “don’t do this right here,” but

Brown, while armed, stated that he wanted “to solve” whatever issue existed between him

and Green. Two other witnesses testified that Brown said something to the effect of “we

need to finish this.” The jury also had the benefit of the surveillance video that showed the

events leading up to the shooting and the actual shooting. Brown’s argument asks us to

give greater credence to his and Rachelle’s testimony, which we will not do. The jury is free

to accept or reject any part of a witness’s testimony, and credibility and the weight to give

any evidence are issues left solely to the jury. Kauffeld,

, at 9–10,

.

Brown cites Maddox v. State for his contention that the jury is allowed to disregard

witness testimony when that testimony is contradicted by the physical evidence.

,

(1922). However, unlike the facts in Maddox, there is no physical

evidence here to contradict the witness testimony. Brown claims that none of the physical

evidence conflicted with his version of the events but fails to assert on appeal what physical

evidence conflicted with the State’s position.

Brown further cites Bailey v. State to highlight the fact that he made no effort to flee

or hide any evidence after the incident.

,

(holding that

a jury may consider evidence of flight as probative evidence of guilt). However, the fact-

finder need not view each fact in isolation but rather considers the evidence as a whole.

6 Kauffeld,

,

. Here, considering the eyewitness

testimony and the surveillance video, the jury could conclude that Brown’s belief that he

was justified in using deadly force was not reasonable. Accordingly, having viewed the

evidence in the light most favorable to the State, we hold that it was reasonable for

the jury to reject Brown’s justification defense.

For his second point on appeal, Brown asserts that the circuit court erred when it

denied his motion for new trial. Brown filed a motion for new trial submitting that the

manager of the gas station, Clayton Gibbons, perjured himself when he testified that he

had not made his own copy of the surveillance video and that he had not shared it in the

public domain. Brown further claimed that Rebecca Johnson, another State witness,

perjured herself when she denied knowledge of another video having been made. The

circuit court denied the motion.

The decision whether to grant a new trial is left to the sound discretion of the

circuit court, and it is not reversed in the absence of an abuse of discretion or manifest

prejudice to the complaining party. Johnson v. State,

,

. To prevail on a motion for new trial based on newly discovered evidence, the movant

must show that the new evidence would have affected the outcome of his case and that he

used due diligence in trying to discover the evidence.

We have recognized that newly

discovered evidence is one of the least favored grounds to justify granting a new trial.

A

new trial will not be granted because of perjury on an immaterial or a collateral issue or

generally where the false testimony may be eliminated without depriving the verdict of

7 sufficient evidentiary support. Bennett v. State,

,

(1991).

In Bennett, our supreme court reversed the circuit court’s denial of a motion for new

trial based on newly discovered evidence. There, the appellant’s conviction was based solely

on an undercover officer’s testimony. At trial, the officer denied having had a sexual

relationship with the appellant, but after the trial, the State stipulated that the officer had

lied about the relationship. On appeal, the court reversed, holding that the officer’s

perjured testimony was a material issue. It based its holding in large part on the fact that

without the officer’s testimony, there would be insufficient evidence to support the

conviction.

Here, we cannot say that Gibbons’s and Johnson’s perjured testimony about the

surveillance video was a material issue. Unlike in Bennett, Brown’s conviction was based on

more than Gibbons’s and Johnson’s testimony. The jury heard testimony from

eyewitnesses and viewed the original surveillance video. Notably, Brown does not challenge

the actual surveillance video and what it depicts. Having considered our standard of review

and the record before us, we agree with the circuit court that the false testimony would not

have affected the outcome of this case.

Affirmed.

GLADWIN and SWITZER, JJ., agree.

Stanley Woodard, by: William “Bill” Stanley; Ray Nickle; and Brian G. Brooks, Attorney at

Law, PLLC, by: Brian G. Brooks, for appellant.

8 Leslie Rutledge, Att’y Gen., by: Christopher R. Warthen, Ass’t Att’y Gen., for appellee.

9