Draft v. State ( 2016 )

Cite as 2016 Ark. App. 216
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-15-708
Opinion Delivered April 20, 2016
ROBERT DRAFT
APPELLANT APPEAL FROM THE WHITE
COUNTY CIRCUIT COURT
[NO. CR-2014-206]
V.
HONORABLE ROBERT EDWARDS,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
M. MICHAEL KINARD, Judge
Robert Draft appeals from his conviction of second-degree murder, for which he was
sentenced to thirty years’ imprisonment plus a fifteen-year enhancement, due to his use of
a firearm in committing the offense, to be served consecutively. He contends that the
evidence is insufficient to support the finding of guilt. We affirm.
On May 18, 2014, appellant became angry at his wife and beat her badly both with
his hands and with the butt of a shotgun. She managed to escape and drove approximately
200 yards up a gravel driveway to her parents’ home. Mrs. Draft’s mother then drove Mrs.
Draft to the hospital emergency room. Mrs. Draft’s father, Douglas Cloyes, remained at his
home. Appellant then drove his truck, with a loaded .223-caliber semi-automatic rifle, to
the Cloyeses’ home. Mr. Cloyes was standing near the gravel driveway, and appellant parked
his truck in the grass between Mr. Cloyes and the house. According to appellant, Mr.
Cloyes began shooting at him. Appellant testified that he then reached back into his truck,
Cite as 2016 Ark. App. 216
grabbed his rifle, and began firing at Mr. Cloyes. Mr. Cloyes was hit by five rounds from
appellant’s rifle and died as a result. Appellant returned to his home, gathered some money
and a telephone, disassembled the rifle and threw it in a river, and drove to Michigan. A .22-
caliber pistol was found under Mr. Cloyes’s body, and three spent .22 cartridges were found
nearby. At least thirteen spent .223 cartridges were found approximately sixty-five feet from
the body, at the site of truck-tire tracks in Mr. Cloyes’s yard.
Appellant was charged with first-degree murder in the death of his father-in-law and
second-degree battery in the beating of his wife. After a jury trial, he was convicted of the
lesser-included offense of second-degree murder and second-degree battery. As to second-
degree murder, appellant moved for a directed verdict of acquittal on the following grounds:
“[T]he State has failed again to provide any evidence that [appellant] caused the death of Mr.
Cloyes and, if they did so, they did not prove that [appellant] did so knowingly.” The
motion was denied both at the close of the State’s case and again at the close of all of the
evidence.
On appeal, appellant challenges only the murder conviction, arguing that the trial
court erred in denying his motion for a directed verdict of acquittal. He has abandoned the
argument that he did not kill Mr. Cloyes. However, he continues to argue that there is no
substantial evidence to support the finding that he “knowingly” caused the death.
A motion for a directed verdict is a challenge to the sufficiency of the evidence.
Steele v. State, 2014 Ark. App. 257, 434 S.W.3d 424. Where sufficiency is challenged on
appeal from a criminal conviction, we consider only that proof that supports the verdict.
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Davis v. State, 2015 Ark. App. 234, 459 S.W.3d 821. We view that evidence and all
reasonable inferences deducible therefrom in the light most favorable to the State. Id. We
will affirm if the finding of guilt is supported by substantial evidence. Id. Evidence is
substantial if it is of sufficient force and character that it will, with reasonable certainty,
compel a conclusion one way or the other without requiring resort to speculation or
conjecture. Id. While it is true that circumstantial evidence is insufficient if it leaves the jury
solely to speculation and conjecture, the fact that evidence is circumstantial does not
necessarily render it insubstantial. Simpkins v. State, 2010 Ark. App. 723. Circumstantial
evidence is sufficient if it excludes every other reasonable hypothesis consistent with
innocence. Id. Whether the circumstantial evidence excludes every reasonable hypothesis
consistent with innocence is for the fact-finder to decide; on review, we must determine
whether the fact-finder had to resort to speculation and conjecture to reach its decision.
Davis, supra. The weight of the evidence and credibility of the witnesses are matters for the
fact-finder, not for the trial court on a directed-verdict motion or this court on appeal.
Simpkins, supra.
A person commits murder in the second degree if he knowingly causes the death of
another person under circumstances manifesting extreme indifference to the value of human
life. Ark. Code Ann. § 5-10-103(a)(1) (Repl. 2013). A person acts “knowingly” with
respect to his conduct when he is aware that it is practically certain that his conduct will
cause the result. Ark. Code Ann. § 5-2-202(2)(B) (Repl. 2013). A criminal defendant’s
intent or state of mind is seldom capable of proof by direct evidence and must usually be
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inferred from the circumstances of the crime. Satterfield v. State, 2014 Ark. App. 633, 448
S.W.3d 211. Such circumstances can include the type of weapon used, the manner of its use,
and the nature, extent, and location of the wounds inflicted. Id. Conduct of the accused
following the crime, such as flight or concealment or destruction of evidence, is also relevant
and properly considered as evidence of consciousness of guilt. Id. Moreover, because of the
difficulty in ascertaining one’s intent or state of mind, a presumption exists that a person
intends the natural and probable consequences of his acts. Id.
Here, appellant admitted at trial that he had beaten his wife. He then drove his truck,
containing a loaded rifle, the short distance to his in-laws’ home. During a confrontation
with his father-in-law, appellant took the rifle and shot it at his father-in-law from a distance
of approximately sixty-five feet. Appellant admitted that he pulled the trigger at least thirteen
times. He does not dispute that five of those shots hit the victim and caused his death.
Thereafter, appellant returned to his house, gathered some money and his phone, and fled
to Michigan, taking the rifle apart and throwing it in a river along the way. We conclude
that this evidence is more than adequate to support the jury’s finding that appellant
knowingly caused the victim’s death.
To the extent that appellant argues that the evidence is insufficient to negate the
conclusion that he acted in self-defense, we do not address the issue because it was not
preserved for appeal. In order to preserve for appeal any argument pertaining to the
sufficiency of the evidence to support a jury verdict in a criminal case, the defendant must
make a specific motion for a directed verdict of acquittal at the close of the evidence
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presented by the prosecution and again at the close of all of the evidence. Ark. R. Crim. P.
33.1(a) & (c). The motion must advise the trial court of the exact element that the defendant
contends the State has failed to prove. Rodriguez-Gonzalez v. State, 2014 Ark. App. 208.
The failure to make the challenge at the times and in the manner required by the rule will
constitute a waiver of any question pertaining to the sufficiency of the evidence. Ark. R.
Crim. P. 33.1(c).
In general, a statutory justification is a defense to conduct that would otherwise
constitute an offense. See, e.g., Ark. Code Ann. §§ 5-4-602; -603(a); -604(a); -605 (Repl.
2013). Arkansas Code Annotated section 5-2-607(a) (Repl. 2013) provides that the use of
deadly physical force in defense of a person is justified in certain circumstances. Justification
becomes a defense when any evidence tending to support its existence is offered to support
it. Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003). By statute, a justification, such
as self-defense, is considered an element of the offense and, once raised, must be disproved
by the prosecution beyond a reasonable doubt. Id.; Metcalf v. State, 2011 Ark. App. 55.
Here, at the close of the State’s case, appellant made the following motion for a
directed verdict as to the homicide charge:
At this time, the defense would move for a directed verdict dealing with the murder
in the first [degree] . . . . [W]e believe the State has failed to provide substantial
evidence . . . that [appellant] caused the death of Mr. Cloyes. Even if they have
proven that, they have not shown that he did so with the purpose of causing his
death. . . . [W]ith regard to . . . murder in the second, the lesser, we would move
and argue that the State has failed again to provide any evidence that [appellant]
caused the death of Mr. Cloyes and, if they did so, they did not prove that he did so
knowingly . . . .
Appellant’s motion followed this same pattern for the additional lesser-included offenses of
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manslaughter and negligent homicide. At the close of all of the evidence, appellant
“renew[ed]” his earlier motions for directed verdict “as if I had restated them all verbatim
right here.” At no time did appellant argue self-defense as justification for his actions as part
of his directed-verdict motions. Therefore, any challenge to the sufficiency of the evidence
to negate the defense of self-defense was not preserved for appeal. Lee v. State, 2010 Ark.
App. 15.
Affirmed.
VIRDEN and HARRISON , JJ., agree.
James Law Firm, by: William O. “Bill” James, Jr., for appellant.
Leslie Rutledge, Att’y Gen., by: Rachel Kemp, Ass’t Att’y Gen., and Garrett Morgan, Law
Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission to the
Bar of the Supreme Court under the Supervision of Darnisa Evans Johnson, Deputy Att’y Gen.,
for appellee.
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