Moore v. State

Cite as 2013 Ark. App. 582ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-13-292
Opinion Delivered October 23, 2013
BOBBY RAY MOORE
APPELLANT APPEAL FROM THE HOT SPRING
COUNTY CIRCUIT COURT
[NO. 30CR-2012-115-1]
V.
HONORABLE CHRIS E WILLIAMS,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
ROBERT J. GLADWIN, Chief Judge
Bobby Ray Moore appeals the September 11, 2012 conviction and sentencing order
in the Hot Spring County Circuit Court, wherein he was convicted of possession of firearms
by certain persons and sentenced to ten years’ imprisonment. On appeal Moore argues that
the evidence was insufficient for a conviction. We affirm, holding that the circumstantial
evidence amounts to substantial evidence supporting the verdict.
Moore was charged with being a felon in possession of a firearm and being a habitual
criminal by amended information filed on September 4, 2012. At the jury trial on September
6, 2012, Regina Shearin, 911 dispatcher for Hot Spring County, testified that she received
a call on March 30, 2012, and the audio recording of that 911 call was played for the jury.
The recording reflected that David Avington saw a man get out of a car, chase another man,
and shoot into the air. Avington reported that the shooter was driving “a blue, no a silver
car,” which he identified later in the 911 call as a silver Taurus.
Cite as 2013 Ark. App. 582Avington testified that he had been mowing his yard at 810 Acme Street when he
heard a shot. He called 911 because his grandchildren were with him in the yard. He
testified that he saw a car stop on the railroad track. He saw a passenger get out and then saw
the driver get out, walk about twenty feet, then go back to his car. Avington said, “He got
out and he boom, boom, boom.” Avington described the shooter as a black man wearing
jeans but no shirt. He said that the car was a silver Taurus, but he was not able to recognize
the shooter. Avington testified that, after the shooter got back in his car, he drove away
toward Oak Street. The car then turned around, came back across the track, and turned on
Burris Street, right behind Avington’s trailer.
Lieutenant Brian Heinley with the Malvern police testified that he was dispatched to
the scene and spoke to David Avington. When Avington gave him the description of the
shooter, Heinley broadcast the information to other officers. As he was speaking to
Avington, Officer Coke advised over the radio that he had the suspect vehicle stopped on
Burris Road.
Heinley identified Moore as the driver of the stopped vehicle and said that Moore was
taken into custody. Heinley estimated that it was three or four minutes between the original
911 call and the time that Moore was stopped. Heinley described the procedure for securing
Moore’s car and stated that he went to the jail, where Moore had been taken, and advised
Moore that a gunshot-residue (GSR) test would be administered on his hands. At that point,
Moore became very aggressive and combative toward the officers. Heinley said that they had
to physically restrain Moore but that the test was administered.
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Cite as 2013 Ark. App. 582Heinley opined that there would have been sufficient time for Moore to get rid of the
gun before his arrest. He stated that Moore could have thrown it out the window or
dropped it off at a residence as he was passing in his car. Heinley testified that Moore did not
become physically aggressive until he was told that a GSR test would be administered.
Corporal Clay Coke with the Malvern police testified that he stopped Moore’s car on
Burris Street. Moore, who matched the description that came from dispatch, exited the
vehicle and said, “I ain’t got no gun.” Coke said that Moore was aggressive and was cursing
the officers. Coke searched Moore’s vehicle, but found no firearm. When they arrived at
the jail, Coke handcuffed Moore to a bench. Coke maintained that, all the while, Moore’s
aggression was rising. When told that a GSR test would be administered, Moore became
more aggressive, saying he was not doing the test. Coke said that Moore was wiping his
hands on his pants, balling his fists up, and curling his arms in so that the officers had to
handcuff his other arm. Coke said it took four officers to get the test swab.
Malvern police officer Adam Taylor said that he arrived on the scene after Moore had
been stopped and found a nine-millimeter Luger shell casing on the road. He testified that
when he arrived at the jail, Moore was handcuffed to a bench and was doing something with
his hands. He saw that Moore had a substance on his hands that could have been soap,
toothpaste, or hand sanitizer, and that he was rubbing between all his fingers, up to about
four-or-five inches above the wrist, with the substance. Taylor described a door with a
bean-hole port next to the bench where Moore had been handcuffed. The bean-hole port
was open and there was another inmate in this cell who had supplied Moore with whatever
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Cite as 2013 Ark. App. 582he had on his hands. Taylor later testified that he did not witness the inmate give anything
to Moore. He described Moore as being combative when confronted with the GSR test and
said that Moore had to be restrained by four officers.
Allison Talbot, a criminalist at the Arkansas State Crime Lab, testified that a GSR test
must have at least one particle containing antimony, lead, and barium to be positive. In the
instant test, however, she found one particle containing barium and lead, but none with all
three. Therefore, she testified that the test for GSR was negative. She explained that a
negative test result cannot support the conclusion that a person did not discharge a firearm
because there are many reasons for a GSR kit to be negative, including washing hands and
wiping hands repeatedly on pant legs.
After a stipulation that Moore had a prior violent-felony conviction, Moore moved
for a directed verdict, arguing that the evidence was insufficient for the jury to determine that
he had a gun or had fired a gun. The motion was denied. At the close of the defense’s case,
the motion was renewed and denied again. The jury found Moore guilty of possession of
a firearm, and he was sentenced to ten years’ imprisonment in the Arkansas Department of
Correction. It is from this conviction that Moore appeals.
On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of
the evidence. Magness v. State, 2012 Ark. App. 609, ___ S.W.3d ___. We will affirm the
circuit court’s denial of a motion for directed verdict if there is substantial evidence, either
direct or circumstantial, to support the jury’s verdict. Id. Substantial evidence is evidence
forceful enough to compel a conclusion one way or the other beyond suspicion or
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Cite as 2013 Ark. App. 582conjecture. Id. Furthermore, this court views the evidence in the light most favorable to the
verdict, and only evidence supporting the verdict will be considered. Id. Circumstantial
evidence may constitute substantial evidence to support a defendant’s conviction, but only
if it excludes every reasonable hypothesis other than the guilt of the accused. Inthisone v.
State, 2013 Ark. App. 482. The question of whether circumstantial evidence excludes every
other reasonable hypothesis consistent with innocence is generally reserved for the
fact-finder. Id. On review, this court must determine whether the fact-finder resorted to
speculation and conjecture in reaching the verdict. Brawner v. State, 2013 Ark. App. 413,
___ S.W.3d ___.
Arkansas Code Annotated section 5-73-103 (Supp. 2011) provides that no person
who has been convicted of a felony shall possess or own any firearm, subject to exceptions
not applicable in this case. A Class B felony is committed by a person possessing a firearm
if (1) the person has a prior violent-felony conviction; (2) the person’s current possession of
a firearm involves the commission of another crime; or (3) the person has been previously
convicted under the statute. Ark. Code Ann. § 5-73-103(c)(1)(A)–(C).
Moore claims that the trial court erred in denying his motion for directed verdict,
arguing that the jury would have to resort to speculation and conjecture to find him guilty
of possession of a firearm by certain persons. Chism v. State, 312 Ark. 559, 853 S.W.2d 255(1993) (where circumstantial evidence did not amount to substantial evidence that victim’s
liberty was restrained to support a kidnapping charge). He points to Avington’s prevarication
in identifying the vehicle, emphasizing that in his 911 call, Avington first claimed that the
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Cite as 2013 Ark. App. 582vehicle was blue, then silver, then later in a police statement, he identified the vehicle as
being gray. Moore notes that Avington could not identify him as the shooter, even though
Avington knew him personally. Moore argues that no one identified him as the shooter, that
the GSR test was negative, that neither a gun nor shell casings were found in the car, and
that there were no blood or fingerprints on the shell casing found at the scene. He
acknowledges that guilt can be established by circumstantial evidence, but notes that it must
exclude every other reasonable hypothesis than that of guilt of the accused or it does not rise
to the required substantial evidence. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000).
The State maintains that substantial evidence supports Moore’s conviction. It cites
Wilson v. State, 10 Ark. App. 176, 662 S.W.2d 204 (1983), where this court held that
possession of stolen goods, even though circumstantial, was sufficient to sustain a conviction
of theft by receiving. We reasoned that the law makes no distinction between direct
evidence of a fact and circumstances from which a fact may be inferred. Id. at 185, 662
S.W.2d at 209 (citing Cooper v. State, 275 Ark. 207, 628 S.W.2d 324 (1982)). The State also
notes that Moore’s actions, when confronted with the GSR test, are indicative of his guilt,
citing Riddle v. State, 303 Ark. 42, 791 S.W.2d 708 (1990) (where appellant’s flight to avoid
capture was incriminating evidence).
We agree with the State that the evidence, viewed in the light most favorable to the
prosecution, is sufficient to support the verdict. Moore was stopped within close proximity
to where Avington reported that shots had been fired. He was driving a silver Taurus and
wearing jeans with no shirt. The description of Moore and of his vehicle matched the
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Cite as 2013 Ark. App. 582description reported by Avington. When confronted with the prospect of being tested for
gunshot residue, Moore exhibited aggressive behavior and was observed wiping his hands.
A criminalist testified that wiping and washing hands could interfere with the GSR test.
Officer Heinley testified that there was sufficient time for Moore to dispose of a gun before
his arrest. Accordingly, we affirm and hold that the circumstantial evidence excludes every
other reasonable hypothesis than that of guilt. Inthisone, supra; Gregory, supra.
Affirmed.
PITTMAN and WOOD, JJ., agree.
Gregory Crain, for appellant.
Dustin McDaniel, Att’y Gen., by: Rebecca B. Kane, Ass’t Att’y Gen., for appellee.
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