Stewart v. State

Josephine Linker Hart, Judge.

On December 20, 1996, the appellant was charged with capital murder. On February 17, 1998, two days before trial, the State amended the information to add the charge of aggravated robbery. Appellant’s objection to the amended information was overruled, and after a trial, the jury found the defendant guilty of first-degree murder and aggravated robbery. Appellant was sentenced to serve consecutive sentences of twenty-five years on the first-degree murder conviction and forty years on the aggravated robbery conviction. On appeal, appellant contends the trial court erred in allowing the State to amend the information one day prior to trial, admitting gruesome photographs into evidence, and denying his motion for a directed verdict on the charge of aggravated robbery. Appellant does not argue on appeal that there was insufficient evidence to support his conviction for first-degree murder. Arguments not raised on appeal are deemed abandoned. See King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996). Therefore, this court will not address the sufficiency of the evidence to support the first-degree murder conviction.

On November 14, 1996, appellant and three companions had been at a rest stop outside Blytheville for approximately thirty minutes when the victim, Russell Hinkle, and his family drove into the park. When the Hinkle family arrived, two of appellant’s companions were outside the door of the men’s room, and the appellant and another companion were inside. However, all four were in the restroom when Hinkle entered. Soon after Hinkle went into the men’s restroom, appellant’s companion, DeAsbley Wright, fired four shots, killing Hinkle. Appellant and his companions ran from the restroom with jackets pulled over their heads and left in their vehicle, which was backed into a parking place with a towel covering the license plate.

Appellant argues that the trial court erred in not granting appellant’s motion for directed verdict on aggravated robbery. In reviewing the denial of a motion for a directed verdict, the court views evidence in the light most favorable to the State. Harris v. State, 331 Ark. 353, 961 S.W.2d 737 (1998). Evidence is considered sufficient if there is substantial evidence to support the verdict. Id. Direct or circumstantial evidence is substantial if it is of sufficient force to compel a conclusion one way or the other beyond speculation or conjecture. Id.

Although several witnesses testified at the trial, no evidence was presented that any property was taken or that there was an attempt or threat to take any property from the victim. When the appellant was questioned by the police, he stated that DeAshley asked if they wanted to rob someone, and he replied, “[N]aw, man, I ain’t down to no robbing. ...” The facts presented in this case merely show the appellant was present at the crime scene when his companion fired the gun and killed the vie-tim. One might speculate the young men entered the restroom to commit murder, or to commit robbery, or to commit robbery and murder, or to use the facilities, unaware that anyone intended to commit a crime. The proof does not compel a conclusion one way or the other. Based upon the State’s failure to present such evidence, the appellant’s conviction for aggravated robbery is reversed and dismissed. Because we reverse and dismiss his conviction for aggravated robbery, we need not address appellant’s objection to the State’s amendment of the information to add the aggravated robbery charge.

Appellant also argues that the trial court erred by admitting three gruesome photographs into evidence. The first photograph shows the victim lying in a pool of blood near the restroom after the shooting. Appellant argues that this photograph is gruesome and the verbal descriptions given by witnesses adequately described the shooting. Two additional photographs, objected to by appellant, were autopsy photographs showing metal rods that were inserted through the gunshot wounds. Appellant argues that the trial court abused its discretion in admitting these photographs and asserts they were inflammatory and prejudicial. Appellant asserts that the photographs depicted the victim as if “pinned to a Styrofoam board as part of an insect collection.”

Even inflammatory photographs may be admitted if they help explain an issue to be submitted to the jury. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993). The discretion of the trial judge will not be disturbed unless the photographs serve no valid purpose. Jones v. State, 329 Ark. 62, 947 S.W.2d 339 (1997). The trial court found that the photograph of the victim lying outside the restroom should be admitted to show the location of the victim in relation to the restroom. The court also found that the photographs taken by the medical examiner’s office helped the witness explain the path of the bullets through the victim’s body. The photographs were admitted for valid purposes, and the probative value of the evidence was substantially outweighed by any danger of unfair prejudice that may have resulted from the introduction of the photographs. Thus, the trial court did not abuse its discretion in admitting the photographs, and appellant’s conviction for first-degree murder is affirmed.

Affirmed in part; reversed in part.

Rogers, Pittman, and Griffen, JJ., agree. Roaf and Jennings, JJ., dissent.