Bragg v. State

2021 Ark.App. 381

ERIC BRAGG APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-21-57

Court of Appeals of Arkansas, Division II

October 6, 2021

APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, CHICKASAWBA DISTRICT [NO. 47BCR-19-78] HONORABLE CINDY THYER, JUDGE

Terry Goodwin Jones, for appellant.

Leslie Rutledge, Att'y Gen., by: Brooke Jackson Gasaway Ass't Att'y Gen., for appellee.

KENNETH S. HIXSON, JUDGE

Appellant Eric Bragg appeals after he was convicted by a Mississippi County Circuit Court jury of murder in the first degree with two additional enhancements: committing the murder while in the presence of a child and while also employing a firearm as a means of committing the murder. He was sentenced to serve an aggregate total of 780 months' imprisonment in the Arkansas Department of Correction according to his sentencing order. On appeal, appellant argues that (1) the circuit court erred when it denied his motion for directed verdict because the State did not offer sufficient evidence that he acted with purposeful intent to cause the death of Britnee Sims (Britnee), and (2) the circuit court erred when it did not allow appellant to present a jury instruction on extreme-emotional-disturbance manslaughter. We affirm but remand for correction of the sentencing order.

I. Relevant Facts

Pertinent to this appeal, appellant was charged by amended information with murder in the first degree in violation of Arkansas Code Annotated section 5-10-102 (Supp. 2021), a Class Y felony and the State further alleged that appellant's sentence should be enhanced pursuant to Arkansas Code Annotated section 16-90-120 (Supp. 2021) for having employed a firearm as a means of committing the felony offense and pursuant to Arkansas Code Annotated section 5-4-702 (Supp. 2021) for having committed the murder in the first degree in presence of a child.^[1] A jury trial was held on October 27-28, 2020.

At trial, Lieutenant Stu Sigman testified that on February 19, 2019, he responded to a call that a female had been shot in an apartment. When Lieutenant Sigman arrived, appellant Eric Bragg answered the door. Lieutenant Sigman asked where the victim was located, and Bragg pointed toward the stairs. Lieutenant Sigman noted that the victim's father, Rennee Sims (Mr. Sims), and the victim's two daughters were present. Lieutenant Sigman also saw a black Glock handgun on the floor. When Lieutenant Sigman asked appellant if the victim's gunshot wound was self-inflicted, appellant responded, "It was me." Lieutenant Sigman then went upstairs where he found the victim, Britnee, dead and covered in blood.

Sergeant Robin Haught-Angel testified that she also responded to the call that a female had been shot in an apartment. Sergeant Haught-Angel testified that she saw two young children downstairs in the apartment. She stated that they were screaming and that she was unable to console them. She also testified that she had secured appellant at the scene and subsequently transported him to the police department. She stated that appellant was silent in her patrol car and was upset once they arrived at the police department.

Detective Chelsey Grimes testified that she arrived at the scene after Lieutenant Sigman and Sergeant Haught-Angel had arrived. A diagram of the two-story townhouse apartment and pictures of the scene were admitted into evidence and presented to the jury. Detective Grimes testified that a Glock 22, a magazine, and three .40-caliber expended cases were found at the scene. A note was also found underneath Britnee's body, and Detective Grimes testified that the note stated the following:

"I read the whole text. This is your friend/boyfriend, Sylvester Steward, some guy from Memphis, Lamont William. Says he stay here. I got a picture and know where he live. Rapheal Harris" - it has an arrow pointing down and it says (as read) - "I know his wife and we plan to talk face-to-face."

Mr. Sims testified that appellant and his daughter, Britnee, were dating at the time of her death. On the day of the murder, Mr. Sims was babysitting Britnee's two children until she could pick them up after work. However, Britnee called Mr. Sims and told him that she would be at his house soon and that she wanted to go to her apartment to get her things out of there. Britnee picked up the children, and Mr. Sims followed her to the apartment to help her move her things. When they arrived at the apartment, appellant unexpectedly came outside to meet them. Mr. Sims testified that appellant kept saying to Britnee, "You gonna do me like that?" Then they all went inside the apartment. When Britnee went upstairs to get her belongings, appellant followed her upstairs. Mr. Sims testified that about two to three minutes later, he heard three gunshots. Afterwards, appellant walked down the stairs carrying a gun and then sat on the stairs and put the gun to his head. Mr. Sims testified that, when the shooting occurred in the upstairs bedroom, he and the children were downstairs in the front room. Mr. Sims attempted to take the gun from appellant, but he was unsuccessful, and he then ran upstairs. Mr. Sims called 911 after he found Britnee's body.

Jennifer Floyd, a firearm and toolmark examiner, testified that she examined the Glock 22 semiautomatic pistol found at the scene. She confirmed that the three expended .40-caliber cartridge cases were all fired from the same Glock pistol found at the scene. However, a comparison of the bullet and fragments recovered by the medical examiner were inconclusive.

Detective Vanessa Stewart testified that she also responded to the call at the apartment. Stewart testified that she spoke with several family members after the murder, including James Tyson Bragg (appellant's brother), Terika Bragg (appellant's sister-in-law who was married to James Tyson Bragg), and Phillisa Bragg (appellant's sister). Both Terika Bragg and Phillisa Bragg gave Detective Stewart text messages that they had exchanged with appellant from earlier in the day.

Terika Bragg, Britnee's long-time friend and appellant's sister-in-law, testified that on the day of the shooting, appellant sent her a message from his Facebook account. Terika read the Facebook message and subsequently contacted Britnee to ask Britnee about her plans. Britnee told Terika that she was "getting her stuff." Later that day, appellant called Terika and told her that he was sorry and admitted that he had shot Britnee. Terika testified that appellant had been very "controlling" of Britnee in the year before Britnee's death and that Britnee and her children had to live with Terika on multiple occasions.

Dr. Stephen Erickson, the medical examiner, testified that Britnee "died of multiple gunshot wounds." She was shot once "across the left shoulder, into the neck . . . [and] exiting the inner part of the left eyebrow." She was also shot twice in the back of her head.

After the State rested its case, appellant moved for a directed verdict. As to his charge of murder in the first degree, appellant argued that the State failed to prove that he shot Britnee with "purposeful intent." The circuit court denied the motion.

Appellant called Detective Simpkins to the stand and introduced appellant's videotaped interview with Detective Simpkins. In the interview, appellant was crying. Appellant claimed that he found out Britnee was cheating on him, and he admitted that he confronted her about it upstairs in the apartment. He admitted that he shot Britnee after she told him that she did not care about him. Appellant also stated during the interview that after he shot Britnee, he put the gun to his head to kill himself, but Mr. Sims stopped him. After the defense rested, appellant renewed his directed-verdict motion "word-for-word." The circuit court denied the motion.

During jury-instruction discussions, appellant proposed an instruction for manslaughter based on extreme emotional disturbance. He argued that his interview with Detective Simpkins shortly after the murder showed that he was crying and having "a complete emotional breakdown." The State objected to the instruction and explained that, in order to give the extreme-emotional-disturbance instruction, there had to be some provocation. The State argued that, here, there was no evidence that the victim threatened appellant before the murder. The circuit court agreed with the State and rejected appellant's request for the extreme-emotional-disturbance instruction. Appellant thereafter proffered the instruction for our review on appeal.

The jury found appellant guilty of murder in the first degree, that appellant had employed a firearm as a means of committing murder in the first degree, and that appellant had committed the murder in the first degree in the presence of a child. The circuit court sentenced appellant to forty years' imprisonment for murder in the first degree, fifteen years' imprisonment for the firearm enhancement, and ten years' imprisonment for the in-the-presence-of-a-child enhancement.^[2] This appeal followed.

II. Sufficiency

We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Armstrong v. State 2020 Ark. 309, 607 S.W.3d 491. In reviewing a sufficiency challenge, we assess the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id. We will affirm a judgment of conviction if substantial evidence exists to support it. Id. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resorting to speculation or conjecture. Id. Circumstantial evidence may provide a basis to support a conviction, but it must be consistent with the...