Dillard v. State

680 S.W.3d 478

2023 Ark. App. 580

Jarvis DILLARD, Appellant

v.STATE of Arkansas, Appellee

No. CR-23-278

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered December 13, 2023

APPEAL FROM THE DREW COUNTY CIRCUIT COURT [NO. 22CR-21-264], HONORABLE ROBERT B. GIBSON III, JUDGE

Potts Law Office, by: Gary W. Potts, Monticello, for appellant.

Tim Griffin, Att’y Gen., by: Michael Zangari, Ass’t Att’y Gen., for appellee.

BART F. VIRDEN, Judge

₁A Drew County jury convicted appellant Jarvis Dillard of manslaughter and second-degree criminal mischief. He was sentenced as a habitual offender to an aggregate term of forty-five years’ imprisonment. Dillard argues that the trial court erred in denying his directed-verdict motion because the State failed to prove that he acted with a reckless mental state. We affirm.

I. Standard of Review

[1–7] We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Dulle v. State, 2019 Ark. App. 378, 582 S.W.3d 28. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id. We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character ₂that it will, with reasonable certainty, compel a conclusion one way or the other without resorting to speculation or conjecture. Id. Circumstantial evidence may constitute substantial evidence to support a conviction only if it excludes every other reasonable hypothesis other than the guilt of the accused, and the jury is charged with making this determination. Id. It is well settled that the credibility of witnesses is an issue for the jury and not this court. Crews v. State, 2017 Ark. App. 670, 536 S.W.3d 182. The jury is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.

II. Trial Testimony

The State presented evidence that on November 12, 2021, Dillard pulled into the Walmart parking lot in Monticello because he claimed to have gotten lightheaded. He pulled into a parking space to "get his head straight." When he began to feel better after sitting for several minutes, Dillard backed out of the parking space. Joanna Savage, a customer who had just pulled into the lot to park, honked her horn at him because he had backed out in front of her. Dillard stopped his car, and Savage honked again. Savage testified that it appeared as though Dillard "just had his foot on the accelerator," which caused his car to spin around in a circle, hitting other cars, resulting in over $5,000 in property damage. Dillard’s car also tragically struck and killed another customer, Esther Hudson, an eighty-six-year-old grandmother who had just come out of Walmart with her shopping cart. The surveillance video from Walmart was played for the jury.

₃Officer Ted Williams with the Monticello Police Department (MPD) testified that he responded to the scene and spoke with Dillard. He said that Dillard had slurred speech and that he appeared nervous and was sweating.

In an interview with Jason Akers, chief of the MPD, Dillard said that he had panicked when Savage honked her horn at him and that he had thought he was pressing his car’s brake but had instead pressed the accelerator. When informed that he had tested positive for methamphetamine and marijuana, Dillard admitted that he had snorted methamphetamine and smoked marijuana a week and a half before the incident.

Akers testified that marijuana can impair a person’s driving ability. Likewise, when asked whether methamphetamine could impair a person’s ability to drive and his thinking skills, Akers replied, "Absolutely." Akers testified that methamphetamine can also affect a person’s ability to sleep because it is a stimulant. According to Akers, Dillard gave conflicting accounts about his direction of travel—he had been going either to or from McGehee and either to or from Pine Bluff. Akers noted that Monticello is not on the way between those two points. He also said that Dillard had been crying but also appeared to be calm and even "disconnected."

James Slaughter, a drug-recognition expert and an employee with the MPD’s drug task force, testified that he evaluated Dillard later on the day of the incident and prepared a report that was introduced into evidence. Slaughter testified to "numerous clues of impairment." He said that, while Dillard initially claimed to have last used methamphetamine and marijuana on Halloween night, he eventually admitted that he had ₄used those drugs three or four days before the incident. Slaughter said that Dillard had also admitted he had gotten only sixty to ninety minutes of sleep the night before the incident. According to Slaughter, Dillard was impaired by a central nervous system (CNS) stimulant, which includes methamphetamine.

A urine test was administered by Stephanie Harris, Dillard’s parole officer, while Dillard was at the hospital after the incident. She said that Dillard was positive for both methamphetamine and marijuana.

Dillard took the stand and admitted that his decision to back out of the parking space was made when he did not have "a clear head." On cross-examination, the following colloquy occurred:

The Prosecutor: And despite knowing that operating a car is a dangerous activity, and the things that were physically wrong with you at that moment, you still backed that car out of that spot?

Dillard: Yes, sir.

….

The Prosecutor: And you disregarded that danger by backing out of that parking lot at that time?

Dillard: Yes.

The jury found Dillard guilty of manslaughter and second-degree criminal mischief. He was sentenced as a habitual offender to forty-five years’ imprisonment.

III. Discussion

₅A person commits manslaughter if he recklessly causes the death of another person. Ark. Code Ann. § 5-10-104(a)(3) (Repl. 2013). A person commits criminal mischief in the second degree if he recklessly destroys or damages any property of another person. Ark. Code Ann. § 5-38-204(a)(1) (Repl. 2013). A person acts recklessly with respect to attendant circumstances or a result of his conduct when the person consciously disregards a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur. Ark. Code Ann. § 5-2-202(3)(A) (Repl. 2013). The risk must be of a nature and degree that disregard of the risk constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. Ark. Code Ann. § 5-2-202(3)(B).

[8, 9] Because a criminal defendant’s intent can seldom be proved by direct evidence, it must usually be inferred from the circumstances surrounding the crime. Caple v. State, 2019 Ark. App. 41, 569 S.W.3d 353. The fact-finder need not lay aside its common sense in evaluating the ordinary affairs of life and may consider and give weight to any false, improbable, and contradictory statements made by the defendant to explain suspicious circumstances when determining criminal knowledge and intent. Id.

[10] Dillard argues that he was not under the influence of alcohol at the time of the incident and that a blood test analyzed by the Arkansas State Crime Laboratory indicated that he was positive for only marijuana. H...