Gould v. State

1

2023 Ark.App. 227

KRISTOPHER GOULD APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-22-404

Court of Appeals of Arkansas, Division I

April 19, 2023

APPEAL FROM THE POINSETT COUNTY CIRCUIT COURT [NO. 56CR-20-227] HONORABLE PAMELA HONEYCUTT, JUDGE

Benjamin W. Bristow, for appellant.

Leslie Rutledge, Att'y Gen., by: Rachel Kemp, Sr. Ass't Att'y Gen., for appellee.

ROBERT J. GLADWIN, JUDGE

Kristopher Gould appeals his December 9, 2021 conviction on a charge of felony negligent homicide, in violation of Arkansas Code Annotated section 5-10-105(a)(1)(A), (B) and (a)(2) (Repl 2013). He argues that the circuit court committed reversible error when it denied his motion for directed verdict because the State did not prove each element of negligent homicide and when it did not allow a jury instruction on the lesser-included offense of misdemeanor negligent homicide. We affirm.

I. Facts and Procedural History

On June 12, 2020, the State filed an information alleging that Gould had committed the crimes of negligent homicide, a Class B felony, in violation of Ark. Code Ann. § 5-10-105(a); and of possession of an open container containing alcohol in a motor vehicle, a Class C misdemeanor, in violation of Ark Code Ann. § 5-71-218 (Supp. 2021). The charges stemmed from allegations that Gould hit and killed Preston Brayfield as a result of his driving his car while intoxicated and at a high rate of speed through a construction zone where Brayfield was doing roadwork on Interstate 555 North near Tyronza.

A jury trial was held on December 7-8, during which the State offered testimony from several witnesses. Arkansas State Police Trooper Tommy Fitzgerald, who investigated the fatal vehicle accident, explained that the accident happened on May 30 on I-555 North in a construction zone on a bridge at the Tyronza River. Trooper Fitzgerald said he arrived at the scene around 7:44 p.m., and he confirmed that it was still daylight at the time. Trooper Fitzgerald testified that he used measurements taken at the scene to produce computergenerated diagrams depicting the accident at precrash, crash, and postcrash stages. Using the diagrams, Trooper Fitzgerald explained that the inside northbound lane of traffic on I-555 had been closed-indicated by orange barrels-up to two miles ahead of the construction zone where Brayfield was working at the time of the accident.

Trooper Fitzgerald testified that, from the debris, blood, and other evidence at the scene, he determined that the fatal impact took place in the closed northbound lane. Among the evidence in the closed lane, Trooper Fitzgerald found Brayfield's body, including his right leg, which had been traumatically amputated in the accident, as well as Brayfield's hat and boot. Trooper Fitzgerald noted that tire markings at the scene indicated that, after the impact, Gould's car left the closed northbound lane, crossed over the open northbound lane of traffic and shoulder, and ultimately rolled over in an adjacent field. Trooper Fitzgerald testified that he had "[n]o doubt whatsoever" that the impact occurred inside the closed lane of traffic at the construction site, but he was unable to determine exactly when Gould had entered the closed lane.

Trooper Fitzgerald also testified that, when he talked to Gould at the scene, he smelled "an odor of intoxicants coming from [Gould]" and observed that "[Gould's] eyes were bloodshot[,]. . . [and] his speech was slurred." Additionally, Trooper Fitzgerald saw "a cooler in the front floorboard" of Gould's car "as well as a bunch of empty [Busch Light] beer cans." He stated that he found more Busch Light beer cans and a bottle of liquor inside the cooler. Also, "in the debris field from where [Gould's] car had rolled over, [he] noticed there was a Busch Light can in . . . a neoprene koozie." Trooper Fitzgerald noted that Gould admitted to him "that he drank some earlier that day."

Trooper Fitzgerald pointed out that he obtained a warrant for a blood draw and transported Gould to a hospital where he watched hospital staff draw Gould's blood. He subsequently took custody of the blood sample and personally delivered it to the Arkansas State Crime Laboratory.

Lauren Havens, a forensic toxicologist with the Arkansas State Crime Laboratory, testified that she analyzed Gould's blood sample and determined that the blood-alcohol concentration was 0.326, or approximately four times more than the "legal limit" of 0.08.

Corporal Jay Bryan with the Arkansas State Police testified as an expert in the field of event-data recording. He said the "black box"-or event-data recorder-from Gould's car indicated that the airbag deployed when the car collided with Brayfield in a frontal impact. He said it also showed that the car was traveling at a rate of ninety-five miles an hour two and a half seconds before the impact and that the brakes were not engaged at that point. Corporal Bryan stated that the brakes were engaged somewhere between two and two and a half seconds before the impact. He testified that at one and a half seconds before impact, the car was traveling at seventy-one miles an hour, and at a half second before impact, it was traveling at sixty-seven miles an hour. Corporal Bryan explained that, allowing a 4 percent margin of error for the speedometer, he calculated a speed range of between sixty-nine and seventy-three miles an hour at the time of impact.

Jennifer Forsyth, a forensic pathologist with the Arkansas State Crime Laboratory, testified that Brayfield's death was caused by "multiple blunt force injuries," including multiple dislocated and fractured bones; tears in his brainstem, spinal cord, aorta, esophagus, trachea, liver, spleen, and lungs; "and a traumatic amputation of the right lower leg." She testified that no other factors contributed to Brayfield's death, noting he was "a well-developed, well-nourished white adult male[.]"

After the State rested, and again after the close of all the evidence, Gould unsuccessfully moved for a directed verdict on the ground that the evidence was insufficient to prove that he negligently caused Brayfield's death. Gould also unsuccessfully requested and thereafter proffered a jury instruction on misdemeanor negligent homicide, which specifically included language that "[he] negligently caused the death of Preston Brayfield."

Gould argued that there was a rational basis in the evidence from which the jury could conclude that Brayfield's death was not caused by his operating a vehicle while intoxicated or with a blood-alcohol concentration of 0.08 or more, suggesting instead that "[i]t could be as a result of [Brayfield's] stepping out in front of traffic[.]" The circuit court denied Gould's request to give the proffered instruction and instructed the jury only on felony negligent homicide.

The jury found Gould guilty of negligent homicide, and he was sentenced to fifteen years in the Arkansas Department of Correction pursuant to a sentencing order entered on December 9. Gould filed a timely notice of appeal on January 6, 2022.

II. Discussion

A. Sufficiency of Evidence Regarding Negligent Homicide

On appeal, a motion for directed verdict is treated as a challenge to the sufficiency of the evidence. McEuen v. State, 2023 Ark.App. 65, at 5, 660 S.W.3d 615, 619. In reviewing a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the State, considering only evidence that supports the verdict. Id. We will affirm the verdict if substantial evidence supports it. Id. at 6, 660 S.W.3d at 619. Substantial evidence is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion without resorting to speculation or conjecture. Id. Substantial evidence may be direct or circumstantial. Id. But circumstantial evidence is substantial only if it excludes every reasonable hypothesis other than the guilt of the accused. Id.

The jury may consider evidence in light of the jurors' observations and experiences and is entitled to draw reasonable inferences from the evidence. King v. State, 2021 Ark.App. 339, at 3-4. Witness credibility is also an issue for the fact-finder, who is free to believe all or a portion of any witness's testimony and whose duty it is to resolve questions of conflicting testimony and inconsistent evidence. E.g., Swanigan v. State, 2019 Ark.App. 296, at 9, 577 S.W.3d 737, 745.

"A person commits the offense of negligent homicide if he . . . negligently causes the death of another person, not constituting murder or manslaughter, as a result of operating a vehicle . . . [w]hile intoxicated[]" or with "an alcohol concentration of eight hundredths (0.08) or more in [his] breath or blood based upon the definition of alcohol concentration in § 5-65-204, as determined by a chemical test of [his] blood, urine, breath, saliva, or other bodily substance." Ark. Code Ann. § 5-10-105(a)(1)(A), (B) &(a)(2). A person "acts negligently with respect to attendant circumstances or a result of his . . . conduct when [he] should be aware of a substantial and unjustifiable risk that the attendant circumstances exist, or the result will occur." Ark. Code Ann. § 5-2-202(4)(A) (Repl. 2013). The risk must be of such a nature and degree that the actor's failure to perceive the risk involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation considering the nature and purpose of the actor's conduct and the circumstances known to the actor. Ark. Code Ann. § 5-2-202(4)(B).

In order to sustain a conviction, the State was required to prove that Gould negligently caused the death of Brayfield. Gould notes that the State did not present any witnesses who observed the...