A.M. v. State

APPEAL FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46JV-17-35] HONORABLE KIRK JOHNSON, JUDGE

Robert M. "Robby" Golden, for appellant.

Leslie Rutledge, Att'y Gen., by: Christopher R. Warthen, Ass't Att'y Gen., for appellee.

BRANDON J. HARRISON, Chief Judge.

A.M. was adjudicated delinquent on charges of capital murder and aggravated robbery. He now appeals the circuit court's rulings that (1) found him fit to proceed and (2) denied his motion for directed verdict as to both charges. We affirm the circuit court's rulings.

On 2 February 2017, twelve-year-old A.M. was arrested for the murder of Christa Shockley. The State's petition for delinquency explained that A.M. had entered a convenience store, shot the clerk (Shockley) seven times, and exited the store. Moments later, A.M. reentered the store, took a vapor cigar pack and headphones, and exited again. The State's petition alleged that A.M. had committed aggravated robbery and capital murder by causing a death in the course of or in furtherance of a felony, or alternatively by causing a death in a premeditated and deliberate manner. Due to A.M.'s age, the State could not charge him as an adult in the criminal division of circuit court. The State requested an

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extended-juvenile-jurisdiction (EJJ) designation, which was granted by the circuit court.^[1]The court determined that A.M. was fit to proceed, and a jury trial commenced on 6 July 2020. The jury found that A.M. had committed the offenses as charged, and he was adjudicated delinquent and committed to the Division of Youth Services. Specific facts related to his points on appeal are discussed below. Although A.M.'s sufficiency argument is his second point on appeal, we address this issue first because double-jeopardy concerns require a review of the sufficiency of the evidence prior to a review of any asserted trial errors. Stewart v. State, 2010 Ark.App. 323, 374 S.W.3d 811.

I. Directed Verdict

The circuit court convened A.M.'s jury trial on 6 July 2020, at which the following pertinent evidence was presented. Les Moody, a former law enforcement officer with the Miller County Sheriff's Office, responded to the E-Z Mart store in Fouke at approximately 3:10 a.m. on 2 February 2017. He viewed the video from the store's security system and saw a white male enter the store and start shooting at the store's clerk, Christa Shockley. The suspect was wearing a red hoodie and a black backpack, and a white bandana with black markings was covering his face. Moody reviewed video footage from earlier that evening and saw the same suspect go in and out of the store four different times; the suspect was not wearing a face covering in the earlier footage, and Moody was able to capture an

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image of the suspect's face, which he sent to the investigators. One of the investigators immediately recognized the suspect as A.M.

Moody described A.M.'s movements that evening as shown in the store's video and noted that at one point, when Shockley was out of sight and presumably in the store's refrigerated section in the back of the store, A.M. had gone behind the counter and taken some electronic cigarettes; he then walked to the front of the counter, took an energy drink, and exited the store. Less than thirty minutes later, A.M. reentered the store, shot Shockley, and exited the store again. Within ten minutes, A.M. entered the store once again and took additional items from the store.

Officer Wesley Penny also responded to the scene and recognized the photo of A.M. Penny had met A.M. and his family approximately two weeks before the incident, when Penny found A.M. walking alone along the highway late at night and had taken him home. Penny and Moody visited A.M.'s residence at approximately 8:00 a.m., but there was no one home. Penny called the resource officer at the middle school and asked him to locate A.M. and escort A.M. to his (the officer's) office. The resource officer did so, and Penny and Moody went to school and placed A.M. under arrest. A.M.'s father gave Penny permission to interview A.M., and A.M. confessed to the shooting and stealing items from the store. When asked why he had shot the clerk, A.M. first said he did not know but later said that she looked like a friend of his mother's who used to beat him. He admitted that he had taken his father's gun and was aware that he had to return home by a certain time to return the gun before his father woke up.

After the State rested, defense counsel moved for a directed verdict:

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Your Honor, let me take the felony murder first. I would argue that there has not been sufficient proof to show that an aggravated robbery occurred. There was a theft and there was a killing, but there's no nexus or connection between the two, and so I would contend that the fact finder would have to resort to speculation or conjecture to find that aggravated robbery itself has occurred, that someone employed force as a means of committing a theft, or employed that force in-or resisting apprehension of a theft

Defense counsel also asserted that the premeditated and deliberate portion of the capital-murder allegation had not been established by the evidence. The circuit court denied the motion, finding that

there is sufficient evidence to go forward on the aggravated robbery. Motion for directed verdict is denied as to that issue, as well as to the capital murder issue. The Court finds that the video that's been shown clearly shows that this was premeditated and deliberate. As to the aggravated robbery, it appeared to the Court that the Defendant shot the victim, walked over close to her, walked outside the store, went back in, and it appeared that he waited until she had either passed out or expired, came back in and took the items of property which were recovered from him. And I think that would fit the definition of aggravated robbery and that the murder was for the purpose of committing a theft or resisting apprehension immediately thereafter.

Defense counsel renewed the motion for directed verdict at the appropriate times later in the trial.

On appeal, A.M. challenges the circuit court's denial of his directed-verdict motion. 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

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without resorting to speculation or conjecture. Id. Circumstantial evidence may provide a basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Id. Whether the evidence excludes every other hypothesis is left to the jury to decide. Id. Further, the credibility of witnesses is an issue for the jury, not the court; the trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.

Aggravated robbery occurs if, with the purpose of committing a felony or misdemeanor theft, a person employs or threatens to employ physical force upon another person and is "armed with a deadly weapon" or inflicts death upon another person. Ark. Code Ann. § 5-12-103(a) (Repl. 2013). A.M. committed capital-felony murder if (1) he committed or attempted to commit aggravated robbery and "in the course of and furtherance of" that aggravated robbery he or an accomplice caused the death of another person "under circumstances manifesting extreme indifference to the value of human life," or (2) with the premeditated and deliberated purpose of causing the death of another person, he causes the death of a person. Ark. Code Ann. § 5-10-101(a)(1)(B) & (3) (Repl. 2013).

In a capital-felony murder case, the State must first prove the felony, so the felony becomes an essential element of the murder charge. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). A strict causal relationship between the felony and the murder is unnecessary; rather, "the State need only prove that the robbery and the murder were parts of the same transaction, or occurred within the same brief interval." See Norris v. State, 2010 Ark. 174, at 6, 368 S.W.3d 52, 56

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(quoting Clay v. State, 324 Ark. 9, 12, 919 S.W.2d 190, 191-92 (1996)). Our supreme court has held,

Where the robbery and the killing are so closely connected in point of time, place[, ] and continuity of action as to constitute one continuous transaction[, ] it is proper to consider both as a single transaction and the homicide as a part of the res gestae of the robbery. The sequence of events is unimportant and the killing may precede, coincide with[, ] or follow the robbery and still be committed in its perpetration.

Jenkins v. State, 350 Ark. 219, 227-28, 85 S.W.3d 878, 882-83 (2002) (quoting Grigsby v. State, 260 Ark. 499, 508-09, 542 S.W.2d 275, 280-81 (1976) (citations omitted)).

A.M. does not dispute that he was armed with a deadly weapon or that he inflicted death upon another person. He does argue, however, that the State failed to prove that he did so with the purpose of committing a theft. He contends that the undisputed facts show that he entered the store, shot the clerk without demanding any money or property from her, and then exited the store. He then reentered the store and took some items from the store. A.M. asserts that the State failed to connect the...