Smith v. State

678 S.W.3d 872

Bryan SMITH, Appellant

v.STATE of Arkansas, Appellee

No. CR-22-460

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered November 8, 2023

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT [NO. 17CR-19-980], HONORABLE MICHAEL MEDLOCK, JUDGE

Erin W. Lewis, for appellant.

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

RITA W. GRUBER, Judge

₁A Crawford County jury convicted appellant Bryan Smith of attempted first-degree battery of a law enforcement officer and fleeing and sentenced him to concurrent sentences of 480 months’ and 180 months’ imprisonment.¹ On appeal, appellant challenges the sufficiency of the evidence to support the attempted first-degree battery conviction as well as three evidentiary rulings, We affirm.

I. Facts

₂On October 26, 2021, the State filed an amended felony information charging appellant with attempted first-degree battery of a law enforcement officer,² fleeing (vehicle), and first-offense DWI.³ The information included a habitual offender sentencing enhancement, asserting that appellant had been previously convicted of four or more felonies. A jury trial was held on March 15, 2022.

Trooper John Bass with the Arkansas State Police testified that he came into contact with appellant on September 1, 2019. Bass had been informed by the Crawford County Sheriff’s Department that appellant had active warrants and was staying in the Lancaster Road area. Bass parked in the area and looked for two vehicles—a white four-door sedan and a black Dodge Durango—that appellant may have been riding in or driving. After an hour, Bass went on patrol and observed the vehicles near the intersection of "282 and 71." He initiated a traffic stop of the Durango for having a broken taillight. The Durango stopped on a private road and had two occupants—a female driver and a male passenger. Bass identified the passenger as appellant on the basis of information he had received.

Bass testified that appellant was not forthcoming with his identification and became argumentative when Bass told him he was not wearing his seatbelt, at which point Bass asked appellant to get out of the vehicle. Bass stated that appellant began to play "cat and mouse" ₃with him, causing Bass to pull out his taser in order to get appellant to comply. Bass unsuccessfully attempted to remove appellant from the passenger side. Bass then tried to reach inside the driver’s window and pull appellant from the passenger side of the vehicle as appellant was "actively trying to put the vehicle into drive." Appellant succeeded in putting the car in drive, and Bass returned to his patrol car to pursue appellant. Bass performed a PIT (precision immobilization technique) maneuver by intentionally ramming the front of his Charger into the side of the Durango to disable it. The Durango was still operable, but the back-left wheel or axle had broken. Bass then turned his Charger around to create some distance in case appellant had a firearm and parked it to prevent appellant from gaining access to the county road. Bass opened his door and stood behind it for further protection in the event appellant had a firearm. Bass testified that appellant then drove the Durango directly at him, at which point Bass took a few steps backwards and deployed his firearm to disable the vehicle and prevent his injury.⁴ Bass said that he would have been hit by appellant had he not taken those actions. The dashcam video from Bass’s patrol car was introduced into evidence and played for the jury.

On cross-examination, Bass said that he fired three shots, which hit the grill, a tire, and the driver’s-side door. He stated that appellant was driving about five or ten miles an hour, and the vehicle veered to the right after hitting the front of the patrol car and traveled toward the entrance of the driveway.

₄Trooper Roy Moomey of the Arkansas State Police responded to oversee the crime scene and investigate the incident involving Bass and appellant. Moomey conducted an interview with appellant, and the audio recording of the interview was played for the jury. In the interview, appellant indicated he did not intend to hit or hurt Bass but was trying to ran from him. Moomey reviewed the video from the incident and opined that Bass was justified in his use of force, meaning that he did not use excessive force. Moomey explained that officer-involved shootings are always investigated to determine whether they are justified. He elaborated that they "gather all the evidence, do all the interviews and then we will present that case to the prosecutor to determine whether or not charges [against the officer] are justified." Moomey said that his investigation confirmed his belief that appellant made a choice to push the gas pedal while the vehicle was pointed toward Bass.

Tabitha Medford, deputy clerk of the Crawford County Circuit Clerk’s Office, testified for the State. Through her testimony, the State introduced an arrest warrant issued as a result of appellant’s failure to appear for court on January 24, 2022, in the case at issue. She testified that the court also ordered a bond forfeiture.

At the close of the State’s case, appellant moved for a directed verdict on attempted battery arguing that the State failed to prove that appellant intended to cause serious physical injury. The circuit court denied the motion. The defense did not call any witnesses and renewed its motion for directed verdict, which was again denied. The jury found appellant guilty of attempted first-degree battery of a law enforcement officer and fleeing. Appellant ₅was sentenced as a habitual offender to respective sentences of forty years’ and fifteen years’ imprisonment, to be served concurrently. This appeal followed.

II. Sufficiency of the Evidence

[1–3] The test for determining sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial; substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Wheaton v. State, 2021 Ark. App. 281, 2021 WL 2232088. Evidence is viewed in the light most favorable to the State; only evidence that supports a verdict is considered. Id. Weighing the evidence, reconciling conflicts in the testimony, and assessing credibility are all matters exclusively for the trier of fact—in this case, the jury. Gillard v. State, 2019 Ark. App. 438, at 2, 586 S.W.3d 703, 705.

[4–6] A criminal defendant’s intent or purpose, being a state of mind, can seldom be positively known to others, so it ordinarily cannot be shown by direct evidence but may be inferred from the facts and circumstances. Rose v. State, 2018 Ark. App. 446, 558 S.W.3d 415. Because intent cannot be proved by direct evidence, the fact-finder is allowed to draw on common knowledge and experience to infer it from the circumstances. Id. Because of the difficulty in ascertaining a defendant’s intent or state of mind, a presumption exists that a person intends the natural and probable consequences of his or her acts. Id.

A person commits battery in the first degree if "the person causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life." Ark. Code Ann. § 5-13-201(a)(3) (Supp. 2019). "When causing a particular ₆result is an element of the offense, a person commits the offense of criminal attempt if, acting with the kind of culpable mental state otherwise required for the commission of the offense, the person purposely engages in conduct that constitutes a substantial step in a course of conduct intended or known to cause the particular result." Ark. Code Ann. § 5-3-201(b) (Repl. 2013). The conduct is not a "substantial step" unless it is "strongly corroborative of the person’s criminal purpose." Ark. Code Ann. § 5-3-201(c).

Appellant argues that the evidence was insufficient to prove that he "purposely engaged in conduct that constituted a substantial step intended to culminate in the commission of causing a serious physical injury to the officer." He suggests that his actions, at most, constituted "misdemeanor assault." He states that his sole intention in driving away was to flee, and the circumstances do not amount to circumstances manifesting extreme indifference to the value of human life. He contends that the evidence reflects that his intended purpose was to flee from Bass and not to cause serious physical injury. He specifically points to the fact that he was traveling at a slow rate of speed. Appellant argues that he was only attempting to "evade capture" when he "inadvertently hit" the front of the trooper’s car and thus did not intend to cause serious physical injury. He suggests there was no evidence presented that he was trying to hit Bass and merely missed.

In support of his argument that the fact that he hit the trooper’s vehicle at a slow rate of speed is not evidence of an attempt to commit first-degree battery, appellant cites Mitchell v. State, 290 Ark. 87, 717 S.W.2d 195 (1986). Mitchell, however, involved a shooting at close range. The supreme court affirmed the attempted-battery conviction, holding that the ₇defendant took a substantial step to carry out his purpose to kill or seriously injure the victim, but it was avoided by a misfire. Id. at 90, 717 S.W.2d at 196. Appellant states that the defendant’s intent to hurt the victim in Mitchell was apparent because he shot at someone at close range.

Appellant cites multiple cases in which battery convictions were affirmed where there was substantial evidence that the defendant acted with the purpose to cause serious physical injury under circumstances manifesting extreme indifference to the value of human life. See Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000) (repeated kicking to victim’s head while victim was down); Rongey v. State, 2018 Ark. App. 617, 566 S.W.3d 161 (intentionally firing a weapon that struck a...