Damont Ewells v. State of Arkansas
This text of 2020 Ark. App. 321 (Damont Ewells v. State of Arkansas) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Cite as 2020 Ark. App. 321 Reason: I attest to the accuracy and integrity of this ARKANSAS COURT OF APPEALS document Date: 2021-06-23 11:31:15 Foxit PhantomPDF Version: DIVISION IV 9.7.5 No. CR-20-8
Opinion Delivered: May 27, 2020
DAMONT EWELLS APPEAL FROM THE LINCOLN APPELLANT COUNTY CIRCUIT COURT [NO. 40CR-17-114] V. HONORABLE JODI RAINES DENNIS, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED
KENNETH S. HIXSON, Judge
Appellant Damont Ewells appeals after he was convicted by a Lincoln County Circuit
Court jury of manslaughter and was sentenced as a habitual offender to serve a total of 240
months’ imprisonment. On appeal, appellant contends that the trial court erred in denying
his motion for directed verdict because the evidence was insufficient to support his
conviction. We affirm.
I. Relevant Facts
Appellant was charged with manslaughter for recklessly causing the death of James
Walker in violation of Arkansas Code Annotated section 5-10-104 (Repl. 2013) and as a
habitual offender under Arkansas Code Annotated section 5-4-501. A jury trial was held
on August 27, 2019, and the following evidence was presented.
Both appellant and Mr. Walker were inmates and were housed in the same barracks
at the Arkansas Department of Correction Cummins Unit. On September 19, 2017, appellant and Mr. Walker were involved in a verbal argument in the bathroom area of the
barracks. Two other inmate witnesses, Fred Warren and Alan Tyson, testified that they saw
appellant throw a single punch, which hit Mr. Walker in the jaw, “knocked” him out, and
caused him to fall backward and hit the back of his head on the floor. The witnesses further
testified that after appellant punched Mr. Walker, appellant immediately left the area and
did not attempt to aid Mr. Walker, who was left lying on the floor with blood pooling
around his head.
Sergeant Brandon Baker, a ten-year employee of the Cummins Unit, testified that
he was working when the incident occurred and that he responded to the crime scene
moments after it happened. He saw Mr. Walker laid out on the floor in a pool of blood
that was coming from the back of his head. Mr. Walker was faintly moving at the time.
Sergeant Baker called for medical assistance.
Trooper Billy McCradic, an investigator for the Arkansas State Police, testified that
he arrived at the crime scene after Mr. Walker’s body had already been removed and the
area cleaned. He explained that Mr. Walker was alive when he was removed. Mr. Walker
was transported to UAMS where it was determined that he was brain dead. According to
Trooper McCradic, life support was subsequently removed the next day. Trooper
McCradic explained that there was no camera footage because the incident took place in
the shower area of the barracks. However, through interviews and statements, he
ascertained that Mr. Walker had been struck in the face and fell back into the shower,
striking the back of his head.
2 Dr. Jennifer Forsyth, the medical examiner at the Arkansas State Crime Laboratory,
testified that she reviewed Mr. Walker’s case. She stated that it was determined that
Mr. Walker died from blunt-force trauma to the back of his head and that it created swelling
in the brain. On cross-examination, Dr. Forsyth explained that the blunt-force-trauma
wound was consistent with falling and hitting one’s head on the ground.
Appellant testified on his own behalf. He explained that fighting was normal in
prison and that he did not intend to knock Mr. Walker down. He testified that he
remembered going to the bathroom area before the incident, and he admitted getting into
a verbal altercation with Mr. Walker. Although appellant testified that he was told he hit
Mr. Walker and did not deny doing so, he stated that he had no independent recollection
of hitting Mr. Walker. Instead, he claimed that Mr. Walker must have said something that
made him angry, which caused him to have a “blackout” about the event.
The jury found appellant guilty, and he was sentenced as a habitual offender to serve
a total of 240 months’ imprisonment. This appeal followed.
II. Motion for Directed Verdict
Appellant specifically argues on appeal that the trial court erred in denying his motion
for directed verdict because the State failed to prove the requisite mental state of
“recklessness” required for the offense of manslaughter. A motion for a directed verdict is
a challenge to the sufficiency of the evidence. Starling v. State, 2016 Ark. 20, 480 S.W.3d
158. On appeal from a denial of a motion for a directed verdict, the sufficiency of the
evidence is tested to determine whether the verdict is supported by substantial evidence,
direct or circumstantial. Id. In determining whether there is substantial evidence to support
3 the verdict, this court reviews the evidence in the light most favorable to the State and
considers only that evidence which supports the verdict. Id. Substantial evidence is that
evidence which is of sufficient force and character to compel a conclusion one way or the
other beyond suspicion or conjecture. Id.
Before addressing the merits of appellant’s argument, we must first determine
whether his argument regarding whether the State proved recklessness is preserved. Rule
33.1 of the Arkansas Rules of Criminal Procedure (2019) provides the following in relevant
part:
(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor.
....
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal at the close of all of the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal. If for any reason a motion or a renewed motion at the close of all of the evidence for directed verdict or for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate review on the question of the sufficiency of the evidence.
At the end of the prosecution’s case, appellant specifically argued two grounds in his
motion for directed verdict: (1) there was a lack of any testimony that he did anything
reckless; and (2) no witness made an in-court identification that he was the individual that
struck the victim. At the close of all the evidence, appellant stated, “I would renew my 4 motion for a directed verdict for lack of identification of this person.” Because appellant
did not specifically renew or otherwise incorporate by reference his previous argument
regarding recklessness in the above-quoted language at the close of all evidence, the State
contends that appellant’s argument made on appeal is not preserved. We agree. In Bowman
v. State, we explained that when an appellant makes a second motion for directed verdict,
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2020 Ark. App. 321, 603 S.W.3d 210, Counsel Stack Legal Research, https://law.counselstack.com/opinion/damont-ewells-v-state-of-arkansas-arkctapp-2020.