Erik Wayne Dossey v. State of Arkansas

• Court: Court of Appeals of Arkansas
• Decided: April 15, 2026
• Status: Published

Opinion

Cite as 2026 Ark. App. 230 ARKANSAS COURT OF APPEALS DIVISION II No. CR-25-310

Opinion Delivered April 15, 2026

ERIK WAYNE DOSSEY APPEAL FROM THE GARLAND APPELLANT COUNTY CIRCUIT COURT [NO. 26CR-22-621] V. HONORABLE RALPH C. OHM, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED; REMANDED FOR CORRECTION OF SENTENCING ORDER

BART F. VIRDEN, Judge

A Garland County jury convicted appellant Erik Wayne Dossey of second-degree

unlawful discharge of a firearm from a vehicle; aggravated assault; and second-degree

endangering the welfare of a minor. In a separate phase of the trial, the jury also convicted

Dossey of possession of a firearm by certain persons (a felon). The jury sentenced him as a

habitual offender to an aggregate term of five years’ imprisonment. Dossey argues that there

was insufficient evidence to support his convictions. We affirm but remand for correction

of the sentencing order.1

1 Dossey was convicted of second-degree endangering the welfare of a minor for which he received a suspended one-year term in county jail; however, the sentencing order incorrectly shows that he was convicted of contributing to the delinquency of a minor with an imposed sentence of one year in jail. Also, the sentencing order does not reflect Dossey’s I. Background

On July 30, 2022, Dossey was driving through Hot Springs with his then-thirteen-year-

old son, Braiden, to pick up a pizza for dinner. Dossey, who was driving a BMW car, became

involved in a road-rage incident with Michael Windstein, who was driving a Ford F-150

truck. Windstein, who has worked at the Arkansas Department of Correction for seventeen

years, said that he was on his way to a barbeque with coworkers. In describing what

happened, Windstein said that

the BMW is slowing down as I’m coming up behind it, and it brake checks me[,] and [I] almost [ran] in[to] the back of it. And then I just, like, get over, get over, guy. And he—we get up on top of the rise from McLeod going to Higdon Ferry, it makes a little straightaway, and he finally gets over, and I’m starting to pass him. And as I’m passing him, I see his window roll down, and the windows are limousine-tinted dark[—]you couldn’t see anything in there. I look over, and he’s pointing a gun at me underneath his chin like this. (GESTURING). And I was like, really? So, I pass him, get over. About that time, I hear a ricochet off the roof of my truck. The bullet striking my truck.

Windstein, who often shoots at metal targets during his firearms training, testified

that a bullet ricocheting off of metal makes a distinct sound. Windstein further testified that

he called 911. He saw that Dossey was exiting, so he followed Dossey and gave the 911

dispatcher a description of Dossey’s vehicle and license-plate information. Windstein said

that, when Dossey reached a yield sign, he jumped out of his car and approached his

(Windstein’s) truck. He said that Dossey punched his driver’s-side mirror and door,

damaging both. Windstein accused Dossey of shooting his truck, which Dossey denied.

habitual-offender status. We thus remand for the limited purpose of fixing these clerical errors.

2 Windstein said that he did not know whether Dossey still had a gun in his hand and warned

him that he had a gun as well. Windstein said that he routinely carries a gun with him and

showed it to Dossey to “let him know.” Windstein said that Braiden then ran up beside

Dossey and that he (Windstein) “stopped dead in his tracks.” Windstein testified that he saw

a pistol in Dossey’s left front shorts pocket and made a decision that he “didn’t want to shoot

this man in front of this kid.” He said that knowing that Dossey’s gun was not in his hand

“de-escalated [the situation].” Windstein said that Dossey and Braiden then ran back to the

BMW and drove to Harbor Freight. Windstein testified that he continued to follow them

into the parking lot but that the 911 dispatcher told him to stop following them.

Chris Chapin and Stephen Parrott, patrol officers with the Hot Springs Police

Department, responded to Harbor Freight and saw the bullet mark on Windstein’s truck.

Officer Chapin then went to a gas station where Dossey had been stopped. Chapin said that

he searched Dossey’s car and found “[n]othing but a pizza.” Corporal Kevin Hampton with

the Garland County Sheriff’s Office testified that he had responded to a “BOLO” on the

BMW and followed Dossey into the parking lot of a gas station. Hampton said that Dossey

claimed, upon being put into a patrol car, that he was the one who had been shot at in traffic.

Sergeant Kevin Franklin with the Hot Springs Police Department testified that no gun was

found in Dossey’s car.

Phillip DeFoor, then a corporal with the Criminal Investigations Division of the Hot

Springs Police Department, interviewed Dossey, who said that he did not get out of the fast

lane quickly enough for Windstein, who began chasing him on the bypass and shooting at

3 him. Dossey admitted that he had gotten out of his car and damaged Windstein’s side mirror

but said that he had then jumped back into his car and driven away. DeFoor asked Dossey

whether he had shot at Windstein, and Dossey asked, “With what—my fingers?” Dossey said

that he did not have a gun because, if he had had a gun, he would have shot and killed

Windstein. Dossey was asked why he had not called 911, and he said that “[w]here I’m from[,]

you don’t call the police.” DeFoor interviewed Braiden as well and said that the boy seemed

uncomfortable—as though he was trying to protect his father. He said that Braiden described

hearing a loud pop, but he thought it was odd that Braiden could hear that sound coming

from another car traveling seventy miles an hour with the window open. DeFoor said that

he later interviewed Windstein and that “[Windstein] said as he went by [Dossey], he heard

a[n] impact, which, like I said from speaking with Braiden earlier, would be consistent of not

necessarily hearing a gunshot from another vehicle but hearing the impact on his vehicle.”

DeFoor said that he recognized the mark on Windstein’s truck as a bullet strike—as did

Officers Chapin and Parrott during their testimony. DeFoor was also asked about

inconsistencies in each side’s story and why he believed Windstein, and he said:

The big thing that stood out to me is [Dossey] acknowledged having a cell phone. You’re driving down the road, he claims that Mr. Windstein shot at him. He claims he didn’t have a firearm. He got in front of Mr. Windstein where he could have gotten away. He also had a cell phone where he could have called 911. He never called 911. Instead of getting away from the situation, he said [he] stops[,] blocking Mr. Windstein on an exit and confronts a person who he says he knew was armed when he [Dossey] wasn’t and says he knew this person had already shot at him. That does not seem like the actions of anybody with any common sense whatsoever.

4 At the conclusion of the State’s case, defense counsel moved for a directed verdict, which

was denied. Braiden and Dossey then testified. Defense counsel renewed his directed-verdict

motions, and they were denied again. The jury convicted Dossey of unlawful discharge,

aggravated assault, and second-degree endangering the welfare of a minor. The jury was then

instructed with respect to the charge of felon in possession of a firearm, and the State

introduced Dossey’s prior felony convictions. The jury returned a guilty verdict on that

charge as well. The jury then considered sentencing and decided on an aggregate term of five

years’ imprisonment. Dossey brought this appeal.

II. Standard of Review

This court treats a motion for directed verdict as a challenge to the sufficiency of the

evidence. Webb v. State, 2019 Ark. App. 436, 587 S.W.3d 252. In reviewing a challenge to

the sufficiency of the evidence, we determine whether the verdict is supported by substantial

evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to

compel a conclusion with reasonable certainty without resorting to conjecture. Kelly v. State,

2021 Ark. App. 160. We view the evidence in the light most favorable to the verdict, and

only evidence supporting the verdict will be considered. Webb, supra. We do not determine

the credibility of witnesses since this is an issue for the jury and not the court. Id. Here, the

jury, as the trier of fact, was free to believe all or part of any witness’s testimony and resolve

questions of conflicting testimony and inconsistent evidence. Id.

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. Ark.

5 R. Crim. P. 33.1(a). A motion for directed verdict shall state the specific grounds therefor.

Id. The failure of a defendant to challenge the sufficiency of the evidence at the times and in

the manner required will constitute a waiver of any question pertaining to the sufficiency of

the evidence to support the verdict or judgment. Ark. R. Crim. P. 33.1(c). A motion for

directed verdict based on insufficiency of the evidence must specify the respect in which the

evidence is deficient, and 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. Id. Moreover, to preserve for appeal the issue of the sufficiency of

the evidence to support a conviction on a lesser-included offense, a defendant’s motion for

directed verdict must address the lesser-included offense either by name or by apprising the

trial court of the elements of the lesser-included offense questioned. Brown v. State, 2015

Ark. App. 427, 468 S.W.3d 282.

III. Discussion

A. Unlawful Discharge of a Firearm from a Vehicle

A person commits second-degree unlawful discharge of a firearm from a vehicle if he

recklessly discharges a firearm from a vehicle in a manner that creates a substantial risk of

physical injury to another person or property damage to a home, residence, or other

occupiable structure. Ark. Code Ann. § 5-74-107(b)(1) (Supp. 2021).

Dossey argues that the trial court should have granted his motion for a directed

verdict because there was insufficient evidence that he recklessly fired a gun from his vehicle

given that he was not found with a gun; no shell casings were found; no gunpowder-residue

6 test was performed; no experts examined the alleged bullet mark on Windstein’s truck; and

no witness actually saw him fire a gun.

In moving for a directed verdict at trial, defense counsel said that, while the State may

have proved that Dossey acted recklessly, the State had failed to establish that Dossey

knowingly discharged a firearm from a vehicle with the expectation of causing physical injury.

When he renewed the motion, defense counsel said that the State had failed to establish that

Dossey had “a knowing mental state to display a firearm.” Dossey is bound by the scope and

nature of the directed-verdict motions at trial and cannot change the grounds on appeal.

Hudson v. State, 2025 Ark. 129, 720 S.W.3d 91. The argument Dossey makes on appeal was

not raised and ruled on below; thus, it is not preserved for our review. Id. Even if we were to

address the argument, the jury clearly did not believe the basic premise of Dossey’s argument

that he had no firearm to discharge. See id.; Webb, supra.

B. Aggravated Assault

A person commits aggravated assault if, under circumstances manifesting extreme

indifference to the value of human life, he purposely displays a firearm in such a manner

that creates a substantial danger of death or serious physical injury to another person. Ark.

Code Ann. § 5-13-204(a)(2) (Supp. 2021). Dossey argues that there was insufficient evidence

that he displayed a gun in a way that created a substantial danger of death or serious physical

injury to another person because he did not have gun. He asserts that “[t]he circumstantial

evidence in this case—a split-second eyewitness account from Mr. Windstein—was insufficient

to convict” him. Dossey contends that the State did not produce a firearm that he possessed;

7 no video or photographic evidence showing him with a firearm was introduced; no shells or

shell casings were found on his person or in his vehicle; and the State could not show, even

if this gun existed, that it was loaded. According to Dossey, an unloaded gun or an imaginary

one does not create a substantial danger of death or serious physical injury.

When defense counsel moved for a directed verdict below, he argued that the State

had failed to establish that a gun was actually pointed in the general vicinity of Windstein

and could not have presented a risk of death or serious physical injury to him. When he

renewed the motion, defense counsel added that there was no testimony from anyone

regarding the type of gun allegedly displayed—whether it was actually a firearm or just a BB

gun—and “whether or not there’s any opportunity for him to fire it at Mr. Windstein.”

Dossey’s argument on appeal has evolved and is presented to this court for the first time on

appeal. Hudson, supra. Because it was not properly preserved below, we will not address

Dossey’s argument but will simply point out that the jury was entitled to believe Windstein’s

account of the events—that he saw Dossey pointing a firearm at him and heard a bullet

ricochet off the cab of his truck. See id.; Webb, supra.

C. Possession of a Firearm by Certain Persons

Pursuant to Ark. Code Ann. § 5-73-103(a)(1) (Supp. 2021), no person who has been

convicted of a felony shall possess or own any firearm. Dossey argues that the trial court

should have directed a verdict with respect to this charge. He argues that, while it is

undisputed that he has prior felony convictions, the State failed to show that he possessed a

gun given that no gun was found in connection with the incident, and there was no evidence

8 that he owned a gun or carried a gun in his vehicle. Dossey contends that Windstein’s

account should be discredited because there were just two instances of “split-second”

observations by one eyewitness who had driven aggressively, brake checked him, sought a

confrontation, and threatened him with a gun. He points out that Windstein, who is familiar

with guns, did not identify the caliber of weapon he claimed that he (Dossey) possessed.

Dossey, however, failed to move for a directed verdict on the charge of possession of

a firearm by certain persons and has therefore waived his challenge to the sufficiency of the

evidence pursuant to Ark. R. Crim. P. 33.1(c). When a defendant’s dismissal argument is

made during a closing argument, it does not preserve a challenge to the sufficiency of the

evidence. Oliver v. State, 2016 Ark. App. 332, 498 S.W.3d 320. We will not address Dossey’s

argument for the first time on appeal.

D. Endangering the Welfare of a Minor

The State charged Dossey with committing first-degree endangering the welfare of a

minor; however, the jury convicted him of second-degree endangering the welfare of a minor.

A person commits the offense of endangering the welfare of a minor in the second degree if

he knowingly engages in conduct creating a substantial risk of serious harm to the physical

or mental welfare of another person known by the person to be a minor. Ark. Code Ann. §

5-27-206(a)(1) (Repl. 2013).

Referring specifically to Ark. Code Ann. § 5-27-205(a)(1)—first-degree endangering the

welfare of a minor—Dossey argues that there was no substantial evidence that he purposely

created a risk of serious physical injury to Braiden because he was not the initial aggressor in

9 the road-rage incident; he did not have a gun; he did not point a gun at Braiden; he did not

fire a gun in Braiden’s general direction; and he did not cause anyone else to point or fire a

gun at Braiden.

In moving for a directed verdict, defense counsel argued that there was no substantial

risk of death or serious physical injury to Braiden because there was no allegation that Dossey

fired the gun inside the car or even in Braiden’s general direction. As for the confrontation

on the exit ramp, defense counsel said that there was no indication that Dossey had

instructed Braiden to exit the car to confront Windstein with him—it was Braiden’s voluntary

action. Defense counsel renewed his motion, again arguing that the State had failed to show

that Dossey created a substantial risk of death or serious physical injury to Braiden.

Dossey argues—both below and on appeal—the elements of an offense of which he was

not convicted. Whereas first-degree endangering deals with death and serious physical injury,

second-degree endangering refers to “serious harm to the [minor’s] physical or mental

welfare,” which means physical or mental injury that causes protracted disfigurement;

protracted impairment of physical or mental health; or loss or protracted impairment of the

function of any bodily member or organ. Ark. Code Ann. § 5-27-206(a)(2). Dossey failed to

specifically challenge the sufficiency of the evidence pertaining to the elements of second-

degree endangering the welfare of a minor.2 See Brown, supra. Dossey has addressed on appeal

only first-degree endangering the welfare of a minor, as he did below.

2 The trial court stated that second-degree endangering the welfare of a minor is a lesser-included offense of first-degree endangering. We express no opinion on the accuracy

10 With that said, Dossey was convicted of knowingly engaging in conduct that created

a substantial risk of serious harm to the physical or mental welfare of a minor.3 One’s intent,

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. Benton v.

State, 2020 Ark. App. 223, 599 S.W.3d 353. The fact-finder is allowed to draw on common

knowledge and experience to infer intent 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.

Dossey asserts many “facts” that the jury obviously did not believe given that the jury

found that he discharged a firearm at Windstein, striking his truck. While Dossey did not

point a gun at Braiden or instruct him to accompany him to approach Windstein, the jury

could reasonably conclude that Dossey—by shooting at Windstein in traffic and then

confronting Windstein, who was following them—knowingly engaged in conduct that

created a substantial risk of serious harm to Braiden’s physical or mental welfare. Even if

of that statement. See Burnette v. State, 354 Ark. 584, 590 n.2, 127 S.W.3d 479, 482 n.2 (2003) (refusing to reach the issue of whether second-degree endangering is indeed a lesser- included offense of first-degree endangering). We note, however, that the jury here was instructed on both offenses and that Dossey raised no objections to the instructions. 3 A person acts knowingly with respect to the person’s conduct or the attendant circumstances when he is aware that his conduct is of that nature or that the attendant circumstances exist; or a result of the person’s conduct when he is aware that it is practically certain that his conduct will cause the result. Ark. Code Ann. § 5-2-202(2)(A) & (B) (Repl. 2013).

11 Dossey’s argument had been preserved, we would hold that substantial evidence supported

Dossey’s conviction of this misdemeanor offense.

Affirmed; remanded for correction of sentencing order.

HARRISON and BARRETT, JJ., agree.

Mitch Rouse, for appellant.

Tim Griffin, Att’y Gen., by: A. Evangeline Bacon, Ass’t Att’y Gen., for appellee.