Fulton v. State

2016 Ark. App. 28

• Court: Court of Appeals of Arkansas
• Decided: January 20, 2016
• Docket: CR-15-492
• Status: Published

Opinion

Cite as 2016 Ark. App. 28

ARKANSAS COURT OF APPEALS DIVISION IV No. CR-15-492

Opinion Delivered January 20, 2016 DEONTAE FULTON APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION V. [NO. CR-2013-2648]

HONORABLE HERBERT WRIGHT, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED

M. MICHAEL KINARD, Judge

Deontae Fulton was charged with first-degree murder in connection with the June

2013 death of Juan Reyes. After a bench trial, he was convicted of the charge and was

sentenced to thirty-five years in the Arkansas Department of Correction. On appeal, he

contends that insufficient evidence was presented to support the finding of guilt. We affirm.

As is pertinent here, a person commits first-degree murder if, with the purpose of

causing the death of another person, he causes the death of another person. Ark. Code Ann.

§ 5-10-102(a)(2) (Repl. 2013). When the sufficiency of the evidence is challenged on appeal

from a criminal conviction, we view the evidence and all reasonable inferences deducible

therefrom in the light most favorable to the State, considering only that proof that tends to

support the finding of guilt. Robinson v. State, 2010 Ark. App. 772. We will affirm if

substantial evidence exists to support the conviction. Id. Substantial evidence is that which Cite as 2016 Ark. App. 28

is of sufficient force and character that it will, with reasonable certainty, compel a conclusion

one way or the other without requiring resort to speculation or conjecture. Id.

A brief recitation of the evidence will suffice. According to witness Atarius Bishop,

appellant was a passenger in a car driven by Bishop on the day in question. After riding

around and smoking marijuana, the two stopped at the home of Morisha McCoy. Ms.

McCoy’s boyfriend, the victim Juan Reyes, was in the front yard drinking a beer. The three

men had known one another for many years, and they engaged in a conversation. Both

Bishop and appellant had previously had a sexual relationship with Ms. McCoy. Appellant

was jealous, and he began crudely describing his sexual relationship with Ms. McCoy. He

asked Reyes if he wanted to fight, but Reyes declined. Eventually, appellant got out of the

car and knocked the beer from Reyes’s hand. Bishop then got out of the car and started

toward the other side. At that point, he heard a gunshot. Reyes fell, and appellant was

holding a pistol. Appellant and Bishop got back in the vehicle and left. Bishop denied any

involvement in the crime and denied knowing that appellant intended to kill Reyes.

According to Dr. Adam Craig of the Arkansas State Crime Laboratory, Reyes was

shot in the head at a slightly downward angle from two to three feet away. The wound

severed the spinal cord from the brain and killed Reyes instantly.

Appellant first contends that the evidence is insufficient to support his conviction

because Bishop “is someone entirely unworthy of belief.” He argues that it is equally likely

that Bishop was the real killer. Appellant specifically points to the testimony of another

witness who stated that she had overheard Bishop admit to having shot and killed Reyes.

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Appellant’s motion to dismiss was based on the credibility of the witnesses. However,

it is the sole province of the factfinder to determine credibility and to decide the weight and

value of witness testimony. Robinson v. State, supra. This court will not pass upon the

credibility of a witness and has no right to disregard testimony once the factfinder has given

it credence, unless the testimony is inherently improbable, physically impossible, or so clearly

unbelievable that reasonable minds could not differ thereon. Id. From our review of the

record, we conclude that sufficient evidence was presented that appellant shot and killed the

victim.

Appellant next contends that his conviction must be reversed because Bishop was an

accomplice whose uncorroborated testimony was insufficient to support the finding of guilt.

See Ark. Code Ann. § 16-93-111(e)(1) (Supp. 2015). We conclude that this issue was not

preserved for appeal, and we do not address it on the merits.

Rule 33.1(c) of the Arkansas Rules of Criminal Procedure provides that the failure

of a defendant to challenge the sufficiency of the evidence at the times and in the manner

prescribed in the rule will constitute a waiver of any question pertaining to the sufficiency

of the evidence to support the judgment. A motion to dismiss must specify the respect in

which the evidence is deficient, id., and one cannot change the grounds for his motion on

appeal. Armstrong v. State, 2011 Ark. App. 530. The rule applies to an accomplice-

corroboration argument. Id.; Bryant v. State, 2011 Ark. App. 348, 384 S.W.3d 46. Here,

appellant never argued to the trial court that Bishop was an accomplice whose testimony had

to be corroborated; his motion to dismiss was limited to an argument about witness

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credibility and reasonable doubt. Therefore, appellant’s contention was waived for purposes

of appeal.

Affirmed.

VIRDEN and GLOVER , JJ., agree.

Sherwood & Merritt, PLLC, by: Sara F. Merritt, for apellant.

Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., and Rafael Gallaher, Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission to the Bar of the Supreme Court under the Supervision of Darnisa Evans Johnson, Deputy Att’y Gen., for appellee.