Irvin v. State

771 S.W.2d 26, 28 Ark. App. 6, 1989 Ark. App. LEXIS 253
CourtCourt of Appeals of Arkansas
DecidedMay 17, 1989
DocketCA CR 88-252
StatusPublished
Cited by11 cases

This text of 771 S.W.2d 26 (Irvin v. State) 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.

Bluebook
Irvin v. State, 771 S.W.2d 26, 28 Ark. App. 6, 1989 Ark. App. LEXIS 253 (Ark. Ct. App. 1989).

Opinion

Donald L. Corbin, Chief Judge.

This appeal comes to us from Desha County Circuit Court. Appellant, Kenneth Ray Irvin, appeals his conviction of murder in the second degree. We find no error and affirm.

A felony information was filed charging appellant with murder in the first degree, a violation of Arkansas Code Annotated Section 5-10-102 (Supp. 1987). A jury trial was held in which appellant was found guilty on the reduced charge of murder in the second degree in violation of Arkansas Code Annotated Section 5-10-103 (1987) and was sentenced to twenty years in the Arkansas Department of Correction and was to pay restitution in the amount of $7,000.00. From the conviction comes this appeal.

Appellant asserts eight points for reversal; however, we will address his challenge to the sufficiency of the evidence prior to considering any alleged trial error as required by Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).

I.

THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE VERDICT.

The court must consider all evidence, including any which may have been inadmissible, in the light most favorable to the appellee and affirm if there is substantial evidence to support the verdict. Id. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable and material certainty, compel a conclusion one way or the other without resorting to speculation or conjecture. Phillips v. State, 17 Ark. App. 86, 703 S.W.2d 471 (1986).

Viewed in the light most favorable to appellee, the evidence reflects that on October 10, 1987, an incident occurred which culminated in the death of Benny Rana. On that evening, appellant, the victim, and a woman were drinking at a club. The three of them left the club at approximately 3:00 a.m. and went to appellant’s mobile home to “party.” While there, the victim became agitated and broke out the windshield of appellant’s truck. He and the appellant began fighting and the woman ran to the back of the mobile home. Appellant went inside the mobile home, got his rifle, came out the front door and admittedly fired a shot in the air. Appellant testified that his purpose in getting his gun was to scare the victim. He also testified that he was holding the gun with one hand and fighting the victim with the other at which time the gun accidently discharged several times. The victim was struck in the chest by one of the bullets and fatally injured.

Other evidence presented at trial revealed that before he left the bar on the evening in question, appellant told another person that he wanted to “whip” the victim. A neighbor testified that he heard three shots fired in rapid succession with the last shot sounding distinctly different from the first two. An investigation of the scene indicated that three spent shell casings were found in close proximity to the victim’s body. One casing was found beneath the victim’s hand and two were found immediately south of the victim’s hand. An officer at the scene test fired appellant’s gun three times to determine how far the weapon would eject the casings. The casings ejected distances ranging from 5’6” to 7’3'/2”. The shirt worn by the victim was tested in the trace evidence laboratory for gunpowder residue; however, none was found. The criminologist who examined the shirt testified that he reached this negative conclusion after performing microscopic examination, infrared photography, sodium rhodizonate, modified griess, and x-ray fluorescence testing procedures. To determine the proximity of the weapon to the victim, the criminologist conducted test firing procedures which indicated that the gun would have to be fired five or six feet from the target to leave no gunpowder residue. A forensic expert also testified that the bullet which struck the victim was not fired from contact range but based upon his investigation could have been fired from as close as two feet.

Appellant argues that the facts of this case are insufficient to support his conviction. We disagree. Guilt need not always be proven by direct evidence. Circumstantial evidence can present a question to be resolved by the trier of fact and be the basis to support conviction. Yandell v. State, 262 Ark. 195, 555 S.W.2d 561 (1977). We have often said that the fact that evidence is circumstantial does not render it insubstantial. See, e.g., Ashley v. State, 22 Ark. App. 73, 732 S.W.2d 872 (1987). The jury is allowed to draw any reasonable inference from circumstantial evidence to the same extent that it can from direct evidence. Payne v. State, 21 Ark. App. 243, 731 S.W.2d 235 (1987). Furthermore, the jury was not required to believe appellant’s version of the events surrounding the shooting because he was the person most interested in the outcome. Core v. State, 265 Ark. 409, 578 S.W.2d 581 (1979).

Viewing the above and all evidence of record in the light most favorable to appellee, we find substantial evidence from which the jury could have found appellant guilty of second degree murder without resorting to surmise or conjecture. Therefore, we affirm as to appellant’s first point for reversal.

II.

THE TRIAL COURT ERRED IN DENYING A CHALLENGE FOR CAUSE OF TWO PROSPECTIVE JURORS.

Appellant sought to dismiss for cause prospective jurors Marvin Pennington and Jewell Freeman. The court denied appellant’s motions and appellant contends that the denials constitute reversible error. Appellant’s argument must fail because in order to preserve this point for appeal, appellant must show that one of the jurors actually seated should have been excused for cause. In order to make that showing, appellant must demonstrate that after exhausting all of his peremptory challenges, he was forced to accept a juror against his wishes. We will not consider arguments concerning jurors either accepted by appellant while he had peremptory challenges remaining or those not accepted by appellant but excused by peremptory challenges. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). Here, appellant’s abstract of voir dire does not reveal if his peremptory challenges were exhausted. In fact, appellant only abstracted a very small portion of the jury voir dire and on this record, we are unable to determine how many, if any, of his challenges (peremptory or for cause) were utilized. On appeal, the record is confined to that which is abstracted, Sutherland v. State, 292 Ark. 103, 728 S.W.2d 496 (1987). Furthermore, when an error is alleged, prejudice must be shown, since we do not reverse for harmless error. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).

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771 S.W.2d 26, 28 Ark. App. 6, 1989 Ark. App. LEXIS 253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/irvin-v-state-arkctapp-1989.