Rollins v. State

2009 Ark. 484, 347 S.W.3d 20, 2009 Ark. LEXIS 645

• Court: Supreme Court of Arkansas
• Decided: October 8, 2009
• Docket: CR 09-265
• Status: Published

Opinions

ELANA CUNNINGHAM WILLS, Justice.

liAppellant Vance Rollins was charged with two counts of manslaughter after he caused a head-on car collision that killed Lawrence and Nina Humphrey. He was tried by a Perry County jury on October 24, 2007, and was sentenced to two consecutive four-year terms of imprisonment. Rollins appealed to the court of appeals, contending that there was insufficient evidence to support his manslaughter convictions. The court of appeals agreed, affirming his convictions but modifying the judgment to reflect the lesser-included offense of negligent homicide. Rollins v. State, 2009 ArkApp. 110, 302 S.W.3d 617. The State petitioned for review from the court of appeals’ opinion, arguing that it was decided contrary to this court’s prior decisions and involved an issue of substantial public interest that requires clarification.

When we grant review of a decision by the court of appeals, we review the case as though the appeal was originally filed in this court. See Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008); Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007).

[In his first argument for reversal, Rollins argues that the trial court erred in denying his motion for directed verdict because the evidence was insufficient to sustain the manslaughter conviction. On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. See Johnson v. State, 375 Ark. 462, 291 S.W.3d 581 (2009). We will affirm the circuit court’s denial of a motion for directed verdict if there is substantial evidence, either direct or circumstantial, to support the jury’s verdict. Id. This court has repeatedly defined substantial evidence as evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Hoyle v. State, 371 Ark. 495, 501, 268 S.W.3d 313, 318 (2007). In reviewing the sufficiency of the evidence, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the State, without weighing it against conflicting evidence that may be favorable to the appellant, and affirm the verdict if it is supported by substantial evidence. Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994).

As noted above, Rollins contends that the evidence introduced at trial was insufficient to support his manslaughter conviction. More specifically, he contends that the evidence was insufficient to demonstrate that he acted recklessly. Rollins was charged under Arkansas Code Annotated section 5-10-104(a)(3) (Repl.2006), which states that a person commits manslaughter if the “person recklessly causes the death of another person.” “Recklessly” is defined in Arkansas Code Annotated section 5-2-202(3) (Repl.2006) as follows:

(A) A person acts recklessly with respect to attendant circumstances or a result of his or her conduct when the person consciously disregards a ^substantial and unjustifiable risk that the attendant circumstances exist or the result will occur.

(B) The risk must be of a nature and degree that disregard of the risk constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation!.]

At trial, the State introduced the testimony of O.J. and Barbara Williams. Mr. Williams testified that, on the day of the accident, he was driving southbound on Highway 7 towards Hot Springs when a vehicle came up behind him. Mr. Williams decided to let the vehicle pass him, so he slowed down and pulled over to the edge of his lane. The vehicle did not pass, and Mr. Williams resumed his speed. The vehicle, however, “just kept coming up behind” Mr. Williams, which made him nervous. Mr. Williams attempted several times over the course of about fifteen miles to slow down to let the other vehicle pass, but it never did. Mr. Williams said he never observed the vehicle cross the center line, but the tailgating nonetheless made him nervous.

Finally, Mr. Williams pulled into a CCC camp and stopped for a while. After a few minutes, during which several other vehicles went down the road, he returned to the highway and resumed his journey. About five miles down the road, he saw that the vehicle that had been following him had been in a wreck. That vehicle was completely on the opposite side of the center lane, he said.

Barbara Williams described the vehicle behind them as “driving erratically.” She said that the vehicle would repeatedly “come way up on our bumper, and then would back off.” Mrs. Williams said that the other vehicle was “not fast,” but would pull up close behind 14them and then back away without passing. She also described how they eventually pulled off the road at a CCC camp for five minutes or so and then, when they got back on the highway, they came upon the wreck. Mrs. Williams testified that the vehicle that had been following them was “obviously in the wrong lane.”

The State’s next witness was Linda Brewer, a nurse who witnessed the accident. Brewer said that she and her daughter had spent the day in Hot Springs and were driving north on Highway 7 at around 3:00 p.m. behind a tan car. As they started down a little grade, she saw a red sport-utility vehicle driving in their lane. At first, she thought it would swerve back, but then she saw the taillights of the tan car just before the SUV hit it. She saw a flash of flame, pulled up alongside the tan car and then, concerned about the fire, quickly accelerated past the wreck. She then pulled over and told her daughter to call 911.

Brewer ran first to the red SUV and tried to open the door but could not. She saw the driver moving around and told him to stay still. She then went to the tan ear and tried to help its passengers, the Hum-phreys; however, they were badly injured, and both expired at the scene of the wreck. As she attempted to assist the Hum-phreys, she saw the driver of the red SUV, Rollins, trying to get out of his vehicle, so she ran back to help him. She told him that he had been in an accident and needed to sit still, but he got out and kept trying to open the back door of the SUV. Brewer heard him say “Molly,” and she realized that there was someone else in the vehicle. After they managed to get the door open, Brewer saw a woman on the floorboards of the back seat. Brewer and her daughter helped the woman |sout of the vehicle. Rollins then began feeling around on the floorboard, and Brewer thought that perhaps he needed oxygen.

By that time, emergency vehicles had arrived, and Brewer went to speak with the emergency personnel. As she was doing so, she saw Rollins at the side of the road and thought he looked like he was going to pass out. She went to him and told him he needed to sit down; she also asked if he was hurt. He said that he was not, and as she looked at his hands, she saw him drop some green pills. Brewer said that, as a nurse, she thought they might be heart pills, so she asked whether he had any conditions that required medication. He shook his head, and she eventually got him to sit down. A moment or two later, however, he began struggling to get up, and Brewer again tried to get him to sit still. At that point, the woman who had been in the backseat of the SUV began hollering, and Rollins rolled over to try to get up. When he did, Brewer saw green pills underneath him, and she picked up three or four of them and later gave them to police.

Faith Miller, Brewer’s daughter, also witnessed the collision. As they came around a curve on the highway, she saw Rollins’s red SUV “all the way” in their lane and also observed Rollins looking over his right shoulder. She said that Rollins was going fast around a curve and “never appeared to slow down, he didn’t dodge, he didn’t swerve.” After the accident, Miller said that her mother went to help Rollins, who “was shaky and wobbly” and appeared to be “in shock and stuff.”

Trooper Greg McNeese of the Arkansas State Police, who responded to the scene of the accident at 5:45 p.m., testified that an officer from the Perry County Sheriffs Office 1 (¡handed him the pills that Brewer had picked up; he placed them in an envelope and secured them in his vehicle. McNeese also testified that he found a duffel bag in the front passenger floorboard of the SUV that contained clothes, toiletries, and a black cigarette case with three pipes in it. Christa Hall, a forensic chemist at the Arkansas State Crime Laboratory, testified that the pipes tested positive for cocaine residue. Hall also testified that the green pills were hydrocodone and acetaminophen.

Shawn Wright, a nurse at St. Joseph’s Hospital in Hot Springs, testified that he took a blood sample from Rollins on the day of the wreck; the blood-alcohol-report form indicates that the sample was collected at 7:15 p.m. Becky Carlisle, a forensic toxicologist at the Crime Lab, testified that she tested the blood samples that were taken from Rollins after the accident. The samples tested positive for cocaine and sertraline, or Zoloft, but the level of both drugs was less than .05 micrograms per milliliter, which indicated that the person had ingested the drugs, but it was a fairly low amount.¹ She said that she did not know how or when the drugs were ingested, and she could not ascertain how long either drug had been in the blood prior to the samples’ being taken. When asked whether there was a period of time at which blood tests would no longer detect the ingestion of cocaine, Carlisle said it would be “over eight hours.” Her testing revealed no other controlled substances in Rollins’s blood sample, including hydrocodone. On cross-examination, Car-lisle said that she could not 17give an opinion as to whether the person was impaired by the level of “whatever substances were to the degree that would interfere with normal functioning.”

At the conclusion of the State’s case, Rollins moved for a directed verdict on the manslaughter charges, arguing that the State had failed to prove the element of recklessness. The circuit court denied his motion, but it did agree to instruct the jury on the lesser-included charge of negligent homicide.² As noted above, the jury convicted Rollins on two counts of manslaughter and sentenced him to two consecutive four-year sentences.

Viewing all this evidence in the light most favorable to the State, and considering only the evidence that supports the verdict, we conclude that the circuit court did not err in denying Rollins’s motion for directed verdict. At issue in this appeal is whether the State proved that Rollins acted recklessly. As set out above, our statute declares that one acts recklessly “with respect to attendant circumstances or a result of his conduct when he consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.” Ark.Code Ann. § 5-2-202(8). The original commentary to the manslaughter statute, section 5-10-105, notes that the test for differentiating between reckless and negligent conduct is “whether the actor perceived the substantial risk of death or serious | ^physical injury and disregarded it (reckless conduct) or failed to perceive the risk in the first place (negligent conduct).” Original Commentary to Ark.Code Ann. § 5-10-105 (Repl.1995).

In Hoyle v. State, 371 Ark. 495, 268 S.W.3d 313 (2008), this court considered a challenge to the sufficiency of the evidence in a manslaughter case with facts that are somewhat similar to the instant case. In Hoyle, the defendant was driving a tractor-trailer with a loaded chip hauler attached to it. Hoyle crossed the center line and struck an oncoming vehicle, killing two of its three occupants. The officers who responded to the accident scene suspected that Hoyle had been driving under the influence of drugs, and they took him to a hospital to obtain blood and urine samples. Those samples later revealed the presence of methamphetamine in Hoyle’s system. Hoyle was subsequently charged and convicted of two counts of manslaughter. Hoyle, 371 Ark. at 497, 268 S.W.3d at 315.

On appeal, Hoyle argued that there was insufficient proof that he had acted recklessly. Id. at 503, 268 S.W.3d at 319. This court phrased the relevant inquiry as “whether the evidence ... demonstrated that Hoyle consciously disregarded a substantial and unjustifiable risk in driving while under the influence of methamphetamine.” Id. The proof introduced at trial showed that Hoyle’s vehicle, which was traveling southbound, crossed the center line and struck the vehicle driven by the victims at a forty-five degree angle. The driver of the truck who had been behind Hoyle said he never saw Hoyle apply his brakes prior to the accident and had earlier witnessed Hoyle almost run a tanker truck off the road. Id. at 498,1,,268 S.W.3d at 315. Another eyewitness said he never saw anything that would have caused Hoyle’s vehicle to swerve into oncoming traffic. Id. at 500, 268 S.W.3d at 317.

In Hoyle, the State also offered the testimony of a board certified pathologist, Dr. Pappas, who stated that the presence of methamphetamine in the blood could cause agitation, irrational behavior, signs of psychosis, fatigue, and signs of paranoia; Dr. Pappas also opined that a person driving a vehicle under the influence of methamphetamine might drift in and out of a lane, exhibit risky behavior, or drive off the road. Id. at 499, 268 S.W.3d at 316. Another witness testified that Hoyle had a concentration of .221 micrograms of methamphetamine per milliliter in his blood, and Dr. Pappas stated that this concentration of the drug demonstrated that, at the time of the accident, Hoyle “was either coming up, going up, or he was certainly under the effect” of methamphetamine. Id. at 501, 268 S.W.3d at 317. This level of the drug in Hoyle’s blood “without a doubt had a negative effect on [Hoyle’s] driving.” Id.

Given this proof, this court determined that there was substantial evidence that Hoyle had recklessly caused the deaths of the victims, stating that it did not agree that the jury would have had to resort to speculation and conjecture to conclude that the drugs in Hoyle’s system “so altered his motor skills that it was the cause of the wreck.” Id. at 504, 268 S.W.3d at 319. The court concluded that Hoyle “consciously disregarded a substantial and unjustifiable risk that death might occur if he operated a commercial vehicle after ingesting methamphetamine, and the disregard thereof constituted a gross deviation from the standard of care that a reasonable person would observe in Hoyle’s situation.” Id.

ImSimilarly, in Smith v. State, 3 ArkApp. 224, 623 S.W.2d 862 (1981), the court of appeals upheld a manslaughter conviction where the proof showed that the defendant acted recklessly. In Smith, as in the instant case, the appellant argued that she was, at most, guilty of negligent homicide. The court of appeals rejected her argument, though, pointing out that Smith had been drinking and was speeding when she hit a curve and lost control of her car. She hit a pedestrian and then drove into a ditch, whereupon she became hysterical because she had wrecked her mother’s car. Afterward, she refused to return to the scene of the accident. Smith, 3 ArkApp. at 227, 623 S.W.2d at 863. The court of appeals held as follows:

We believe the evidence is without doubt substantial that appellant’s conduct was reckless and exhibited a conscious disregard of a perceived risk. In sum, appellant was drinking to excess during midday and was driving a vehicle at high speeds on public streets and highways in a metropolitan area. This evidence alone clearly supports that appellant’s actions exhibited a conscious disregard of people’s lives and property. Appellant’s actions subsequent to her striking the victim served to substantiate a knowledgeable but callous lack of concern for life when she rejected her passenger’s request to return to the scene to determine whether she had run anyone down. Appellant’s sole expressed concern after leaving the scene was to get her car fixed. Based on these facts, we see no reason to distinguish this case from the case of Kirken-dall v. State, 265 Ark. 853, 581 S.W.2d 341 (1979), wherein the court affirmed a conviction of manslaughter on similar facts.

Id. at 228, 623 S.W.2d at 864.

In the present case, as in Hoyle and Smith, we conclude that the evidence supported the trial court’s denial of Rollins’s motion for directed verdict. Rollins argues that there was no testimony that the drugs in his blood would affect his ability to drive a vehicle, and thus there was no evidence that he had any knowledge of any risk. While no evidence was presented of Rollins’s level of impairment or intoxication from ingesting cocaine, we note |n that such evidence is not necessary to sustain a conviction for reckless manslaughter.³ Rather, the State needed only to prove that Rollins recklessly caused the death of another person. That is, the State was required to prove that Rollins consciously disregarded a substantial and unjustifiable risk of causing death, and that such risk was of a nature and degree that disregard of it constituted a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. See Ark.Code Ann. § 5-2-202(3)(A)-(B).

Although Rollins argues that there was no proof that he consciously disregarded a risk, this court has repeatedly noted that intent is rarely provable by direct evidence. See Watson v. State, 358 Ark. 212, 188 S.W.3d 921 (2004); Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002). Since intent ordinarily cannot be proven by direct evidence, jurors are allowed to draw upon their common knowledge and experience to infer it from the circumstances. Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990). Here, there was evidence that Rollins had been driving erratically prior to the crash that occurred around 3:00 p.m., tailgating the Williamses for fifteen miles, driving fast on a curving highway, and crossing over the center line while looking over his shoulder. There was further testimony that he did not attempt to stop or swerve as he drove headfirst into the Humphreys’ vehicle. Moreover,_[_i2proof was presented from which the jury could infer that, at some point within the eight hours preceding the drawing of his blood at 7:15 p.m., Rollins had ingested cocaine. Taking all of these facts and circumstances together and viewing them in the light most favorable to the State, as we are required to do under our standard of review, we cannot agree that the circuit court erred in denying Rollins’s motion for directed verdict.⁴

Rollins raises a second point on appeal, contending that the circuit court abused its discretion in denying his motion in limine in which he sought to exclude evidence of the hydrocodone pills and “smoking devices” found in Rollins’s car and evidence of his use of |1scocaine. At a pretrial hearing, Rollins argued that the evidence was irrelevant because he was not charged with being under the influence of anything; the State countered that the evidence was relevant because it had charged Rollins with acting recklessly and was not precluded from showing that Rollins may have been affected by an illegal substance. The court denied the motion in limine, and the State introduced the pills and the smoking devices.

On appeal, Rollins argues that the evidence of his use of controlled substances was irrelevant because it did not tend to make any fact at issue more or less probable. He contends that evidence that he had hydrocodone pills and pipes in his possession did not shed any light on whether taking cocaine or prescription medication would affect a person’s ability to operate a vehicle, whether those substances actually had any effect on his ability to operate a vehicle or would affect anyone in a similar situation, or whether he realized that there was any potential risk in possessing or ingesting these substances and then consciously disregarded it. Rather, he urges that this evidence was simply intended to portray him in a bad light in the jury’s eyes.

Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Ark. R. Evid. 401. Evi-dentiary matters regarding the admissibility of evidence are left to the sound discretion of the trial court. Williams v. State, 374 Ark. 282, 287 S.W.3d 559 (2008); Grant v. State, 357 Ark. 91, 161 S.W.3d 785 (2004)._JJáA trial judge’s ruling in this regard will not be reversed absent an abuse of discretion. Williams, supra. This high threshold does not simply require error in the trial court’s decision but rather that the trial court act improvidently, thoughtlessly, or without due consideration. Id.

Here, the evidence of the pipes with cocaine residue was relevant, given the State’s theory of the case. They were relevant in the sense that they made it more probable than not that Rollins had ingested cocaine at some time prior to the accident.⁵ Therefore, we cannot say that the trial court abused its discretion in admitting them.

Affirmed; court of appeals reversed.

HANNAH, C.J., dissents.

1 . Carlisle testified that the blood tests she used had a lower limit at which the tests were able to detect substances in the blood; .05 was "the lower limit, [and] that’s why it’s reported less than .05.”

2 . The court instructed the jury that, to find Rollins guilty of negligent homicide, the State had to prove that he negligently caused the deaths of the Humphreys. This instruction stems from Arkansas Code Annotated section 5-10-105(b)(1) (Repl.2006), which makes negligent homicide a Class A misdemeanor. It differs from Arkansas Code Annotated section 5-10-105(a)(l)(A) (Repl.2006), which provides that a person commits negligent homicide if he negligently causes the death of another as a result of operating a vehicle while intoxicated. Negligent homicide under section 5-10-105(a)(1) is a Class C felony.

3 . Compare the offense of felony negligent homicide, which requires proof that the defendant caused the death of another person as a result of operating a vehicle while intoxicated. Ark.Code Ann. § 5-10-105(a)(l)(A). See also Robinson v. State, 98 ArkApp. 237, 254 S.W.3d 750 (2007) (defendant was convicted of felony negligent homicide, but the court of appeals reduced the conviction to negligent homicide, holding that evidence of merely ingesting a controlled substance, without further proof of actual intoxication or impairment, was not sufficient to prove the necessary element of intoxication).

4 . The dissent appears to conclude that the only evidence presented to the jury was that Rollins looked over his shoulder, and the dissent questions whether the State introduced proof that Rollins consciously made the decision to do so. This assertion ignores our longstanding principles that intent is rarely provable by direct evidence and that jurors may infer intent from the circumstances. Here, the attendant circumstances — which go largely unmentioned by the dissent — showed that Rollins had been driving erratically, was going fast, failed to slow down or swerve as he came upon the Humphreys' vehicle, and had cocaine in his bloodstream that the jury could have inferred had been ingested within the hours prior to the crash. As noted above, we are unwilling to conclude that a jury could not draw an inference of reckless conduct from these circumstances.

Moreover, the cases on which the dissent relies are not persuasive. For example, the only issue presented in Prunty v. State, 271 Ark. 77, 607 S.W.2d 374 (1980), was the admissibility of photographs. In Booth v. State, 26 Ark.App. 115, 761 S.W.2d 607 (1989), the primary question was whether circumstantial evidence proved that Booth was driving the vehicle that killed two people in a hit-and-run accident. The court in Clark v. State, 15 Ark. App. 393, 695 S.W.2d 396 (1985), merely stated in a conclusory fashion at the end of the opinion that the evidence proved that the defendant had acted recklessly. Finally, in McGill v. State, 60 Ark.App. 246, 962 S.W.2d 382 (1998), evidence of "fishtailing” a car constituted evidence of reckless behavior. While the dissent claims that McGill’s decision to fishtail was a conscious decision that caused an accident, it fails to explain, in the present case, how the act of looking away from the road, when coupled with the other attendant circumstances, could not also have been evidence from which the jury could conclude that Rollins acted recklessly.

5 . Rollins also argues that the introduction of the hydrocodone pills was irrelevant because, if he “did not ingest the hydrocodone, the fact of his possessing it had no probative value unless he knew possessing it would and in fact did affect his ability to drive.” However, Rollins appears to have failed to advance this particular contention in his arguments before the trial court; therefore, we do not reach it on appeal. See Davis v. State, 368 Ark. 401, 246 S.W.3d 862 (2007) (where a particular argument was not raised below, it was not preserved for appellate review).