Sizemore v. State

2015 Ark. App. 295, 462 S.W.3d 364, 2015 Ark. App. LEXIS 400
CourtCourt of Appeals of Arkansas
DecidedMay 6, 2015
DocketCR-14-1052
StatusPublished
Cited by9 cases

This text of 2015 Ark. App. 295 (Sizemore 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
Sizemore v. State, 2015 Ark. App. 295, 462 S.W.3d 364, 2015 Ark. App. LEXIS 400 (Ark. Ct. App. 2015).

Opinions

RITA W. GRUBER, Judge

11Appellant Nathan Neal Sizemore was convicted by a jury of negligent homicide and sentenced to eight months in the county jail and a fine of $1,000. He appeals, claiming that the evidence was insufficient to support his conviction. We affirm his conviction.

On August 26, 2012, at approximately 1:50 p.m., appellant, who was eighteen at the time and did not have a driver’s license, was driving a friend’s car east on Highway 16 in Fayetteville. The victim, Angela Sue Rife, was driving her Jeep Liberty west on Highway 16 with her fian-cé, Aaron MacAbee, and her son, who was in a car seat in the back. Mr. MacAbee testified that they were traveling at approximately 55 to 56 miles per hour when he saw appellant’s car drift over the double-yellow line. Mr. MacAbee testified that appellant came toward them for three to five seconds.' Although Ms. Rife applied her brakes and steered across the white line away from appellant’s car, appellant’s car collided head-on with Ms. Rife’s Jeep, and Ms. Rife was killed. Mr. MacAbee testified that it was not raining and he did 12not observe any obstacles on the road before the accident.

Ricky Loge was driving the vehicle in - front of appellant and saw him veer across the road and collide with Ms. Rife. He testified that he was driving between fifty and fifty-five miles per hour and that appellant was driving the same speed behind him. Mr. Loge testified that appellant did not signal, did not attempt to pass him, and did not break before drifting into the oncoming lane of traffic. He said the road surface appeared to be normal with no potholes or broken pavement. He also testified that it was not raining and he did not walk through any water when he went to the accident scene after the wreck.

Kyle Reynolds, a retired fireman and EMT, was driving the same direction and route as appellant and stopped at the scene when he came upon it several minutes after the accident. He testified that it was not raining and he did not recall any puddles when he walked to the scene.

Officer Elliott Luebker of the Fayette-ville Police Department testified that he arrived on the scene several minutes after the accident. His patrol car is equipped with a mobile video-recording device, which was operating on the day of the accident. He testified that there were no puddles of water or damp roads at the scene of the accident or in the immediate vicinity and that it was not raining when he arrived on the scene. The video revealed no puddles or obstacles in the roadway near the crash site.

Officer David Nguyen was employed by the Fayetteville- Police Department as a patrol officer and an accident reconstruc-tionist at the time of the accident. He testified that the only skid marks at the scene were made by Ms. Rife’s Jeep. He explained that skid marks occur |swhen the wheels lock up, creating friction that leaves marks on the highway. He explained that yaw marks indicate that the tires lost grip. Officer Nguyen testified that appellant’s car did not make any skid marks or yaw marks. He also testified that his inspection of the scene did not reveal any potholes, cracks, or dips in the road.

Officer Brian Lindabury, a detective with the Fayetteville Police Department, testified that he was assigned to investigate the accident. He said that he interviewed appellant on January 7, 2013. Appellant told Officer Lindabury that the accident was caused when he hit a puddle that caused his car to hydroplane. Appellant testified at trial that he remembered hitting water and then waking up in the hospital.

Appellant’s sole point on appeal is that the circuit court erred in denying his motion for directed verdict because the evidence was insufficient to support the jury’s finding that he was guilty of negligent homicide. The test for determining sufficiency of the evidence is whether there is substantial evidence, direct or circumstantial, to support the verdict. Jackson v. State, 2011 Ark. App. 528, at 5, 385 S.W.3d 394, 397. On appeal, we consider only the evidence that supports the verdict, viewing the evidence in the light most favorable to the State. LeFever v. State, 91 Ark. App. 86, 89, 208 S.W.3d 812, 815 (2005). Evidence is substantial if it is forceful enough to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Harmon v. State, 340 Ark. 18, 22, 8 S.W.3d 472, 474 (2000). We do not weigh the evidence presented at trial, as that is a matter for the fact-finder. Id. at 22, 8 S.W.3d at 474-75. Witness credibility is an issue for the fact-finder, which is free to believe all or a portion of any witness’s testimony and whose duty it is to resolve questions |4of conflicting testimony and inconsistent evidence. LeFever, 91 Ark. App. at 89, 208 S.W.3d at 815.

Appellant was convicted of negligent homicide. Arkansas Code Annotated section 5 — 10—105(b)(1) (Supp. 2011) provides that “[a] person commits negligent homicide if he or she negligently causes the death of another person.” The criminal code defines “negligently” as follows:

(A) A person acts negligently with respect to attendant circumstances or a result of his or her conduct when the person should be aware of a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur.
(B) The risk must be of such a nature and degree that the actor’s failure to perceive the risk involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation considering the nature and purpose of the actor’s conduct and the circumstances known to the actor.

Ark.Code Ann. § 5-2-202(4) (Repl. 2006).

The issue before us is whether, viewing the evidence in the light most favorable to the State, the evidence was sufficient to support appellant’s conviction. Appellant argues that the accident was caused by the rain, was instantaneous, and gave him no time to react. He contends that substantial evidence does not support his conviction for negligent homicide.

We turn to our supreme court’s opinion in Utley v. State, 366 Ark. 514, 237 S.W.3d 27 (2006), in which the court affirmed a negligent-homicide conviction in similar circumstances. In that case, Mr. Utley was driving a commercial garbage truck and crossed the center line, killing a driver traveling in the opposite direction. Id. In that case, as here, there was no evidence that Mr. Utley braked, swerved, or did anything to avoid hitting the victim. Id. The court reasoned that “[a] person driving a garbage truck around a curve and Ron a bridge should be aware that driving on the wrong side of the road presents a substantial and unjustifiable risk that he might hit a car traveling in the opposite direction and kill someone in that car.” Id. at 518, 287 S.W.3d at 80.

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Bluebook (online)
2015 Ark. App. 295, 462 S.W.3d 364, 2015 Ark. App. LEXIS 400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sizemore-v-state-arkctapp-2015.