Carlton Shutes v. State of Arkansas

Cite as 2020 Ark. App. 99
Reason: I attest to the accuracy
and integrity of this document
ARKANSAS COURT OF APPEALS
Date: 2021-06-30 12:27:56 DIVISION III
No. CR-19-692
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OPINION DELIVERED: FEBRUARY 12, 2020
CARLTON SHUTES
APPELLANT APPEAL FROM THE UNION
COUNTY CIRCUIT COURT
[NO. 70CR-18-339]
V.
HONORABLE HAMILTON H.
SINGLETON, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED

ROBERT J. GLADWIN, Judge

Carlton Shutes was convicted in the Union County Circuit Court of first-degree

battery and possession of a firearm by certain persons, and the jury sentenced him to 900

months’ imprisonment. On appeal, he argues that insufficient evidence supports his

conviction. We affirm because his argument is not preserved for appellate review.

Shutes was charged by amended information with aggravated robbery, first-degree

battery, being a felon in possession of a firearm, and being a habitual offender. At the jury

trial, Willie Simmons testified that he had known Shutes for over thirty years and that they

had been smoking marijuana together at Simmons’s apartment on July 21, 2017. He said

that Shutes asked if he wanted “the last couple of ounces [of marijuana] that he had left,”

and Simmons accepted. Shutes left and came back after ten minutes. When Shutes

knocked, Simmons let him in and walked away toward the kitchen, and Shutes locked the

door and walked toward the living room. Simmons said that when he turned around,
Shutes was pointing a pistol at his face. He said that Shutes accused him of trying to set him

up, and when Simmons walked toward him, Shutes shot him in the leg. Shutes then pulled

out a bag and asked Simmons where he kept the money. Simmons told him he had $330

in his wallet, which was on the kitchen table. When Shutes went toward the kitchen,

Simmons went to the front door and crawled through to the sidewalk. He told the people

outside to call the police and an ambulance because Shutes had shot him and robbed him.

He said that Shutes came out and was standing over him and that he kept hearing a click.

After the clicks, Shutes ran down the stairs and away. Simmons said that Shutes stole the

money from his wallet and took his cell phone and some cigarettes. Simmons explained

that a titanium rod was placed in his leg at the hospital, and he was sent to Little Rock,

where his surgery had to be redone. He underwent physical therapy for his leg for two or

three months, and he said that he had suffered mentally and emotionally from the incident.

On cross-examination, Simmons identified a picture of his kitchen and said that he

recognized a scale on the kitchen table and that he uses the scale to weigh marijuana. He

also recognized the police scanner, rolling papers, and sandwich bags on the table.

Dr. Kenneth Gati testified that he is an orthopedic surgeon and that he was called to

the hospital to examine Simmons on July 21, 2017. He said that Simmons had been shot

in the leg, which was broken into multiple pieces. A metal rod was put into the middle

part of the bone to stabilize the leg, and screws were placed through the bone and into the

rod. Dr. Gati testified about the risks involved in gunshot wounds and surgery, including

scarring, infection, nerve damage, and misalignment of the bones causing one leg to be

shorter than the other.

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Dorothy Coleman testified that she lives in the apartment below Simmons’s. She

said that she heard “a commotion” upstairs. When she heard a loud pop, she walked outside,

looked up at the balcony, and heard Simmons yelling, “Help me . . . he shot me!” She said

she did not know what he was saying until the door opened and Simmons fell out. She said

that Shutes was standing over Simmons with a gun in his hand. She recognized Shutes and

asked him what he was doing. She saw that he was holding a silver gun and that he was

trying to load it. She said he was pulling back on the gun while standing over Simmons.

She said that Shutes did not respond to her question, and when he stepped over Simmons

and came down the stairs, she stepped back into her apartment because she did not know

what he was going to do with the gun. She said that he left with the gun in his hand. She

said that Shutes had been coming to Simmons’s apartment for weeks and that she thought

they were friends. After she called the ambulance, she went upstairs, and Simmons asked

her to get his phone to call his girlfriend. She said that she did not find a phone in Simmons’s

apartment and that Simmons told her that Shutes had taken his money.

Tyrone Hampton testified that he also lives in the same apartment complex and that

his apartment is next door to Coleman’s. Hampton works with search and rescue for the

Union County Sheriff’s Office. He said that on July 21, 2017, he was in his apartment

when he heard a big boom. Seconds later, he heard Simmons yelling for him. He went

out and looked up. He saw Simmons lying on the ground, and Simmons said that Shutes

had shot him. He saw Shutes standing over Simmons with a weapon in his hand pointed

at Simmons’s head. Hampton stepped back in his apartment and used his police radio to

call dispatch, and when he stepped back out, Shutes had come down the stairs. Shutes

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looked directly at Hampton then “took off and ran.” He said that Shutes still had the

weapon in his hand when he ran.

Tammie Martin testified that she is a criminal investigator for the El Dorado Police

Department. She was sent to the scene of the shooting, and she observed blood in front of

the apartment and on the door and a pool of blood inside Simmons’s residence. She

photographed the inside of the apartment. She found a shell casing on the living room floor

and the victim’s wallet, containing no cash, on the kitchen table, but she did not find any

guns. She said that Shutes could not be found, that she eventually enlisted the U.S. Marshal

Service to help find him, and that he was found almost a year later.

Scott Harwell testified that he is also a criminal investigator for the El Dorado Police

Department and that he, too, was called to the scene that day. He arrived while Simmons

was still lying on the second-floor balcony of the apartment complex. He said that Simmons

identified his attacker as Shutes. Once Simmons was taken to the hospital by ambulance,

Detective Harwell photographed the scene with Detective Martin. He said that Simmons

had given them permission to search the apartment and that they found no other evidence

aside from the blood and shell casing. He said that they seized the drug paraphernalia and

the wallet. He said that they found no firearms, ammunition, marijuana, or narcotics.

Shutes’s defense counsel moved for a directed verdict at the close of the State’s

evidence. Counsel argued in part:

With regard to Count Two [battery], we still do not know what happened.
There was an injury, there is not any question about there was a shooting, but
whether the shooting was intentional or if it was either reckless or other [sic]
negligent, we do not know. Again, we would be guessing were it to go to the jury
right now. So, I would move for a directed verdict on both counts.

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The circuit court denied the motion for directed verdict.

Shutes testified that he had known Simmons for over thirty years and that they had

never had any problems. He admitted that he had been convicted of felonies in the past.

He said that he was with Simmons on July 20, 2017, and that they had smoked marijuana.

He said that he obtained cocaine for Simmons in exchange for $300. He said that Simmons

put it on the scale and that they both saw that the cocaine weighed seven grams. He said

that on July 21, he went back to Simmons’s apartment and that Simmons was “irate.” He

said that he thought Simmons had “been up all night, or whatever, maybe his hand in the

cookie jar, I do not know.” He said that Simmons claimed that Shutes had shorted him on

the cocaine. He said that he reminded Simmons that they had both seen the scale when the

cocaine was weighed. He said that they argued and that Simmons’s gun was on the table,

where he always kept one. He said that this gun was different from the one Simmons usually

kept. He said that Simmons argued about the cocaine’s weight and said that he wanted his

money back. He said that Simmons went toward the gun, and when he did, Shutes ran

into him. Shutes said that he remembered grabbing Simmons’s arm or wrist with one hand

and that

[w]ith the other arm, I tried to grab him. By that time, I guess he had got the pistol
in his hand; this all happened pretty quick. I heard a pop myself, so I threw my
hands up and just ran for the door and ran downstairs and took off because the fact I
know that I am a felon and cannot be around guns.

Shutes’s counsel moved for a directed verdict “based on the same reasons as before,”

and the circuit court denied it. The jury returned with a not-guilty verdict on the

aggravated-robbery charge but found Shutes guilty of first-degree battery and of being a

felon in possession of a firearm. He was sentenced to thirty years for the possession charge,

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thirty years on the battery charge, and fifteen years for using a firearm in committing the

battery.

Shutes filed a notice of appeal, and this appeal followed. Shutes argues that the circuit

court erred by denying his motions for directed verdict. He contends that his conviction

relies solely on circumstantial evidence. He claims that no direct evidence was produced

that he was guilty of first-degree battery and that there were no corroborating witnesses to

support Simmons’s self-serving allegations. He claims that the State had the burden of

proving that he acted with the “purpose” of causing serious physical injury to Simmons.

Ark. Code Ann. § 5-13-201 (Supp. 2019). He contends that the State failed to prove that

he acted with purpose. He also claims that circumstantial evidence was insufficient to

convict because it left the jury to speculation and conjecture. See Gregory v. State, 341 Ark.

243, 15 S.W.3d 690 (2000); Delviney v. State, 14 Ark. App. 70, 685 S.W.2d 179 (1985).

The State asserts that Shutes’s directed-verdict motion raised no challenge to what

he now alleges is uncorroborated circumstantial evidence, no challenge to the State’s

purported failure to exclude every reasonable hypothesis but his guilt, and no challenge to

the alleged lack of proof that he acted with the purpose of causing serious physical injury

when he shot Simmons. Shutes argued, “we don’t know what happened,” and “we would

be guessing” about “whether the shooting was intentional, [reckless, or negligent]” if the

case “were to go to the jury right now.” Defense counsel conceded that there was a

shooting, and he did not challenge the sufficiency of the evidence establishing Shutes’s

possession of a firearm. Further, he admitted to Shutes’s prior felony convictions. Thus,

the directed-verdict argument did not mention the arguments on which he now relies.

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We agree with the State’s assertion. We have held that when an appellant advances

an argument on appeal that is different from the one the appellant made in the directed-

verdict motion at trial, we cannot consider it because a party cannot change the grounds for

a directed-verdict motion on appeal but is bound by the scope and nature of the argument

presented at trial. Magness v. State, 2012 Ark. App. 609, at 8, 424 S.W.3d 395, 401; see also

Marbley v. State, 2019 Ark. App. 583, at 4, 590 S.W.3d 793, 796; Petty v. State, 2017 Ark.

App. 347, at 3–4, 526 S.W.3d 8, 10–11. Appellate review is limited to those grounds that

were presented to the circuit court. Accordingly, we affirm.

Affirmed.

HARRISON and WHITEAKER, JJ., agree.

Potts Law Office, by: Gary W. Potts, for appellant.

Leslie Rutledge, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.

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