Draft v. State

Cite as 2016 Ark. App. 216

ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-15-708

Opinion Delivered April 20, 2016
ROBERT DRAFT
APPELLANT APPEAL FROM THE WHITE
COUNTY CIRCUIT COURT
[NO. CR-2014-206]
V.
HONORABLE ROBERT EDWARDS,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED

M. MICHAEL KINARD, Judge

Robert Draft appeals from his conviction of second-degree murder, for which he was

sentenced to thirty years’ imprisonment plus a fifteen-year enhancement, due to his use of

a firearm in committing the offense, to be served consecutively. He contends that the

evidence is insufficient to support the finding of guilt. We affirm.

On May 18, 2014, appellant became angry at his wife and beat her badly both with

his hands and with the butt of a shotgun. She managed to escape and drove approximately

200 yards up a gravel driveway to her parents’ home. Mrs. Draft’s mother then drove Mrs.

Draft to the hospital emergency room. Mrs. Draft’s father, Douglas Cloyes, remained at his

home. Appellant then drove his truck, with a loaded .223-caliber semi-automatic rifle, to

the Cloyeses’ home. Mr. Cloyes was standing near the gravel driveway, and appellant parked

his truck in the grass between Mr. Cloyes and the house. According to appellant, Mr.

Cloyes began shooting at him. Appellant testified that he then reached back into his truck,
Cite as 2016 Ark. App. 216

grabbed his rifle, and began firing at Mr. Cloyes. Mr. Cloyes was hit by five rounds from

appellant’s rifle and died as a result. Appellant returned to his home, gathered some money

and a telephone, disassembled the rifle and threw it in a river, and drove to Michigan. A .22-

caliber pistol was found under Mr. Cloyes’s body, and three spent .22 cartridges were found

nearby. At least thirteen spent .223 cartridges were found approximately sixty-five feet from

the body, at the site of truck-tire tracks in Mr. Cloyes’s yard.

Appellant was charged with first-degree murder in the death of his father-in-law and

second-degree battery in the beating of his wife. After a jury trial, he was convicted of the

lesser-included offense of second-degree murder and second-degree battery. As to second-

degree murder, appellant moved for a directed verdict of acquittal on the following grounds:

“[T]he State has failed again to provide any evidence that [appellant] caused the death of Mr.

Cloyes and, if they did so, they did not prove that [appellant] did so knowingly.” The

motion was denied both at the close of the State’s case and again at the close of all of the

evidence.

On appeal, appellant challenges only the murder conviction, arguing that the trial

court erred in denying his motion for a directed verdict of acquittal. He has abandoned the

argument that he did not kill Mr. Cloyes. However, he continues to argue that there is no

substantial evidence to support the finding that he “knowingly” caused the death.

A motion for a directed verdict is a challenge to the sufficiency of the evidence.

Steele v. State, 2014 Ark. App. 257, 434 S.W.3d 424. Where sufficiency is challenged on

appeal from a criminal conviction, we consider only that proof that supports the verdict.

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Davis v. State, 2015 Ark. App. 234, 459 S.W.3d 821. We view that evidence and all

reasonable inferences deducible therefrom in the light most favorable to the State. Id. We

will affirm if the finding of guilt is supported by substantial evidence. Id. Evidence is

substantial if it 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. While it is true that circumstantial evidence is insufficient if it leaves the jury

solely to speculation and conjecture, the fact that evidence is circumstantial does not

necessarily render it insubstantial. Simpkins v. State, 2010 Ark. App. 723. Circumstantial

evidence is sufficient if it excludes every other reasonable hypothesis consistent with

innocence. Id. Whether the circumstantial evidence excludes every reasonable hypothesis

consistent with innocence is for the fact-finder to decide; on review, we must determine

whether the fact-finder had to resort to speculation and conjecture to reach its decision.

Davis, supra. The weight of the evidence and credibility of the witnesses are matters for the

fact-finder, not for the trial court on a directed-verdict motion or this court on appeal.

Simpkins, supra.

A person commits murder in the second degree if he knowingly causes the death of

another person under circumstances manifesting extreme indifference to the value of human

life. Ark. Code Ann. § 5-10-103(a)(1) (Repl. 2013). A person acts “knowingly” with

respect to his conduct when he is aware that it is practically certain that his conduct will

cause the result. Ark. Code Ann. § 5-2-202(2)(B) (Repl. 2013). A criminal defendant’s

intent or state of mind is seldom capable of proof by direct evidence and must usually be

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inferred from the circumstances of the crime. Satterfield v. State, 2014 Ark. App. 633, 448

S.W.3d 211. Such circumstances can include the type of weapon used, the manner of its use,

and the nature, extent, and location of the wounds inflicted. Id. Conduct of the accused

following the crime, such as flight or concealment or destruction of evidence, is also relevant

and properly considered as evidence of consciousness of guilt. Id. Moreover, because of the

difficulty in ascertaining one’s intent or state of mind, a presumption exists that a person

intends the natural and probable consequences of his acts. Id.

Here, appellant admitted at trial that he had beaten his wife. He then drove his truck,

containing a loaded rifle, the short distance to his in-laws’ home. During a confrontation

with his father-in-law, appellant took the rifle and shot it at his father-in-law from a distance

of approximately sixty-five feet. Appellant admitted that he pulled the trigger at least thirteen

times. He does not dispute that five of those shots hit the victim and caused his death.

Thereafter, appellant returned to his house, gathered some money and his phone, and fled

to Michigan, taking the rifle apart and throwing it in a river along the way. We conclude

that this evidence is more than adequate to support the jury’s finding that appellant

knowingly caused the victim’s death.

To the extent that appellant argues that the evidence is insufficient to negate the

conclusion that he acted in self-defense, we do not address the issue because it was not

preserved for appeal. In order to preserve for appeal any argument pertaining to the

sufficiency of the evidence to support a jury verdict in a criminal case, the defendant must

make a specific motion for a directed verdict of acquittal at the close of the evidence

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presented by the prosecution and again at the close of all of the evidence. Ark. R. Crim. P.

33.1(a) & (c). The motion must advise the trial court of the exact element that the defendant

contends the State has failed to prove. Rodriguez-Gonzalez v. State, 2014 Ark. App. 208.

The failure to make the challenge at the times and in the manner required by the rule will

constitute a waiver of any question pertaining to the sufficiency of the evidence. Ark. R.

Crim. P. 33.1(c).

In general, a statutory justification is a defense to conduct that would otherwise

constitute an offense. See, e.g., Ark. Code Ann. §§ 5-4-602; -603(a); -604(a); -605 (Repl.

2013). Arkansas Code Annotated section 5-2-607(a) (Repl. 2013) provides that the use of

deadly physical force in defense of a person is justified in certain circumstances. Justification

becomes a defense when any evidence tending to support its existence is offered to support

it. Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003). By statute, a justification, such

as self-defense, is considered an element of the offense and, once raised, must be disproved

by the prosecution beyond a reasonable doubt. Id.; Metcalf v. State, 2011 Ark. App. 55.

Here, at the close of the State’s case, appellant made the following motion for a

directed verdict as to the homicide charge:

At this time, the defense would move for a directed verdict dealing with the murder
in the first [degree] . . . . [W]e believe the State has failed to provide substantial
evidence . . . that [appellant] caused the death of Mr. Cloyes. Even if they have
proven that, they have not shown that he did so with the purpose of causing his
death. . . . [W]ith regard to . . . murder in the second, the lesser, we would move
and argue that the State has failed again to provide any evidence that [appellant]
caused the death of Mr. Cloyes and, if they did so, they did not prove that he did so
knowingly . . . .

Appellant’s motion followed this same pattern for the additional lesser-included offenses of

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manslaughter and negligent homicide. At the close of all of the evidence, appellant

“renew[ed]” his earlier motions for directed verdict “as if I had restated them all verbatim

right here.” At no time did appellant argue self-defense as justification for his actions as part

of his directed-verdict motions. Therefore, any challenge to the sufficiency of the evidence

to negate the defense of self-defense was not preserved for appeal. Lee v. State, 2010 Ark.

App. 15.

Affirmed.

VIRDEN and HARRISON , JJ., agree.

James Law Firm, by: William O. “Bill” James, Jr., for appellant.

Leslie Rutledge, Att’y Gen., by: Rachel Kemp, Ass’t Att’y Gen., and Garrett Morgan, 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.

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