Kristopher Gould v. State of Arkansas

Cite as 2023 Ark. App. 227
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-22-404

KRISTOPHER GOULD OPINION DELIVERED APRIL 19, 2023
APPELLANT
APPEAL FROM THE POINSETT
COUNTY CIRCUIT COURT
V. [NO. 56CR-20-227]

STATE OF ARKANSAS HONORABLE PAMELA HONEYCUTT,
APPELLEE JUDGE

AFFIRMED

ROBERT J. GLADWIN, Judge

Kristopher Gould appeals his December 9, 2021 conviction on a charge of felony

negligent homicide, in violation of Arkansas Code Annotated section 5-10-105(a)(1)(A), (B)

and (a)(2) (Repl. 2013). He argues that the circuit court committed reversible error when it

denied his motion for directed verdict because the State did not prove each element of

negligent homicide and when it did not allow a jury instruction on the lesser-included

offense of misdemeanor negligent homicide. We affirm.

I. Facts and Procedural History

On June 12, 2020, the State filed an information alleging that Gould had committed

the crimes of negligent homicide, a Class B felony, in violation of Ark. Code Ann. § 5-10-

105(a); and of possession of an open container containing alcohol in a motor vehicle, a Class

C misdemeanor, in violation of Ark. Code Ann. § 5-71-218 (Supp. 2021). The charges
stemmed from allegations that Gould hit and killed Preston Brayfield as a result of his driving

his car while intoxicated and at a high rate of speed through a construction zone where

Brayfield was doing roadwork on Interstate 555 North near Tyronza.

A jury trial was held on December 7–8, during which the State offered testimony

from several witnesses. Arkansas State Police Trooper Tommy Fitzgerald, who investigated

the fatal vehicle accident, explained that the accident happened on May 30 on I-555 North

in a construction zone on a bridge at the Tyronza River. Trooper Fitzgerald said he arrived

at the scene around 7:44 p.m., and he confirmed that it was still daylight at the time. Trooper

Fitzgerald testified that he used measurements taken at the scene to produce computer-

generated diagrams depicting the accident at precrash, crash, and postcrash stages. Using the

diagrams, Trooper Fitzgerald explained that the inside northbound lane of traffic on I-555

had been closed—indicated by orange barrels—up to two miles ahead of the construction zone

where Brayfield was working at the time of the accident.

Trooper Fitzgerald testified that, from the debris, blood, and other evidence at the

scene, he determined that the fatal impact took place in the closed northbound lane. Among

the evidence in the closed lane, Trooper Fitzgerald found Brayfield’s body, including his

right leg, which had been traumatically amputated in the accident, as well as Brayfield’s hat

and boot. Trooper Fitzgerald noted that tire markings at the scene indicated that, after the

impact, Gould’s car left the closed northbound lane, crossed over the open northbound lane

of traffic and shoulder, and ultimately rolled over in an adjacent field. Trooper Fitzgerald

testified that he had “[n]o doubt whatsoever” that the impact occurred inside the closed lane

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of traffic at the construction site, but he was unable to determine exactly when Gould had

entered the closed lane.

Trooper Fitzgerald also testified that, when he talked to Gould at the scene, he

smelled “an odor of intoxicants coming from [Gould]” and observed that “[Gould’s] eyes

were bloodshot[,]. . . [and] his speech was slurred.” Additionally, Trooper Fitzgerald saw “a

cooler in the front floorboard” of Gould’s car “as well as a bunch of empty [Busch Light]

beer cans.” He stated that he found more Busch Light beer cans and a bottle of liquor inside

the cooler. Also, “in the debris field from where [Gould’s] car had rolled over, [he] noticed

there was a Busch Light can in . . . a neoprene koozie.” Trooper Fitzgerald noted that Gould

admitted to him “that he drank some earlier that day.”

Trooper Fitzgerald pointed out that he obtained a warrant for a blood draw and

transported Gould to a hospital where he watched hospital staff draw Gould’s blood. He

subsequently took custody of the blood sample and personally delivered it to the Arkansas

State Crime Laboratory.

Lauren Havens, a forensic toxicologist with the Arkansas State Crime Laboratory,

testified that she analyzed Gould’s blood sample and determined that the blood-alcohol

concentration was 0.326, or approximately four times more than the “legal limit” of 0.08.

Corporal Jay Bryan with the Arkansas State Police testified as an expert in the field

of event-data recording. He said the “black box”—or event-data recorder—from Gould’s car

indicated that the airbag deployed when the car collided with Brayfield in a frontal impact.

He said it also showed that the car was traveling at a rate of ninety-five miles an hour two

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and a half seconds before the impact and that the brakes were not engaged at that point.

Corporal Bryan stated that the brakes were engaged somewhere between two and two and a

half seconds before the impact. He testified that at one and a half seconds before impact, the

car was traveling at seventy-one miles an hour, and at a half second before impact, it was

traveling at sixty-seven miles an hour. Corporal Bryan explained that, allowing a 4 percent

margin of error for the speedometer, he calculated a speed range of between sixty-nine and

seventy-three miles an hour at the time of impact.

Jennifer Forsyth, a forensic pathologist with the Arkansas State Crime Laboratory,

testified that Brayfield’s death was caused by “multiple blunt force injuries,” including

multiple dislocated and fractured bones; tears in his brainstem, spinal cord, aorta, esophagus,

trachea, liver, spleen, and lungs; “and a traumatic amputation of the right lower leg.” She

testified that no other factors contributed to Brayfield’s death, noting he was “a well-

developed, well-nourished white adult male[.]”

After the State rested, and again after the close of all the evidence, Gould

unsuccessfully moved for a directed verdict on the ground that the evidence was insufficient

to prove that he negligently caused Brayfield’s death. Gould also unsuccessfully requested

and thereafter proffered a jury instruction on misdemeanor negligent homicide, which

specifically included language that “[he] negligently caused the death of Preston Brayfield.”

Gould argued that there was a rational basis in the evidence from which the jury could

conclude that Brayfield’s death was not caused by his operating a vehicle while intoxicated

or with a blood-alcohol concentration of 0.08 or more, suggesting instead that “[i]t could be

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as a result of [Brayfield’s] stepping out in front of traffic[.]” The circuit court denied Gould’s

request to give the proffered instruction and instructed the jury only on felony negligent

homicide.

The jury found Gould guilty of negligent homicide, and he was sentenced to fifteen

years in the Arkansas Department of Correction pursuant to a sentencing order entered on

December 9. Gould filed a timely notice of appeal on January 6, 2022.

II. Discussion

A. Sufficiency of Evidence Regarding Negligent Homicide

On appeal, a motion for directed verdict is treated as a challenge to the sufficiency of

the evidence. McEuen v. State, 2023 Ark. App. 65, at 5, 660 S.W.3d 615, 619. In reviewing

a challenge to the sufficiency of the evidence, we review the evidence in the light most

favorable to the State, considering only evidence that supports the verdict. Id. We will affirm

the verdict if substantial evidence supports it. Id. at 6, 660 S.W.3d at 619. Substantial

evidence is evidence of sufficient force and character that it will, with reasonable certainty,

compel a conclusion without resorting to speculation or conjecture. Id. Substantial evidence

may be direct or circumstantial. Id. But circumstantial evidence is substantial only if it

excludes every reasonable hypothesis other than the guilt of the accused. Id.

The jury may consider evidence in light of the jurors’ observations and experiences

and is entitled to draw reasonable inferences from the evidence. King v. State, 2021 Ark. App.

339, at 3–4. Witness credibility is also an issue for the fact-finder, who is free to believe all

or a portion of any witness’s testimony and whose duty it is to resolve questions of conflicting

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testimony and inconsistent evidence. E.g., Swanigan v. State, 2019 Ark. App. 296, at 9, 577

S.W.3d 737, 745.

“A person commits the offense of negligent homicide if he . . . negligently causes the

death of another person, not constituting murder or manslaughter, as a result of operating

a vehicle . . . [w]hile intoxicated[]” or with “an alcohol concentration of eight hundredths

(0.08) or more in [his] breath or blood based upon the definition of alcohol concentration

in § 5-65-204, as determined by a chemical test of [his] blood, urine, breath, saliva, or other

bodily substance.” Ark. Code Ann. § 5-10-105(a)(1)(A), (B) & (a)(2). A person “acts

negligently with respect to attendant circumstances or a result of his . . . conduct when [he]

should be aware of a substantial and unjustifiable risk that the attendant circumstances exist,

or the result will occur.” Ark. Code Ann. § 5-2-202(4)(A) (Repl. 2013). 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)(B).

In order to sustain a conviction, the State was required to prove that Gould

negligently caused the death of Brayfield. Gould notes that the State did not present any

witnesses who observed the location of the impact, nor did the State present any video

recordings or any other direct evidence as to which lane Gould’s vehicle was in when it struck

Brayfield. Gould submits that without this type of direct evidence, the State was forced to

rely on circumstantial evidence to prove that he negligently caused Brayfield’s death. He

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reiterates that circumstantial evidence is substantial only if it excludes every reasonable

hypothesis other than the guilt of the accused. McEuen, supra.

Gould acknowledges that the State presented evidence that he struck Brayfield with

his automobile while Brayfield was employed at a worksite on I-555 as well as evidence that

Brayfield died because of this collision. Gould does not dispute that the State also presented

evidence that he was traveling well above the speed limit and that he had a blood-alcohol

level approximately four times the legal limit. He even admits that the State presented

evidence that at some point, Gould’s vehicle crossed into the traffic lane that was closed for

construction; however, he points out that the State presented no direct evidence as to

whether Gould’s vehicle entered the restricted lane before or after striking Brayfield. He

asserts that the State likewise did not present direct evidence as to where the point of impact

was, implying that the State’s proof did not show which lane Gould’s vehicle was in when it

struck Brayfield.

Gould argues that without such proof, the State failed to negate the reasonable

explanation that Brayfield may have accidentally stepped into Gould’s lane of traffic, thereby

causing the collision. He contends the State presented no evidence to rule out what he calls

a plausible hypothesis. Accordingly, Gould asserts that the State failed to prove the element

of causation, and the circuit court erred in failing to grant his motion for directed verdict.

We disagree, and the evidence in the record before us supports the finding that Gould

caused Brayfield’s death by negligently driving his car into Brayfield in a construction zone

where Brayfield was doing roadwork. It was still daylight when the accident occurred, and

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the existence of the construction zone was clearly marked with orange barrels closing the

inside northbound lane of traffic for approximately two miles ahead of the area where

Brayfield was working at the time of the incident. Evidence was also presented that Gould

was driving in the closed traffic lane when he fatally struck Brayfield. But even if the fatal

impact occurred in the open—rather than closed—traffic lane, as Gould suggests could have

occurred, his conduct was no less criminally negligent.

No matter which lane he was in, evidence was presented that Gould was driving at a

speed of ninety-five miles an hour less than three seconds before he struck Brayfield through

what was a clearly marked construction zone. He did not hit the brakes until a mere two

seconds before he made frontal impact with Brayfield’s body at a speed of between sixty-nine

and seventy-three miles an hour. Additionally, consistent with testimony that Gould had

alcohol in his car, smelled of alcohol, had bloodshot eyes and slurred speech, and admitted

he had been drinking, an undisputed blood test indicated he had a blood-alcohol

concentration of 0.326—four times the legal limit—at the time of the accident.

Accordingly, we hold that sufficient evidence was presented at trial from which the

jury could reasonably conclude that Gould’s failure to perceive the risk in driving while

intoxicated and at high speed through a well-marked construction zone “involved a gross

deviation from the standard of care that a reasonable person would observe” as required by

section 5-2-202(4)(B). Also, we reject Gould’s factually unsupported suggestion that Brayfield

may have been negligent by stepping into the open traffic lane and hold that “contributory

negligence would not lessen [Gould’s] culpability.” See Courtney v. State, 14 Ark. App. 76, 78,

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684 S.W.2d 835, 836 (1985) (affirming a negligent-homicide conviction supported by

evidence that street was well lighted, and the appellant was speeding, under the influence of

alcohol, and never applied his brakes before he hit pedestrian).

B. Jury Instruction on Misdemeanor Negligent Homicide

A circuit court’s ruling on whether to give a jury instruction will not be reversed

absent an abuse of discretion. Bragg v. State, 2021 Ark. App. 381, at 8. The refusal to give an

instruction on a lesser-included offense is reversible error if the instruction is supported by

even the slightest evidence; however, we will affirm the circuit court’s decision to not give an

instruction on a lesser-included offense if there is no rational basis for doing so. Id. at 8–9.

Here, the circuit court rejected Gould’s request for the jury to be instructed on

misdemeanor negligent homicide. The Arkansas Code has a specific statute that deals with

lesser-included offense:

(b) A defendant may be convicted of one (1) offense included in another offense
with which he or she is charged. An offense is included in an offense charged if the
offense:

(1) Is established by proof of the same or less than all of the elements required
to establish the commission of the offense charged;

(2) Consists of an attempt to commit the offense charged or to commit an
offense otherwise included within the offense charged; or

(3) Differs from the offense charged only in the respect that a less serious injury
or risk of injury to the same person, property, or public interest or a lesser kind of
culpable mental state suffices to establish the offense’s commission.

Ark. Code Ann. § 5-1-110 (Repl. 2013).

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Gould submits that the circuit court erred in refusing to give the proffered

misdemeanor negligent-homicide jury instruction. He claims that there is no dispute that

the misdemeanor version of negligent homicide is a lesser-included offense of the felony

version. Gould notes the main difference between the two offenses at issue here is whether

alcohol was involved in the commission of the crime. Gould argues that he needed only a

rational basis in order to require the circuit court to instruct the jury on misdemeanor

negligent homicide. Although Gould concedes the State presented evidence as to the

presence of alcohol, he notes that the jury was not required to believe that evidence.

Swanigan, supra.

Gould argues that here, the circumstances surrounding the alleged criminal act

provide a rational basis for the proffered jury instruction because the jury could have rejected

the State’s assertion that Gould’s level of intoxication was the proximate cause of Brayfield’s

death. He submits that by denying the jury the opportunity to consider the misdemeanor

instruction, the circuit court ignored the rational basis that supported the instruction—that

non-alcohol-related negligence was the proximate cause of Brayfield’s death. He claims that

by withholding the misdemeanor instruction, the circuit court superseded the jury’s role as

fact-finder in this case.

We disagree and hold that the circuit court did not abuse its discretion by denying

Gould’s request for a jury instruction on misdemeanor negligent homicide. Arkansas Code

Annotated section 5-1-110 provides that a circuit court is not obligated to instruct on a lesser-

included offense unless there is a rational basis for concluding that the criminal defendant

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might be acquitted of the crime charged and convicted of the lesser-included offense. Burks

v. State, 2022 Ark. App. 494, at 17, 657 S.W.3d 180, 189. This court will not reverse a circuit

court’s ruling on whether to submit a jury instruction absent an abuse of discretion. Harmon

v. State, 2020 Ark. 217, at 13, 600 S.W.3d 586, 594. Under these standards, we hold that

the circuit court properly excluded Gould’s proffered instruction.

Gould was charged with, and the jury was instructed on, the offense of negligent

homicide committed under circumstances constituting a Class B felony, which required

proof that he negligently caused the death of another person as a result of operating a vehicle

“[w]hile intoxicated[]” or with “an alcohol concentration of eight hundredths (0.08) or more

in [his] breath or blood[.]” Ark. Code Ann. § 5-10-105(a). Gould’s proffered instruction

states, the offense of negligent homicide committed under circumstances constituting a Class

A misdemeanor, on the other hand, merely requires proof that a person “negligently cause[d]

the death of another person.” Ark. Code Ann. § 5-10-105(b). The evidence in the record

before us supports the circuit court’s finding that there was no rational basis for giving an

instruction on misdemeanor negligent homicide. Accordingly, the circuit court did not

abuse its discretion by denying Gould’s proffered instruction. See, e.g., Harmon, supra.

Gould’s argument that he was entitled to the proffered instruction because “the jury

could have rejected the State’s assertion that [his] level of intoxication was the proximate

cause of Mr. Brayfield’s death” and could have concluded, instead, that Brayfield’s death was

caused by “non-alcohol related negligence” is of no moment and does not accurately reflect

what is required to sustain a conviction for felony negligent homicide. The State need only

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have proved that Gould negligently caused Brayfield’s death “as a result of operating a

vehicle” and that, “at that time there [was] an alcohol concentration of eight hundredths

(0.08) or more” in his blood, as determined by a chemical blood test, which it easily did. Ark.

Code Ann. § 5-10-105(a)(1)(B)(i).

Not only does Gould fail to dispute the evidence supporting the additional elements

required for felony negligent homicide—namely, evidence that he was driving his car at a

high rate of speed in a construction zone when he collided with and, consequently, killed

Brayfield when his blood-alcohol concentration was well over the “legal limit” of 0.08—he

acknowledged it. He did not dispute the chemical-blood-test evidence, which established

that, at the time of the fatal-vehicle accident, he had a blood-alcohol concentration of 0.326—

nearly four times the “legal limit.” Nor did he dispute the medical testimony, which

established that Brayfield’s fatal injuries were caused by the impact from the high-speed

collision. Rather, in his closing argument, Gould’s attorney conceded that “[Gould] had been

drinking . . . .We haven’t disputed that at all[.]” He also admitted that Gould had been

driving “faster than he should have been[,]” adding, “We’ll give you that, too.” Here, there

was no rational basis on which to give the proffered negligent-homicide instruction that

merely omitted additional elements, the proof of which was supported by undisputed

evidence. Accordingly, the circuit court’s denial of Gould’s request to give the proffered

instruction was not an abuse of discretion.

Affirmed.

HARRISON, C.J., and WOOD, J., agree.

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Benjamin W. Bristow, for appellant.

Leslie Rutledge, Att’y Gen., by: Rachel Kemp, Sr. Ass’t Att’y Gen., for appellee.

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