ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE KAREN R. BAKER

DIVISION II

JOHN PAUL CURTIS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-1429

JUNE 20, 2001

APPEAL FROM THE COLUMBIA COUNTY CIRCUIT COURT

[NO. 1999-105]

HONORABLE LARRY CHANDLER,

CIRCUIT JUDGE

AFFIRMED

Appellant, John Paul Curtis, was convicted of second-degree murder and sentenced to fifteen years' imprisonment in the Arkansas Department of Correction. Appellant has four points on appeal. First, appellant argues that the requirement to preserve an ineffective assistance of counsel argument at trial, or through a Rule 37 motion, denies due process and violates the Sixth Amendment of the Constitution. Second, appellant argues he received ineffective assistance of counsel, and therefore, appellant's conviction should be reversed and remanded for a new trial. Third, appellant argues the trial court erred by granting the State's motion in limine excluding prior bad acts of the victim. Fourth, appellant argues the trial court erred by denying the appellant's directed-verdict motion. We do not reach the merits of appellant's first two points on appeal because appellant failed to preserve them for appellate review. We find no merit in appellant's two remaining points and affirm.

On January 24, 1999, appellant and a friend, Shane Nipper, both of Emerson, were involved in a quarrel with a group of young men from Magnolia. Following the incident, which took place at a Magnolia bowling alley, appellant and Shane Nipper were headed down Highway 79 toward Emerson. Conflicting testimony described the events which occurred on the highway when several vehicles stopped on the side of the road. The victim, Josh Poiencot, exited one vehicle and appellant and his passenger, Shane Nipper, exited appellant's truck. Nipper grabbed a table leg as a weapon and approached Poiencot prepared to fight. Poiencot fled from Nipper down the ditch and along the highway. Appellant jumped into his truck and began speeding along the highway, following the direction of Poiencot. Although there is conflicting testimony as to the events which unfolded as Poiencot ran down the ditch and highway followed by appellant's truck, it is uncontradicted that appellant ran over Poiencot, who died as a result of his injuries.

It is well settled that we consider the sufficiency of the evidence, including any evidence which may have been inadmissible, prior to considering appellant's other arguments. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Bohanan v. State, 72 Ark. App. 422, 38 S.W.3d 902 (2001) (citing Jenkins v. State, 60 Ark. App. 1, 959 S.W.2d 57 (1997)). Substantial evidence is evidence forceful enough to compel a conclusion with reasonable certainty, without resort to conjecture. Id. (citing Breedlove v. State, 62 Ark. App. 219, 970 S.W.2d 313 (1998)). Wereview the evidence in the light most favorable to the State, considering only the evidence that tends to support the verdict. Jenkins v. State, supra.

A person commits murder in the second degree if, with the purpose of causing serious physical injury to another person, he causes the death of any person. Ark. Code Ann. § 5-10-103(a)(2) (Repl. 1997). A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. Ark. Code Ann. § 5-2-202(1) (Repl. 1997). Since intent cannot ordinarily be proven by direct evidence, jurors are allowed to draw upon their common knowledge and experience to infer intent from the circumstances. Robinson v. State, 293 Ark. 243, 737 S.W.2d 153 (1987). Because of the difficulty in ascertaining a person's intent, a presumption exists that a person intends the natural and probable consequences of his acts. Jones v. State, 72 Ark. App. 271, 35 S.W.3d 345 (2000) (citing Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990)). The intent to commit the offense may be inferred from the defendant's conduct and the surrounding circumstances. Id. (citing Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995)).

Here, appellant specifically challenges the sufficiency of the evidence presented by the State to prove that he acted with the purpose of causing serious physical injury to Poiencot. We find no merit in appellant's argument. There was testimony at trial that appellant was chasing Poiencot when he sped down the highway towards Poiencot. There was also testimony that appellant was swerving from the left to the right while continuing down the highway, and that he swerved toward the ditch where Poiencot was running. Poiencot then ran back into the highway apparently to avoid being hit by appellant. After Poiencot ran from the ditch into the highway, testimony showed that appellant swerved his truck back toward the left, striking Poiencot. Testimony indicated that Poiencot was facing the truck at the point of impact, and his hands went onto the hood. Witnesses also stated that appellant made no attempt to stop until he had completely run over Poiencot. The credibility of witnesses is an issue for the jury and not the court. Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000). The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. Therefore, we conclude that there was sufficient evidence of appellant's conduct and from which the jury could infer appellant's intent.

We move next to appellant's first and second points on appeal. Appellant asserts as his first point that the requirement to preserve an ineffective assistance of counsel argument at trial or through a Rule 37 motion denies due process and violates the Sixth Amendment of the Constitution. Appellant claims his constitutional rights were violated because he was not advised by the trial court of his right to raise the issue of ineffective assistance of counsel by a Rule 37 motion. Appellant further claims that an unacceptable burden is placed on a defendant by requiring that he assert an ineffective assistance of counsel claim while standing beside his counsel at the conclusion of a proceeding. In addition, appellant asserts that the window of time during which appellant must exhaust his state remedy before seeking relief from federal court violates due process. As his second point, Appellant asserts that he received ineffective assistance of counsel at trial.

Appellant concedes that these arguments are not preserved for appeal. Claims of ineffective assistance of counsel may not be raised on direct appeal unless the issue was first considered by the trial court. Reed v. State, 323 Ark. 28, 912 S.W.2d 929 (1996). The reason for this rule is that an evidentiary hearing and finding as to the competency of appellant's counsel by the trial court better equips the appellate court on review to examine in detail the sufficiency of the representation. Id. Likewise, we will not address constitutional arguments raised for the first time on appeal. Tucker v. State, 336 Ark. 244, 983 S.W.2d 956 (1990) (citing Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998); McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997); Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997); Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997)).

The final argument we consider is appellant's third argument on appeal. For his third point appellant argues that the trial court erred in granting the State's motion in limine excluding prior bad acts of the victim. The standard of review for a trial court's ruling on the admissibility of prior bad acts is abuse of discretion. Jarrett v. State, 310 Ark. 358, 833 S.W.2d 779 (1992). This court will not reverse absent an abuse of discretion. Id. Here, the motion in limine specifically sought to exclude two charges of battery and one criminal mischief charge against the victim, Josh Poiencot. The motion stated that the victim had died before the charges were brought to trial, and the prejudicial nature of the prior acts were outweighed the probative value. The trial court concluded that the facts of this case did not support the allegation that appellant knew of the prior bad acts of the victim. The trial court noted that while the admission of a victim's prior conduct might be appropriate in caseswhere self-defense was asserted; it was not relevant here, where the appellant's defense was denial or accident. See Heinze v. State, 309 Ark. 162, 827 S.W.2d 658 (1992). We conclude that the trial court did not abuse its discretion by granting the State's motion in limine to exclude the victim's prior bad acts.

Affirmed.

Bird and Roaf, JJ., agree.