ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

CACR03-175

November 12, 2003

LAVON MARTIN FRANKLIN AN APPEAL FROM ASHLEY

APPELLANT COUNTY CIRCUIT COURT

[CRO1-278-2]

V. HON. SAM POPE, JUDGE

STATE OF ARKANSAS AFFIRMED

APPELLEE

Wendell L. Griffen, Judge

This case arises from the criminal conviction of appellant, Lavon Martin Franklin, in Ashley County, for second-degree murder. Appellant received a twenty-year prison sentence. For his sole point on appeal, he argues that there was insufficient evidence to support his conviction for second-degree murder because the evidence did not establish his requisite intent and left open the possibility for alternate explanations of the incident, such as an accidental shooting. We affirm.

On November 17, 2001, Shiree Johnson celebrated her birthday at her home, which she shared with appellant, her boyfriend. During part of that evening, appellant played cards at Cloteen James's home, a friend of appellant. At trial, James testified that Johnson repeatedly called her home to get appellant to come home. According to her testimony, she listened in on the phone calls and Johnson stated that appellant should return home because his "stuff" had been stolen. Nonetheless, appellant refused to leave until the fourth phone call when Johnson apparently convinced appellant that the "stuff" was indeed gone. Another friend present at the James residence drove appellant home.

James also testified that everything seemed normal between appellant and Johnson earlier that evening. Later, when the phone calls began, James heard "arguing," and that appellant told Johnson, "Stop calling here." She also heard them "laughing." James also stated that appellant appeared "aggravated" about Shiree Johnson's calling.

Stephanie Collins, a friend of Johnson, testified that she was at the party at Johnson's residence. She stated that appellant "busted in the door and he told everybody that the party was over. Get out. The party was over and they needed to leave." According to Collins, appellant yelled at the guests, and all but she and a few others left the party. Appellant and Johnson then went into one of the bedrooms and Collins returned to the kitchen. Shortly afterwards, Collins heard a gunshot. She "came out of the kitchen" and saw appellant standing with a gun pointed in the air.

Johnson then asked appellant to take the bullets out of the gun. Collins stated that appellant removed the clip and that she "did not see any bullets in his hand." Collins also referred to the fact that appellant told Johnson not to have a party because "someone would steal the drugs." Appellant appeared to be unhappy. Johnson then asked appellant to dance with her. He complied, but apparently kept the gun in his hand. Afterwards, appellant sat in a chair and Johnson was leaning over him. Collins stated that she saw appellant pointing the gun at Johnson's side, but did not hear any conversation or yelling because the music was too loud. Collins returned to the kitchen, where she then heard a gunshot. She subsequently saw Johnson staggering, clutching her side.

Frederick Lambert was another guest who stayed after appellant had thrown out all the others. Lambert stated that he heard a gunshot when he had his head down eating. He then saw Johnson fall and appellant getting out of his chair. Lambert then also saw the gun lying on the floor. Lambert testified that appellant left the home through the backdoor and later came back in. After appellant had returned inside, Lambert stepped outside and allegedly saw the gun lying on the ground, apparently on or around the car port. He admitted handling the gun at that point, placing it under a bucket elsewhere at the side of the house. Lambert stated that he did not know whether the gun had been loaded. He also explained that one could just "put the clip in it." He did not know whether the gun had its clip when he saw it and handled it on the car port.

The Chief Medical Examiner at the Arkansas State Crime Laboratory, Dr. William Sturner, testified that Johnson died as a result of a gunshot wound of the left upper quadrant of her abdomen. The bullet penetrated vital organs. The entry wound had a blackish discoloration, a fact which indicated that the wound had been inflicted at close range. Sturner also testified that the lack of "peppering around the wound" indicated that the distance of the gun had probably been a "matter of inches." The gunshot went "from front to back, lower to higher and left to right." He could not determine the caliber of weapon that caused the wound.

Police officer John F. Turner of the Hamburg Police Department testified that upon his arrival he found Johnson lying face down on the floor of the living room. He also found a .45 caliber casing on the floor of the living room, underneath a chair.

Tommy Breedlove, Chief of the Hamburg Police Department, also participated in the investigation. He testified that he saw what appeared to be a bullet hole in the ceiling of the living room. He admitted that neither he nor anyone else from his department attempted to retrieve the bullet or to measure the hole in the ceiling. He also admitted that no one sent the spent casing to the crime lab. Breedlove also stated that the police later found a piece of a fragmented bullet underneath the living room carpet. He identified the gun found under a bucket outside the house as a .45 caliber semi-automatic handgun, containing one shell in the chamber that was unfired. He also stated that there were "three rounds" in the gun, one in the chamber and one in the "cover of the gun." There were none "in the clip." The police chose not to take fingerprints from the gun. Breedlove also stated that they found a small spot of blood in front of the chair where the shooting was supposed to have taken place. It appears that this was not the place where Johnson eventually fell down.

Counsel for appellant moved for a directed verdict after the State's case, claiming that there was no evidence of intent sufficient for a conviction of capital murder-the original charge on appellant. Counsel for appellant argued that the lack of evidence of intent should, at the most, lead to manslaughter. Notably, counsel also stated that there "is a possibility that we caused her death under circumstances manifesting extreme indifference to the value of human life handling the gun." The trial court denied the motion and rejected appellant's argument of accidental shooting.

I'm going to deny it for one basic reason. This gun and the way it's made is very hard, it appears to the Court, to accidentally discharge. For it to discharge, there's got to be pressure on the back end of the gun as well as on the trigger. It has a dual type safety. I'm going to deny the motion at this time.

At the end of all the evidence, counsel for appellant renewed his motion for directed verdict "on the charge of capital murder" because there was no deliberation and premeditation. Counsel also asked for a verdict of not guilty on the charges of murder in the first degree and murder in the second degree. The trial court again denied the motion, pointing out that it was the court's duty to view the evidence in the light most favorable to the State and that it was the jury's task to weigh the evidence. From the resulting conviction appellant now brings this appeal.

Substantial Evidence

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Peterson v. State, ___ Ark. App. ___, 100 S.W.3d 66 (2003). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When the defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Id. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Burns v. State, 323 Ark. 206, 913 S.W.2d 789 (1996).

Arkansas Code Annotated section 5-10-103(a)(1) (Repl.1997) defines, in pertinent part, the offense of murder in the second degree:

(a) A person commits murder in the second degree if:

(1) He knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life.

A person acts knowingly "with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist." Ark. Code Ann. § 5-2-202(2) (Repl. 1997). A person also acts knowingly "with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result." Id. Moreover, as our supreme court explained in Smith v. State, 337 Ark. 239, 988 S.W.2d 492 (1999), 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. A jury may draw upon its own common knowledge and experience to infer intent from the circumstances. Proctor v. State, 349 Ark. 648, 79 S.W.3d 370 (2002).

Regarding what may constitute an act manifesting extreme indifference to the value of human life, the Arkansas Supreme Court has held that the mere act of pointing a loaded gun at another person in the course of a robbery is a manifestation of extreme indifference to the value of human life. Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996). In Isbell, the supreme court stated that the act of pointing the weapon was sufficient regardless of whether there was an actual intent to shoot. Id. In another case, a defendant pointed a loaded gun at the victim's head during an argument. Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002). That act alone decidedthe issue of whether the defendant acted with extreme indifference to the value of human life in a second-degree murder case. Id.

In the present case, we hold that there was sufficient evidence to support appellant's conviction for second-degree murder. The jury could infer that appellant acted knowingly, manifesting extreme indifference to the value of human life. Testimony indicated that appellant had a gun pointed at Shiree Johnson's trunk as she was leaning over him. Soon thereafter a gunshot was heard. Johnson staggered backwards, shot. The gun then lay on the floor, while appellant rose from his chair. We are unable to see much of a determinative difference between the instant act of pointing a gun at the victim's trunk from the one involved in Price v. State, supra, where the accused pointed a gun at the victim's head.

Appellant makes much of the fact that the incident might have been an accident and points out a number of testimonial circumstances trying to establish that appellant had not had any tensions with the victim. However, even though there is testimony stating that appellant removed a clip from the gun, there is also testimony that some bullets remained in the weapon. The jury heard that testimony and saw the weapon in question. Just as the trial court during its ruling on the first motion for directed verdict, the jury could infer that the particular gun would not likely discharge accidentally. The jury could also infer that the owner of the gun would know whether removing the clip removed all bullets from the gun. Therefore, it appears feasible that appellant acted knowingly with respect to his conduct or the circumstances, or with respect to the result of his conduct.

In addition, the jury heard testimony-the credibility of which was the jury's task to determine-that appellant was upset with Johnson and with the general circumstances of having lost drugs through an alleged theft because of Johnson's decision to have a birthday party at their residence. There was testimony that appellant appeared unhappy after he returned home. Furthermore, the jury could infer the requisite intent and lack of accidental discharge from the fact that appellant had discharged the same weapon prior to the fatal shooting, when one witness heard a gunshot and came out of the kitchen and saw appellant standing with the gun in the air. Thus, the jury was presented with the overall image that appellant was acting in a manner manifesting extreme indifference to the value of human life. Given that shortly afterwards he actually pointed the gun at the victim's trunk, the jury certainly had sufficient reason to infer that he knowingly caused her death under circumstances manifesting extreme indifference to the value of human life.

Affirmed.

Neal and Crabtree, JJ., agree.