{ "id": 12025292, "name": "Michael Ryan WEBB v. STATE of Arkansas", "name_abbreviation": "Webb v. State", "decision_date": "1996-12-16", "docket_number": "CR 96-941", "first_page": "878", "last_page": "882", "citations": [ { "type": "official", "cite": "326 Ark. 878" }, { "type": "parallel", "cite": "935 S.W.2d 250" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "317 Ark. 630", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443742 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/317/0630-01" ] }, { "cite": "274 Ark. 29", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1754983 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/274/0029-01" ] }, { "cite": "280 Ark. 253", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1744875 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/280/0253-01" ] }, { "cite": "799 F.2d 1115", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1605624 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/f2d/799/1115-01" ] }, { "cite": "767 F.2d 1052", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 349002 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/f2d/767/1052-01" ] }, { "cite": "842 F.2d 502", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10544207 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/f2d/842/0502-01" ] }, { "cite": "296 Ark. 8", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892697 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/296/0008-01" ] }, { "cite": "892 S.W.2d 511", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1453628 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0537-01" ] }, { "cite": "319 Ark. 602", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453677 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0602-01" ] }, { "cite": "321 Ark. 649", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449518 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/321/0649-01" ] }, { "cite": "324 Ark. 249", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9159552 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/324/0249-01" ] } ], "analysis": { "cardinality": 479, "char_count": 6994, "ocr_confidence": 0.816, "pagerank": { "raw": 1.3964472272134914e-07, "percentile": 0.6438539466972785 }, "sha256": "882a5e1b374e42f43b14d623c392fbf79a845e8f3e1f1064be42f2697743b96e", "simhash": "1:cdf6541e327e54a8", "word_count": 1182 }, "last_updated": "2023-07-14T22:12:03.555215+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Michael Ryan WEBB v. STATE of Arkansas" ], "opinions": [ { "text": "TOM GLAZE, Justice.\nAppellant Michael Webb brings this appeal from his convictions for the first-degree murder of Jason Hatcher and first-degree battery of Timothy McGarity, and his respective sentences for each crime of forty and six years\u2019 imprisonment. This is the third appeal this court has had involving Hatcher\u2019s death and McGarity\u2019s battery. See Carter v. State, 324 Ark. 249, 921 S.W.2d 583 (1996); Jones v. State, 321 Ark. 649, 907 S.W.2d 672 (1995). Webb\u2019s points for reversal are that the trial court erred in denying his directed-verdict motions and in refusing his proffered \u201cmere presence\u201d instruction..\nWe first dispose of Webb\u2019s directed verdict motion issue because it was not properly preserved below. At the close of the State\u2019s case, Webb moved for a directed verdict based on insufficiency of the evidence, which the trial court denied. After the jury was instructed but before it began deliberations, Webb renewed his motion for directed verdict, stating the evidence was insufficient to prove the State\u2019s charges and failed to show he was an accomplice. As we held in Claiborne v. State, 319 Ark. 602, 892 S.W.2d 511 (1995), a motion for directed verdict must be renewed at the end of the \u201cclose of the case,\u201d Ark. R. Crim. P. 33.1, and an attempt to renew such motion after the jury has been charged is not timely.\nWe now turn to Webb\u2019s second point which undoubtedly is the main argument on appeal. He argues that, at the beginning of the trial court\u2019s consideration of the instructions submitted by the parties, he proffered the following \u201cmere presence\u201d instruction:\nDEFENDANT\u2019S REQUESTED INSTRUCTION NO. 2\nMere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make one an accomplice. Therefore, if you find that Ryan Webb was only present while a crime was being committed and did not have a legal duty to act, then he is not an accomplice. Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988).\nThe State objected to Webb\u2019s foregoing instruction, urging it was not an AMCI 2d instruction. The State further contended that AMCI 2d 401 on accomplice liability was a correct statement of the law, and Webb\u2019s \u201cmere presence\u201d instruction simply was unnecessary. The trial court agreed with the State, and denied Webb\u2019s proffer.\nOn appeal, Webb argues that, although AMCI 2d does not contain a \u201cmere presence\u201d instruction, the rule of law contained in his proposed instruction is recognized in the comment to AMCI 2d 401, the accomplice instruction. Citing other jurisdictions, Webb asserts the \u201cmere presence\u201d instruction is commonly given in criminal cases when warranted. See Devitt & Blackmar, \u00a7 16.09; United States v. Avecedo, 842 F.2d 502 (1st Cir. 1988); United States v. Love, 767 F.2d 1052 (4th Cir. 1985); United States v. Keefer, 799 F.2d 1115 (6th Cir. 1986). Webb argues the record warranted the trial court\u2019s giving a \u201cmere presence\u201d instruction and its failure constituted a due process violation. We cannot agree.\nFirst, we disagree with Webb\u2019s assertion that a \u201cmere presence\u201d instruction would have been warranted even if it was included in AMCI2d. Our law is well settled that there is no error in the refusal to give an instruction where there is no evidence to support the giving of that instruction. While we need not discuss all the evidence at Webb\u2019s trial, we do relate that relevant proof necessary to decide the issue. Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983); Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981).\nTimothy McGarity and Clay Cochran departed McGarity\u2019s vehicle on the Harvest Foods\u2019 parking lot in Sherwood, and started a fight with James Gross and Stan Messer. Other vehicles, containing friends of McGarity and Cochran, had followed McGarity\u2019s car onto the lot and those friends congregated around the fight. A blue Honda Accord carrying friends of Gross and Messer came on the lot and stopped in the vicinity of the fight. Gunshots were fired and Jason Hatcher, who had been in a vehicle following McGarity\u2019s vehicle, was fatally wounded. McGarity was also shot and wounded in the leg. Witnesses identified Chad Jones, an occupant of the Honda as having a handgun. Another witness saw Gross shooting a gun. No one identified Webb as being present on the parking lot.\nThe State\u2019s evidence connecting Webb to the shooting centered on the testimony of Monica Parker and Jessica Fleming, who testified that they were visiting at a friend\u2019s apartment on the night Hatcher had been shot. Webb, Jones, Jason Carter, and James Gross entered the apartment and were talking about a fight they just had. They said Webb was carrying a long-barreled gun and when he sat down in a recliner he laid the gun down beside him. Parker and Fleming stated Webb said something to the effect that \u201cI shot someone\u201d or \u201cI think I got one.\u201d When Webb left with his friends, Parker and Fleming said he took the gun with him. Webb\u2019s apartment was searched the next day by officers, who found a .30 caliber carbine. Webb concedes that expert testimony linked the .30 caliber casings found at the crime scene to Webb\u2019s carbine.\nIn sum, Webb fails to point to any evidence that showed he was merely present at the crime scene when Hatcher and McGarity were shot. Instead, the only evidence presented showed he, indeed, had been present at Harvest Foods\u2019 parking lot at the time of the shootings, but in being present, he shot someone and afterwards was overheard talking about it.\nIn these circumstances, we conclude Webb would not have been entitled to a \u201cmere presence\u201d instruction even if it had been in AMCI2d. In addition, we emphasize, too, that our law is well settled that, when a trial court determines that the jury be instructed on an issue, the model criminal instructions shall be used unless the trial court concludes it does not accurately state the law. Moore v. State, 317 Ark. 630, 882 S.W.2d 667 (1994). Here, AMCI2d 401 on accomplice liability was clearly applicable to the facts of this case, and required no further explanation of the law.\nFrom the record, we fail to find where Webb raised a due process issue, but that failure is insignificant since we hold the evidence is insufficient to support a \u201cmere presence\u201d instruction, even it it was an AMCI2d instruction.\nWe note that Webb also argued that Parker\u2019s and Fleming\u2019s testimonies were unreliable because, on cross examination, they acknowledged they may have told an officer that Webb said, \u201cYeah, we shot some people.\u201d Whether Webb had been overheard to say \u201cI\u201d or \u201cwe\" does little to help his \u201cmere presence\u201d argument and only underscores he and someone else were implicated in the shootings.", "type": "majority", "author": "TOM GLAZE, Justice." } ], "attorneys": [ "Dover & Dixon, by: James R. Rhodes, III, and Jack T Lassiter, for appellant.", "Winston Bryant, Att\u2019y Gen., by: David R. Raupp, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Michael Ryan WEBB v. STATE of Arkansas\nCR 96-941\n935 S.W.2d 250\nSupreme Court of Arkansas\nOpinion delivered December 16, 1996\nDover & Dixon, by: James R. Rhodes, III, and Jack T Lassiter, for appellant.\nWinston Bryant, Att\u2019y Gen., by: David R. Raupp, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0878-01", "first_page_order": 880, "last_page_order": 884 }