{
  "id": 74099,
  "name": "Makybe Shinda HARSHAW v. STATE of Arkansas",
  "name_abbreviation": "Harshaw v. State",
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  "casebody": {
    "judges": [],
    "parties": [
      "Makybe Shinda HARSHAW v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "Wh. \"Dub\" Arnold, Chief Justice.\nAppellant Makybe Shinda Harshaw was previously before us in Harshaw v. State, 344 Ark. 129, 39 S.W.3d 753 (2001), wherein Harshaw appealed the trial court\u2019s refusal to instruct the jury on the lesser-included offense of manslaughter on a second-degree murder charge. On appeal, we held there was sufficient evidence presented which would support a finding that Harshaw formed his belief in the need for the use of deadly force too hastily and without due care, or recklessly. Accordingly, a manslaughter instruction was warranted, and the trial court committed reversible error by failing to allow the proffered manslaughter instruction. On remand and retrial for the second-degree murder charge, Harshaw was again found guilty of second-degree murder. Harshaw, now, brings this appeal, raising the point of whether the trial court erred in denying his motion for directed verdict. We hold that the trial court\u2019s ruling was correct, and, therefore, affirm.\nBackground\nOn remand, Harshaw\u2019s trial began on March 29, 2001, in Pulaski County Circuit Court and a jury sat as the trier of fact. The evidence presented revealed that on or about July 8, 1998, Harshaw was playing cards and drinking beer with friends at a house in southwest Little Rock. At some point during the night, Harshaw left the residence to drive a friend home. Upon returning to the house, he found that Cunningham had arrived at the residence and was standing in the driveway arguing with-a woman identified as \u201cChan.\u201d She was the mother of Cunningham\u2019s child. Harshaw took it upon himself to intervene in the argument between Cunningham and Chan. Cunningham apparendy took offense and told Harshaw that the matter was none of his business. According to Harshaw\u2019s testimony and that of other eyewitnesses, Cunningham then made several statements insinuating that if there was a problem, he would settle it with a gun.\nThereafter, Harshaw testified that he and Cunningham both turned and went to their respective cars. Several eyewitnesses stated that Cunningham reached into his car through the window on the driver\u2019s side of the car. At the same time, Harshaw went to the trunk of his car, opened it, and retrieved a shotgun. As Cunningham came back up from reaching into the car, Harshaw shot him in the chest. Harshaw testified that he was afraid Cunningham was about to pull a pistol from his car and shoot him. As it turned out, Cunningham did not have a gun. Actually, there was testimony from an eyewitness that Cunningham had his empty-hands raised in the air when Harhsaw fired his weapon.\nAt the conclusion of the State\u2019s presentation of its case-in-chief, Harhsaw moved for a directed verdict on the second-degree murder charge on the basis that the State failed to prove Harshaw knowingly caused the victim\u2019s death under circumstances manifesting extreme indifference to the value of human life. The trial court denied Harshaw\u2019s motion for a directed verdict. Harshaw rested without presenting a case-in-chief. Thereafter, defense counsel renewed the directed-verdict motion, which the trial court did not rule on.\nThe jury was instructed on the \u201cknowingly/extreme indifference to the value of human life\u201d definition of second-degree murder and was instructed on the \u201crecklessly\u201d definition of manslaughter, which was consistent with this court\u2019s previous findings. Harshaw was found guilty of second-degree murder, and after a brief sentencing hearing the jury imposed on Harshaw a sentence of nineteen years\u2019 imprisonment. The trial court sentenced Harshaw accordingly. It is from this conviction and sentence this appeal arises.\nMotion for Directed Verdict\nHarshaw\u2019s sole point on appeal is whether the trial court erred in denying Harshaw\u2019s motion for directed verdict because the circumstantial proof of Harshaw\u2019s culpable mental state was such that the jury was left to speculate whether Harshaw caused the victim\u2019s death knowingly or recklessly.\nThe culpable mental state for second-degree murder is that the defendant knowingly caused the victim\u2019s death under circumstances manifesting extreme indifference to the value of human life. Harshaw argues this court should reverse the conviction based upon circumstantial evidence that leaves the fact-finder only to speculation in choosing between two equally reasonable conclusions.\nThe standard of review we apply when reviewing a defendant\u2019s contention that the State failed, at trial, to prove his or her guilt is well established. In a jury trial, a defendant challenges the sufficiency of the State\u2019s proof of his guilt by moving for a directed verdict at the close of the State\u2019s presentation of its casein-chief and again at the close of the presentation of all the evidence. Ark. R. Crim. P. 33.1(a). A motion for directed verdict is a challenge to the sufficiency of the evidence. Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001). A directed-verdict motion should be granted when there is no evidence from which the finder of fact could have found, without resorting to surmise and conjecture, the guilt of the defendant. Nichols v. State, 280 Ark. 173, 655 S.W.2d 450 (1983). When a defendant challenged the sufficiency of the evidence, this court considers only the evidence that supports the guilty verdict. Britt v. State, supra. The court also views the evidence in light most favorable to the State. Britt, supra.\nCircumstantial evidence provides the basis to support a conviction if it is consistent with the defendant\u2019s guilt and inconsistent with any other reasonable conclusion. Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999). Such a determination is a question of fact for the fact-finder to determine. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). The credibility of witnesses is an issue for the jury and not the court. Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001). The trier of fact is free to believe all or part of any witness\u2019s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Phillips, supra. We will disturb the jury\u2019s determination only if the evidence did not meet the required standards, thereby leaving the jury to speculation and conjecture in reaching its verdict. Philips, supra. When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it. Phillips, supra. Additionally, the longstanding rule in the use of circumstantial evidence is that the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused to be substantial, and whether it does is a question for the jury. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000).\nDuring retrial, Harshaw moved for a directed verdict at the closing of the State\u2019s case and the motion was then renewed after the defense rested without presenting a case-in-chief. The trial court denied the motions. Harshaw argues to this court that the State did not present circumstantial evidence that, when he shot the victim at point-blank range with a shotgun, he \u201cknowingly\u201d caused death \u201cunder circumstances manifesting extreme indifference to the value of human life.\u201d Ark. Code Ann. \u00a7 5-10-103(a)(1) (Repl. 1997). The trial court instructed the jury with the \u201crecklessly\u201d definition of manslaughter as a lesser-included offense of second-degree murder. This definition of manslaughter, a Class C felony, states that \u201ca person commits manslaughter if: he recklessly causes the death of another person.\u201d Ark. Code Ann. \u00a7 5-10-104(a)(4) (Repl. 1997).\nHarshaw further argues to this court that when the trial court instructed the jury on the definitions of the culpable mental states of both knowingly and recklessly, it left the jury to speculate whether Harshaw caused the victim\u2019s death knowingly or recklessly. Harshaw contends this is so because the jury could reasonably conclude that Harshaw caused the victim\u2019s death either knowingly under circumstances manifesting extreme indifference to the value of human life or recklessly in that Harhsaw consciously disregarded a substantial and unjustified risk that the victim\u2019s death would result from Harshaw\u2019s conduct.\nHowever, a person\u2019s intent or state of mind at the time of the offense is seldom apparent. Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990). But, the intent can be inferred from the type of weapon used, the manner of use, and the nature, extent, and location of the trauma suffered by the victim. Stanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998).\nIn this case, Harshaw used a shotgun to murder an unarmed man at point-blank range despite the victim\u2019s obvious signal that he posed no threat. The trial court followed this court\u2019s findings in Harshaw v. State, 344 Ark. 129, and instructed the jury on second-degree murder and manslaughter. Under these facts, the jury could, and did, infer that Harshaw knowingly killed his victim with extreme indifference to the value of human life.\nThe jury heard testimony from witnesses presented by the State and determined that Harshaw should be convicted of second-degree murder because he knowingly caused Cunningham\u2019s death under circumstances manifesting extreme indifference to the value of human life. The jury obviously determined the credibility of the witnesses and resolved any questions of conflicting testimony in favor of the State. The jury was not left to speculate on whether Harshaw caused Cunningham\u2019s death knowingly or recklessly. The jury chose to convict on the second-degree murder charge. Therefore, this court should not disturb the jury\u2019s conviction and sentence. It is reasonable that Harshaw \u201cknew\u201d he would cause death to Cunningham when he pulled a shotgun out of the trunk of his car and shot Cunningham at point-blank range. The jury was not left to speculation that Harshaw either knowingly acted with extreme indifference to the value of human life or recklessly and consciously disregarded a substantial and unjustified risk that Cunningham\u2019s death would result from Harshaw\u2019s conduct.\nTherefore, we affirm the trial court\u2019s order denying Harshaw\u2019s motion for directed verdict.\nAffirmed.",
        "type": "majority",
        "author": "Wh. \"Dub\" Arnold, Chief Justice."
      }
    ],
    "attorneys": [
      "William R. Simpson, Jr., Public Defender, and Brent Qualls, Deputy Public Defender; by: Clint Miller, for appellant.",
      "Mark Pryor, Att\u2019y Gen., by: Michael C. Angel, Ass\u2019t Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Makybe Shinda HARSHAW v. STATE of Arkansas\nCR 01-847\n71 S.W.3d 548\nSupreme Court of Arkansas\nOpinion delivered April 4, 2002\nWilliam R. Simpson, Jr., Public Defender, and Brent Qualls, Deputy Public Defender; by: Clint Miller, for appellant.\nMark Pryor, Att\u2019y Gen., by: Michael C. Angel, Ass\u2019t Att\u2019y Gen., for appellee."
  },
  "file_name": "0062-01",
  "first_page_order": 82,
  "last_page_order": 88
}