Griffis v. State , 465 S.W.3d 431 ( 2015 )

Cite as 2015 Ark. App. 217
ARKANSAS COURT OF APPEALS
DIVISION IV
CR-13-917
No.
Opinion Delivered April 1, 2015
OMAR GRIFFIS APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT,
FOURTH DIVISION
V. [NO. CR-12-2714]
STATE OF ARKANSAS HONORABLE HERBERT WRIGHT,
APPELLEE JUDGE
AFFIRMED
WAYMOND M. BROWN, Judge
A Pulaski County jury found appellant Omar Griffis guilty of first-degree murder, and
two counts of attempted first-degree murder. He was sentenced, with an enhancement for
committing a felony with a firearm, to an aggregate term of 540 months’ imprisonment. On
appeal, appellant argues that the evidence was insufficient to support his convictions; that the
trial court committed reversible error by preventing him from introducing direct evidence of
his alleged accomplice’s criminal history; and that the court committed reversible error by
granting the State’s motion in limine to prevent him from introducing circumstantial evidence
of third-party liability. We affirm.1
1
This is the second time this case has been before us. We originally ordered
supplementation of the record and rebriefing. Griffis v. State, 2014 Ark. App. 571.
Cite as 2015 Ark. App. 217
Appellant’s first argument is that the evidence was insufficient to support his
convictions. More specifically, he contends that there was no “in-court evidence that he is
the person who shot Terry London or the other shooting victims.” He also argues that “the
circumstantial evidence introduced at trial was not sufficient to eliminate theories of
culpability consistent with [his] innocence.”
Appellant moved for a directed verdict at the conclusion of the State’s case, stating,
“There has been no credible evidence that Omar Griffis was in possession of a gun, and no
scientific evidence to corroborate any of the other statements.” He renewed his motion
without putting on a defense. A motion for a directed verdict is a challenge to the sufficiency
of the evidence.2 The test for determining the sufficiency of the evidence is whether the
verdict is supported by substantial evidence, which is evidence of such certainty and precision
to compel a conclusion one way or another.3 We review the evidence in the light most
favorable to the appellee, considering only the testimony that tends to support the verdict.4
Rule 33.1(a) of the Arkansas Rules of Criminal Procedure requires a motion for
directed verdict to state the specific grounds therefor.5 A party is bound by the scope of the
arguments made at trial and may not enlarge or change those grounds on appeal.6 Here,
2
Farrelly v. State, 70 Ark. App. 158, 15 S.W.3d 699 (2000).
3
Id.
4
Id.
5
See also Williams v. State, 375 Ark. 132, 289 S.W.3d 97 (2008).
6
Id.
2
Cite as 2015 Ark. App. 217
appellant’s directed-verdict motion was based on his possession of a firearm. Consequently,
the only issue before us on appeal is the evidence of appellant being in possession of a gun.
Randy Goins testified that he was a visitor at 824 Allis Street on July 17, 2012, when
a green Cadillac pulled in front of the residence. He stated that appellant got out of the back
seat and pointed a gun to Brandon Reed’s head. According to Goins, Reed hit appellant’s
hand, but the gun did not go off at that time. He stated that appellant began to shoot toward
the carport. Richard Swain testified that he was home at 824 Allis Street on July 17, 2012.
He said that Reed, Terry London, and Goins were also at the residence on that date.
According to Swain, appellant came up in a Cadillac, got out of the back passenger door, and
just started shooting. Swain stated that he was shot in the leg, left shoulder, and left thigh.
Detective Tommy Hudson testified that he worked a homicide at 824 Allis Street the summer
of 2012. He said that London was found deceased in the carport from a gunshot wound to
the head. He stated that he subsequently developed appellant as the suspect.
Here, two eyewitnesses testified in court that appellant was the shooter, and their
credibility was a matter for the jury to assess.7 We hold that the testimony identifying
appellant as the shooter, thereby placing a gun in his hands on the date in question, is
sufficient evidence to support his convictions.
Appellant’s second argument is that the trial court erred by preventing him from
presenting the criminal history of his former codefendant, Marcus Simmons. According to
appellant, this prevented him from presenting a full and complete defense that he was not the
7
Green v. State, 2013 Ark. 497, 430 S.W.3d 729.
3
Cite as 2015 Ark. App. 217
guilty party. The decision to admit or exclude evidence is within the sound discretion of the
trial court, and we will not reverse that decision absent a manifest abuse of discretion.8
The State objected to appellant’s reference to Simmons’s criminal history during
appellant’s opening statements. When the State objected, appellant offered no reason why this
evidence was necessary or relevant. Therefore, he is making this argument that he was
prevented from presenting a full and complete defense for the first time on appeal. We will
not consider issues on which the trial court has not had the opportunity to rule which are
raised for the first time on appeal.9
Additionally, appellant failed to proffer the evidence that he contends was improperly
excluded. To challenge a ruling excluding evidence, an appellant must proffer the excluded
evidence so the appellate court can review the decision, unless the substance of the evidence
is apparent from the context.10 Appellant’s failure to proffer the evidence he believed should
have been introduced prevents our review.
Appellant’s third argument is that the trial court erred in granting the State’s motion
in limine to prevent him from introducing circumstantial evidence of third-party liability.11
8
Boykins v. State, 2013 Ark. App. 463.
9
Biggs v. State, 2014 Ark. 114 (per curiam).
10
Brown v. State, 2012 Ark. 399, 424 S.W.3d 288.
11
Goins was in possession of a nine millimeter gun, which he had a permit to carry,
while he was at the residence on Allis Street. He testified that once appellant began shooting,
he fired two or three shots at appellant. Goins subsequently ran from the scene and was
stopped about a block away. His gun and magazine were secured by police. His vehicle was
towed and searched, and the search turned up another weapon and other magazines. All of
the items were tested against the spent shells left at the crime scene and none were a match.
4
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According to appellant, he should have been allowed to introduce evidence that Goins had
an assault weapon in his car parked across the street from the crime scene. Appellant contends
that this information would have allowed the jury to decide whether Goins had the “intent
to shoot or cause the death of ‘someone.’” Furthermore, appellant argues that because the
evidence “presented at [his] trial was insufficient to eliminate Randy Goins as the person who
accidently shot the victims in this case, the trial court abused its discretion in not allowing
[him] to introduce circumstantial evidence related to Randy Goins’[s] ‘third party guilt.’”
Appellant contends that Goins’s possession of multiple weapons was relevant under
Zinger v. State.12 Under Zinger, evidence of a third party’s guilt is admissible only if there is
direct or circumstantial evidence linking the third person to the actual perpetration of the
crime. Evidence which speaks solely to motive or opportunity is insufficient to create a
reasonable doubt of the defendant’s guilt.13 Appellant did not make this Zinger argument to
the trial court. Therefore, it is not preserved for appeal.
Even if the argument was preserved, we would affirm the trial court’s decision to grant
the State’s motion to exclude the evidence. The excluded evidence did nothing more than
attempt to offer a motive or opportunity for a third party to commit the murder. There was
nothing in the excluded evidence that could have implicated Goins, either directly or
Initially thought to be a suspect, Goins became a witness. The murder weapon was never
found.
12
313 Ark. 70, 852 S.W.2d 320 (1993).
13
Id.
5
Cite as 2015 Ark. App. 217
circumstantially, in the murder of London or the shooting of the other two victims.
Affirmed.
GRUBER and WHITEAKER, JJ., agree.
Danny R. Williams, for appellant.
Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
6