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2016 Ark. App. 28
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-15-492
Opinion Delivered January 20, 2016
DEONTAE FULTON
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
FOURTH DIVISION
V. [NO. CR-2013-2648]
HONORABLE HERBERT WRIGHT,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
M. MICHAEL KINARD, Judge
Deontae Fulton was charged with first-degree murder in connection with the June
2013 death of Juan Reyes. After a bench trial, he was convicted of the charge and was
sentenced to thirty-five years in the Arkansas Department of Correction. On appeal, he
contends that insufficient evidence was presented to support the finding of guilt. We affirm.
As is pertinent here, a person commits first-degree murder if, with the purpose of
causing the death of another person, he causes the death of another person. Ark. Code Ann.
§ 5-10-102(a)(2) (Repl. 2013). When the sufficiency of the evidence is challenged on appeal
from a criminal conviction, we view the evidence and all reasonable inferences deducible
therefrom in the light most favorable to the State, considering only that proof that tends to
support the finding of guilt. Robinson v. State,
2010 Ark. App. 772. We will affirm if
substantial evidence exists to support the conviction.
Id. Substantial evidence is that which
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is of sufficient force and character that it will, with reasonable certainty, compel a conclusion
one way or the other without requiring resort to speculation or conjecture.
Id.
A brief recitation of the evidence will suffice. According to witness Atarius Bishop,
appellant was a passenger in a car driven by Bishop on the day in question. After riding
around and smoking marijuana, the two stopped at the home of Morisha McCoy. Ms.
McCoy’s boyfriend, the victim Juan Reyes, was in the front yard drinking a beer. The three
men had known one another for many years, and they engaged in a conversation. Both
Bishop and appellant had previously had a sexual relationship with Ms. McCoy. Appellant
was jealous, and he began crudely describing his sexual relationship with Ms. McCoy. He
asked Reyes if he wanted to fight, but Reyes declined. Eventually, appellant got out of the
car and knocked the beer from Reyes’s hand. Bishop then got out of the car and started
toward the other side. At that point, he heard a gunshot. Reyes fell, and appellant was
holding a pistol. Appellant and Bishop got back in the vehicle and left. Bishop denied any
involvement in the crime and denied knowing that appellant intended to kill Reyes.
According to Dr. Adam Craig of the Arkansas State Crime Laboratory, Reyes was
shot in the head at a slightly downward angle from two to three feet away. The wound
severed the spinal cord from the brain and killed Reyes instantly.
Appellant first contends that the evidence is insufficient to support his conviction
because Bishop “is someone entirely unworthy of belief.” He argues that it is equally likely
that Bishop was the real killer. Appellant specifically points to the testimony of another
witness who stated that she had overheard Bishop admit to having shot and killed Reyes.
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Appellant’s motion to dismiss was based on the credibility of the witnesses. However,
it is the sole province of the factfinder to determine credibility and to decide the weight and
value of witness testimony. Robinson v. State, supra. This court will not pass upon the
credibility of a witness and has no right to disregard testimony once the factfinder has given
it credence, unless the testimony is inherently improbable, physically impossible, or so clearly
unbelievable that reasonable minds could not differ thereon. Id. From our review of the
record, we conclude that sufficient evidence was presented that appellant shot and killed the
victim.
Appellant next contends that his conviction must be reversed because Bishop was an
accomplice whose uncorroborated testimony was insufficient to support the finding of guilt.
See Ark. Code Ann. § 16-93-111(e)(1) (Supp. 2015). We conclude that this issue was not
preserved for appeal, and we do not address it on the merits.
Rule 33.1(c) of the Arkansas Rules of Criminal Procedure provides that the failure
of a defendant to challenge the sufficiency of the evidence at the times and in the manner
prescribed in the rule will constitute a waiver of any question pertaining to the sufficiency
of the evidence to support the judgment. A motion to dismiss must specify the respect in
which the evidence is deficient, id., and one cannot change the grounds for his motion on
appeal. Armstrong v. State,
2011 Ark. App. 530. The rule applies to an accomplice-
corroboration argument. Id.; Bryant v. State,
2011 Ark. App. 348,
384 S.W.3d 46. Here,
appellant never argued to the trial court that Bishop was an accomplice whose testimony had
to be corroborated; his motion to dismiss was limited to an argument about witness
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credibility and reasonable doubt. Therefore, appellant’s contention was waived for purposes
of appeal.
Affirmed.
VIRDEN and GLOVER , JJ., agree.
Sherwood & Merritt, PLLC, by: Sara F. Merritt, for apellant.
Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., and Rafael Gallaher, Law
Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission to the
Bar of the Supreme Court under the Supervision of Darnisa Evans Johnson, Deputy Att’y Gen.,
for appellee.
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