dissent">Andree Layton Roaf, Judge,

dissenting. I would reverse and dismiss this case based upon the insufficiency of the State’s evidence that there was an intent to commit capital murder, that is to cause the death of a law enforcement officer, or for that matter, anyone at all.

This case boils down to whether there was sufficient evidence, circumstantial or otherwise, to support the conviction of attempted capital murder of a police officer, pursuant to Ark. Code Ann. § 5-10-101(3) (Repl. 1997) and § 5-3-201 (Repl. 1997), specifically, whether there was an attempt to kill the officer. Booker Simmons argues on appeal that the officer’s testimony that, while he was on foot, he merely heard a shot and saw a flash from the passenger window of the vehicle in which Simmons was riding, was not sufficient evidence of such intent. I can find no precedent supporting a conviction on such flimsy evidence where no one has actually been shot. There was no evidence of the direction in which the gun was aimed, or testimony from the officer that the shot came anywhere near him or even in his direction. Indeed the officer never saw the gun at all, much less the direction in which it was pointed. It is not reasonable to infer from the circumstances of this case that there was an attempt or intent to kill or even to shoot the officer. Even considering the way in which the vehicle was driven, the flight from the scene after the vehicle was riddled with a clip full of bullets by the officer, and the fact that a gun was discarded during the flight, the trier of fact would need to resort to speculation and conjecture to conclude that Simmons was attempting to kill as opposed to creating a distraction or issuing a threat by merely firing a gun from the window of the vehicle. See Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990) (affirming conviction and finding sufficient evidence of attempted murder where appellant pointed gun at officer, fired once, missed, and fired two more shots at officer while he was on the ground); Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990) (affirming conviction and finding sufficient evidence where all the officers testified that they saw appellant and his accomplice point their guns at them and heard shots being fired).

It may well be that the State was overzealous in its prosecution of this case because a police officer was involved, or because one of the officer’s barrage of gun shots fired at Simmons’s fleeing vehicle entered a nearby house and grazed a child on the arm. Be that as it may, while the State may have had a case of unlawful discharge of a firearm from a vehicle, Ark. Code Ann. § 5-74-107(b)(1) (Repl. 1997), what it did not have was a case of attempted murder. This court has once again lowered the bar in a case that turns on a sufficiency analysis, and future similar prosecutions can, and likely will be based upon no evidence whatsoever of the requisite intent to kill.

Neal, J., joins.

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