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                SUPREME COURT OF ARKANSAS
                                       No.   CR-16-125

ARTHUR L. HICKS, JR.                               Opinion Delivered   September 28, 2017
                                APPELLANT
                                                   APPEAL FROM THE ARKANSAS
V.                                                 COUNTY CIRCUIT COURT,
                                                   NORTHERN DIVISION
                                                   [NO. CR-2014-076]
STATE OF ARKANSAS
                                  APPELLEE         HONORABLE DAVID G. HENRY,
                                                   JUDGE

                                                   AFFIRMED.


                             KAREN R. BAKER, Associate Justice


       On July 2, 2015, Arthur Hicks, Jr., was convicted of capital murder by an Arkansas

County jury. Pursuant to Ark. Code Ann. section 5-10-101(c)(1)(B)(2)(Repl. 2013), the

parties agreed to allow the circuit court to sentence Hicks. The circuit court sentenced Hicks

to life imprisonment with the possibility of parole in 28 years and an additional seven-years

incarceration for the use of a firearm in the crime. Hicks timely appealed to this court. On

April 7, 2017, we ordered rebriefing because the Attorney General failed to certify its review

pursuant to Rule 4-3(i) of the Arkansas Rules of the Supreme Court. Subsequent to this

order, the parties have filed additional briefs and the case is ripe for review.

       From his conviction and sentence, Hicks presents two issues on appeal: (1) the circuit

court erred in permitting hearsay testimony of the emergency medical technician under a

hearsay exception and (2) the circuit court erred in denying Hicks’s motion for directed
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verdict because the evidence was not sufficient to sustain the conviction for capital murder.

       On July 30, 2014, Hicks was charged with one count of capital murder in the July 22,

2014 death of Daniel Ruffin. The State’s theory at trial was that Hicks, in the course of

committing or attempting to commit a robbery, caused Ruffin’s death. Vera Strange, Ruffin’s

mother, testified that she, her husband, and Ruffin lived at 1311 South Maple Street in

Stuttgart. Ruffin’s routine was to come home from his job at Wal-Mart, put his headphones

on, and walk his dog, Lazarus, on the same path on the streets around their home every day.

Ruffin’s walks included passing the business that his mother and her husband owned, S & W

Produce, which was less than a block from their home. Strange further testified that on the

day of the crime, Ruffin left their home after work with his headphones on to walk his dog.

Strange testified that after Ruffin left to go on his walk, she went to visit a friend at the

hospital. While at the hospital, Strange received a phone call that Ruffin had been shot.

       Radek “Eric” Sanek, Ruffin’s neighbor, testified that he lived at 1304 South Maple

Street, and on the day of the crime passed three boys walking south on Maple as he drove

home between 4:30 and 5:00 p.m. Sanek identified Hicks as one of the boys he passed.

Sanek testified that he was unloading cedar wood from his car and heard a gunshot. He

further testified that he looked down the street and saw Ruffin holding his chest running

toward his home screaming “Oh my God. Oh my God.” Sanek and his wife ran to help

Ruffin and found him bleeding, holding his chest, and lying underneath his truck. Sanek

testified that he called 911 as his wife talked to Ruffin and tried to keep him calm until the

paramedics arrived.


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       Next, Stuttgart Fire Department Fireman and Emergency Medical Technician, David

Payan, testified that on the day of the crime, he responded to a call that a man who had been

shot and was found underneath a pickup truck at 1311 Maple Street. Payan testified that

when he arrived, Ruffin was halfway under the truck with a red stain on his shirt, and Payan

could see a gunshot wound. Payan testified that he pulled Ruffin out from underneath the

truck, cut his shirt off, and began to administer medical assistance to the gunshot wound that

had gone through Ruffin’s chest and exited from his back, known as a “through and

through” wound. As to Ruffin’s condition, Payan testified that “he was alert and oriented

. . . he looked scared,” and was alert enough to speak to Payan. Over Hicks’s objection,

Payan testified that while administering medical attention, he asked Ruffin about the

shooting:

       PAYAN :       I was . . . trying to stop the bleeding and [Ruffin] told me that he was
                     walking along the road and three - - three guys came up and asked him
                     what he had in his pockets. And he said, “Nothing but a cell phone.”

                     And one of them said to, “Give it to me.”

                     And [Ruffin] said, “No.”

                     And that’s when one guy shot [Ruffin].

       Payan also testified that upon examination, he was aware that Ruffin’s left lung had

no sounds at all and that Ruffin’s condition was serious.

       Kiasean Casey testified that on the day of the crime, around 4:00 p.m., he met Hicks

and Kendall Smith at S & W Produce. Casey testified that he was on the phone and was

walking approximately half a block in front of Hicks and Smith. Casey testified that as the


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boys walked down Maple Street, he passed Ruffin. Casey further testified that after he passed

Ruffin, he heard a gunshot go off. After he heard the gunshot, he turned and saw Ruffin

and the blood all over his shirt. Casey testified that he stood in shock for approximately 45

seconds and then he ran to his uncle’s house. Casey also testified that after he heard the

gunshot, he saw Hicks putting the gun in his pocket as Hicks ran off.

       Kendall Smith testified that on the day of the incident, he met up with Hicks and

Casey at S & W Produce. Smith testified the boys left on foot, he was side by side with

Casey, and Hicks was a few feet behind them. Smith testified that he heard Hicks say, “I’m

going to hit him,” as Ruffin was walking up the street toward the boys with his dog. Smith

further testified that after he heard Hicks say, “I’m going to hit him,” he heard a gun cock

“like click/clack.” Smith testified that he turned toward the noise of the gun and saw Hicks

raising his hand with the gun, pointing it at Ruffin “like he was going to rob him.” Further,

Smith testified that he heard the following conversation between Hicks and Ruffin:

       HICKS:        What’s in your pockets?

       RUFFIN:       A phone.

       HICKS:        I need that.

       RUFFIN:       Is that a BB gun? Is the gun fake?

       HICKS:        No, it ain’t fake. Do you want to see what the bullet feel like?

Smith testified that after Hicks said the gun was not a fake, Hicks shot Ruffin at point-blank

range. Smith testified that he took off running, and before he got home he heard the sirens

coming toward the area.


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       Finally, Hicks testified in his own defense. Hicks testified that he did not have a

conversation with Ruffin regarding the gun and did not realize that the gun was loaded.

Hicks further testified that the gun went off accidentally, and after the gun fired he walked

away not realizing that Ruffin had been shot. In Hicks’s statement to the police immediately

after the shooting he stated that he had shot Ruffin “for no reason.” Hicks denied that he

attempted to rob Ruffin.

       Based on the above-stated facts, Hicks was convicted of capital murder and sentenced

as described above. This appeal followed.

                                       Points on Appeal

                            I. Sufficiency of the Evidence - Robbery

       We now turn to Hicks’s two points on appeal. Although Hicks challenges the

sufficiency of the evidence in his second point on appeal, due to double-jeopardy concerns,

we first address his challenge to the sufficiency of the evidence supporting his conviction.

Bowker v. State, 363 Ark. 345, 352, 214 S.W.3d 243, 247 (2005). Hicks asserts that the circuit

court erred in denying his motion for directed verdict, alleging that the evidence did not

support his conviction for the murder of another person in the commission or attempted

commission of a robbery. Hicks further contends that the State’s proof of culpable mental

state was insufficient to prove that he caused the death under circumstances manifesting

extreme indifference to the value of human life.

       We treat a motion for a directed verdict as a challenge to the sufficiency of the

evidence. Whitt v. State, 365 Ark. 580, 232 S.W.3d 459 (2006). In reviewing a challenge


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to the sufficiency of the evidence, this court assesses the evidence in the light most favorable

to the State and considers only the evidence that supports the verdict. Tillman v. State, 364

Ark. 143, 217 S.W.3d 773 (2005). This court will affirm a judgment of conviction if

substantial evidence exists to support it. Id. Substantial evidence is evidence that is of

sufficient force and character that it will, with reasonable certainty, compel a conclusion one

way or the other, without resorting to speculation or conjecture. Id. We need consider only

that testimony that supports the verdict of guilty. Id. Further, circumstantial evidence may

provide a basis to support a conviction, but it must be consistent with the defendant’s guilt

and inconsistent with any other reasonable conclusion. Id. Whether the evidence excludes

every other reasonable hypothesis is left to the jury to decide. Id. Finally, the credibility of

witnesses is an issue for the jury and not the court. Id. The trier of fact is free to believe all

or part of any witness’s testimony and may resolve questions of conflicting testimony and

inconsistent evidence. Id.

       Additionally, when construing a statute, we must construe the statute just as it reads,

giving the words their ordinary and usually accepted meaning in common language. Thompson

v. State, 2014 Ark. 413, at 5, 464 S.W.3d 111, 114.

       Hicks was convicted of capital murder under Ark. Code Ann. § 5-10-101(a), which

states in pertinent part:

       (a) A person commits capital murder if:

               (1) Acting alone or with one (1) or more other persons:

                       (A) The person commits or attempts to commit:


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                     ...

                             (v) Robbery, § 5-12-102;

                             . . . and

                             In the course of and in furtherance of the felony or in immediate
                             flight from the felony, the person . . . causes the death of a
                             person under circumstances manifesting extreme indifference to
                             the value of human life[.]


       Next, “robbery” is defined in Ark. Code Ann. § 5-12-102:

              (a) A person commits robbery if, with the purpose of committing a felony or
       misdemeanor theft or resisting apprehension immediately after committing a felony or
       misdemeanor theft, the person employs or threatens to immediately employ physical
       force upon another person.


       Finally, the underlying felony is an essential element of a capital-felony murder charge.

Flowers v. State, 342 Ark. 45, 49, 25 S.W.3d 422, 425 (2000). To prove capital-felony

murder, the State must first prove the felony. Id. Here, the prosecution needed to prove only

that Hicks attempted to commit robbery. Id., Ark. Code Ann. § 5-10-101(a)(1); Novak v.

State, 287 Ark. 271, 698 S.W.2d 499 (1985). An attempted robbery is established by proof

that the defendant purposely engaged in conduct that constituted a substantial step in a course

of conduct intended to culminate in the commission of a robbery. Ark. Code Ann. § 5-3-

201(a)(2).

       With these standards in mind, we turn to Hicks’s challenge to the sufficiency of the

evidence supporting his conviction. Hicks contends that the State failed to prove he

committed or attempted to commit robbery but the gun went off accidentally. Turning to


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the facts of Hicks’s case, we must review the testimony presented.

       Sanek testified that on the day of the crime, he passed the three boys walking south on

Maple as he was driving home around 4:30 - 5 :00 p.m. and identified Hicks as one of the

boys that he passed. Sanek further testified that he was unloading his car and heard a gunshot.

He testified that he looked down the street and saw Ruffin holding his chest, running toward

his home, screaming, “Oh my God. Oh my God.”

       Smith testified that as the men walked together, Smith heard Hicks say, “I’m going

to hit him,” as Ruffin was walking up the street towards the men. Smith further testified that

after he heard Hicks say “I’m going to hit him,” he heard a gun cock, “like click/clack.”

Smith testified that he turned toward the noise of the gun and saw Hicks raising his hand

with the gun, pointing it at Ruffin “like he was going to rob him.” Further, Smith testified

that he heard the following conversation between Hicks and Ruffin:

       HICKS:        What’s in your pockets?

       RUFFIN:       A phone.

       HICKS:        I need that.

       RUFFIN:       Is that a BB gun? Is the gun fake?

       HICKS:        No, it ain’t fake. Do you want to see what the bullet feel like?

Smith testified after he heard Hicks state the gun was not fake, Hicks shot Ruffin at point

blank range.

       Next, Casey testified that while walking, after he passed Ruffin, he heard a gunshot

go off. After he heard the gunshot, he turned and saw Ruffin and the blood all over his shirt


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and saw Hicks putting the gun in Hicks’s pocket as Hicks ran off.

       Payan, EMT, testified that he responded to the call where Ruffin had been shot and

found Ruffin bleeding underneath a pickup truck at 1311 Maple Street. Over Hicks’s

objection, Payan testified that while administering medical attention, he asked Ruffin about

the shooting:

       PAYAN :       I was . . . trying to stop the bleeding and [Ruffin] told me that he was
                     walking along the road and three - - three guys came up and asked him
                     what he had in his pockets. And he said, “Nothing but a cell phone.”

                     And one of them said to, “Give it to me.”

                     And [Ruffin] said, “No.”

                     And that’s when one guy shot [Ruffin].

       Upon review, from the testimony set out above, we conclude that the State presented

substantial evidence that Hicks purposely engaged in conduct that constituted a substantial

step in a course of conduct intended to culminate in the commission of a robbery. Specifically,

there was evidence that Hicks intended to rob Ruffin and took a substantial step in that

direction when he approached Ruffin with a weapon, demanded his phone, and pointed the

weapon at Ruffin at point-blank range. Here, the record demonstrates that there was

sufficient evidence for the jury to find that Hicks committed the underlying felony of

attempted robbery. Accordingly, in viewing the testimony in the light most favorable to the

jury’s verdict and that which is consistent with guilt, we hold that substantial evidence

supports the jury’s conclusion that Hicks committed capital murder.

       Hicks next contends that the State’s proof of culpable mental state was insufficient to


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prove that Hicks caused Ruffin’s death under circumstances manifesting extreme indifference

to the value of human life. However, we do not reach the merits of this claim because Hicks

did not challenge the State’s proof of that element at trial, and the claim is therefore not

preserved for review. We do not address arguments that are raised for the first time on appeal.

Buford v. State, 368 Ark. 87, 243 S.W.3d 300 (2006); Hinkston v. State, 340 Ark. 530, 10

S.W.3d 906 (2000). Likewise, parties cannot change the grounds for an objection on appeal,

but are bound by the scope and nature of their objections as presented at trial. Id; Tavron v.

State, 372 Ark. 229, 231, 273 S.W.3d 501, 502 (2008). Accordingly, we do not find error

and affirm the circuit court on Hicks’s challenge to the sufficiency of the evidence.

                                    II. Hearsay Testimony

       For his second point on appeal, Hicks asserts that the circuit court erred by allowing

the State to introduce a hearsay statement by EMT David Payan regarding a statement Ruffin

had made to him while receiving medical treatment. At trial, Hicks asserted that the

statement was inadmissible hearsay and did not fall within one of the exceptions to hearsay:

dying declaration, excited utterance or present sense impression. The circuit court allowed

the testimony as “an exemption to the hearsay rule.”

       The State responds that the circuit court properly allowed the statement and this court

should affirm the circuit court because the statement was admissible either as an excited

utterance or as a dying declaration. The State further responds that the statement was

admissible under “other hearsay exceptions.”

       Here, the statement Hicks contends the circuit court erroneously admitted occurred


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during Payan’s testimony about what the victim told him at the crime scene. Payan testified

that he had responded to a 911 call and was administering medical care to Ruffin. Payan

testified that Ruffin had suffered a gunshot wound that was through Ruffin’s chest and exited

out his back. As to Ruffin’s condition Payan testified that “he was alert and oriented . . . he

looked scared,” and he was alert enough to speak to Payan. Over Hicks’s objection, Payan

testified that while administering medical attention, he asked Ruffin about the shooting:

       PAYAN:        I was . . . trying to stop the bleeding and [Ruffin] told me that he was
                     walking along the road and three - - three guys came up and asked him
                     what he had in his pockets. And he said, “Nothing but a cell phone.”

                     And one of them said to, “Give it to me.”

                     And he said, “No.”

                     And that’s when one guy shot him.

       Payan also testified that upon examination, he was aware that Ruffin’s left lung had no

sounds at all and that Ruffin’s condition was serious.

       In reviewing evidentiary issues on appeal “the decision to admit or exclude evidence

is within the sound discretion of the circuit court, and we will not reverse a circuit court’s

decision regarding the admission of evidence absent a manifest abuse of discretion. Morris v.

State, 358 Ark. 455, 193 S.W.3d 243 (2004); Pugh v. State, 351 Ark. 5, 89 S.W.3d 909 (2002).

Moreover, we will not reverse absent a showing of prejudice. Id.

       With regard to hearsay statements, Rule 801 of the Arkansas Rules of Evidence defines

“Hearsay” as a statement, other than one made by the declarant while testifying at the trial

or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay is


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inadmissible except as provided by law or by the rules of evidence. Ark. R. Evid. 802 (2017).

Arkansas Rule of Evidence 803(2) provides in pertinent part:

       The following are not excluded by the hearsay rule, even though the declarant is
       available as a witness:

       (2) Excited Utterance. A statement relating to a startling event or condition made
       while the declarant was under the stress of excitement caused by the event or
       condition.

       In analyzing Rule 803(2),we have recognized that there are several factors to consider

when determining whether a statement falls under this exception: the lapse of time, the age

of the declarant, the physical and mental condition of the declarant, the characteristics of the

event, and the subject matter of the statement. Davis v. State, 362 Ark. 34, 207 S.W.3d 474

(2005); Flores v. State, 348 Ark. 28, 69 S.W.3d 864 (2002); Moore v. State, 317 Ark. 630, 882

S.W.2d 667 (1994) (adopting these factors from the Eighth Circuit’s decision in United States

v. Iron Shell, 633 F.2d 77 (8th Cir.1980)). For the exception to apply, there must be an event

which excites the declarant. Flores, 348 Ark. 28, 69 S.W.3d 864. In addition, in order “to

find that 803(2) applies, it must appear that the declarant’s condition at the time was such that

the statement was spontaneous, excited or impulsive rather than the product of reflection and

deliberation.” Peterson v. State, 349 Ark. 195, 199, 76 S.W.3d 845, 847 (2002) (quoting Fudge

v. State, 341 Ark. 759, 769, 20 S.W.3d 315, 320 (2000)). The statements must be uttered

during the period of excitement and must express the declarant’s reaction to the event. Moore,

317 Ark. 630, 882 S.W.2d 667. It is for the circuit court to determine whether the statement

was made under the stress of excitement. Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947

(1994).

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       Here, Ruffin made the statement within minutes of being shot at point-blank range

while Payan was rendering medical attention to Ruffin. The record demonstrates that Ruffin

was bleeding and that he had crawled under his truck. Ruffin’s statement was in reaction to

the shooting, and Payan testified that Ruffin was alert and oriented, but scared. Based on the

circumstances in this case, the statement was made in response to the shooting and was

therefore admissible under Rule 802 as an excited utterance.

       In this case, Ruffin’s statement to Payan was made after Ruffin had been shot at point-

blank range “through and through.” Ruffin knew he was bleeding, he was hiding underneath

his truck, and he was not trying to move. The evidence showed that Ruffin’s condition was

grave and that he was aware that his injuries were serious. Based on the facts of this case, we

cannot say that the circuit court abused its discretion in determining that Ruffin’s statement

was admissible. Accordingly, we affirm the circuit court’s ruling.

       In compliance with Arkansas Supreme Court Rule 4-3(i), the record has been

examined for all objections, motions, and requests made by either party that were decided

adversely to Hicks, and no prejudicial error has been found.

       Affirmed.

       HART, J., concurs.

       JOSEPHINE LINKER HART, Justice, concurring. I agree that this case should be

affirmed. However, in my view, the victim’s hearsay statement made to Stuttgart fire

department EMT David Payan was admissible under a different hearsay exception: Rule

803(4) of the Arkansas Rules of Evidence, Statements for Purposes of Medical Diagnosis or


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Treatment. The rule states:

       The following are not excluded by the hearsay rule, even though the declarant is
       available as a witness:

       ...

       (4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for
       purposes of medical diagnosis or treatment and describing medical history, or past or
       present symptoms, pain, or sensation, or the inception or general character of the cause
       or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

This rule expressly contemplates a response to questions whereas the excited utterance

exception stated in Rule 803(2) of the Arkansas Rules of Evidence does not.1

       In Flores v. State, 348 Ark. 28, 69 S.W.3d 864 (2002), this court adopted a two-part

test first promulgated by the Eighth Circuit in United States v. Iron Shell, 633 F.2d 77 (8th Cir.

1980). The two-part test is as follows: (1) is the declarant’s motive consistent with the

purpose of the rule; and (2) is it reasonable for the physician to rely on the information in

diagnosis or treatment. Flores, 348 Ark. at 43, 69 S.W.3d at 874.

       The Flores test, as applied to the facts of this case, supports the admission of the victim’s

statement. When the statement was made, David Payan had just provided emergency

treatment to the victim’s most obvious injury, a gunshot wound. Obviously, it was necessary

for Payan to determine whether were other, less obvious injuries requiring attention. The


       1
         I am mindful of the the mere fact that a response to a direct question does not, per
se, make the excited-utterance exception inapplicable; however, in Rodriguez v. State, 372
Ark. 335, 337-38, 276 S.W.3d 208, 211 (2008), this court required, in addition to a startling
event, that it must appear that the declarant’s condition at the time was such that the
statement was spontaneous, excited or impulsive rather than the product of reflection and
deliberation, and the statement must express the declarant’s reaction to the event. Here, the
victim was describing the extent of his altercation with Hicks.

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victim’s response that his gunshot wound was not the result of an altercation in which he

suffered other trauma was important information. In making his statement, the victim

conveyed that he had no other injuries, and Payan reasonably did not conduct further

examination before transporting the victim to the hospital. Significantly, the victim did not

identify the perpetrator, nor was he asked to do so. Cf. Flores, supra.

       It is the practice of this court not to reverse an evidentiary ruling by a circuit court

when it uses the wrong reason to reach the right result. Dandridge v. State, 292 Ark. 40, 727

S.W.2d 851 (1987). Accordingly, I concur.

       Cross, Gunter, Witherspoon & Galchus, P.C., by: Misty Wilson Borkowski, for appellant.

       Leslie Rutledge, Att’y Gen., by: Rebecca Bailey Kane, Ass’t Att’y Gen., for appellee.




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