                                Cite as 2015 Ark. App. 295

                 ARKANSAS COURT OF APPEALS
                                      DIVISION IV
                                     No. CR-14-1052

NATHAN NEAL SIZEMORE                             Opinion Delivered May 6, 2015
                   APPELLANT
                                                 APPEAL FROM THE WASHINGTON
V.                                               COUNTY CIRCUIT COURT
                                                 [NO. CR 2014-919-1]

STATE OF ARKANSAS                                HONORABLE WILLIAM A. STOREY,
                                 APPELLEE        JUDGE

                                                 AFFIRMED

                               RITA W. GRUBER, Judge

       Appellant Nathan Neal Sizemore was convicted by a jury of negligent homicide and

sentenced to eight months in the county jail and a fine of $1,000. He appeals, claiming that

the evidence was insufficient to support his conviction. We affirm his conviction.

       On August 26, 2012, at approximately 1:50 p.m., appellant, who was eighteen at the

time and did not have a driver’s license, was driving a friend’s car east on Highway 16 in

Fayetteville. The victim, Angela Sue Rife, was driving her Jeep Liberty west on Highway 16

with her fiancé, Aaron MacAbee, and her son, who was in a car seat in the back. Mr.

MacAbee testified that they were traveling at approximately 55 to 56 miles per hour when

he saw appellant’s car drift over the double-yellow line. Mr. MacAbee testified that appellant

came toward them for three to five seconds. Although Ms. Rife applied her brakes and steered

across the white line away from appellant’s car, appellant’s car collided head-on with Ms.

Rife’s Jeep, and Ms. Rife was killed. Mr. MacAbee testified that it was not raining and he did
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not observe any obstacles on the road before the accident.

         Ricky Loge was driving the vehicle in front of appellant and saw him veer across the

road and collide with Ms. Rife. He testified that he was driving between fifty and fifty-five

miles per hour and that appellant was driving the same speed behind him. Mr. Loge testified

that appellant did not signal, did not attempt to pass him, and did not break before drifting

into the oncoming lane of traffic. He said the road surface appeared to be normal with no

potholes or broken pavement. He also testified that it was not raining and he did not walk

through any water when he went to the accident scene after the wreck.

         Kyle Reynolds, a retired fireman and EMT, was driving the same direction and route

as appellant and stopped at the scene when he came upon it several minutes after the accident.

He testified that it was not raining and he did not recall any puddles when he walked to the

scene.

         Officer Elliott Luebker of the Fayetteville Police Department testified that he arrived

on the scene several minutes after the accident. His patrol car is equipped with a mobile

video-recording device, which was operating on the day of the accident. He testified that

there were no puddles of water or damp roads at the scene of the accident or in the immediate

vicinity and that it was not raining when he arrived on the scene. The video revealed no

puddles or obstacles in the roadway near the crash site.

         Officer David Nguyen was employed by the Fayetteville Police Department as a patrol

officer and an accident reconstructionist at the time of the accident. He testified that the only

skid marks at the scene were made by Ms. Rife’s Jeep. He explained that skid marks occur


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when the wheels lock up, creating friction that leaves marks on the highway. He explained

that yaw marks indicate that the tires lost grip. Officer Nguyen testified that appellant’s car

did not make any skid marks or yaw marks. He also testified that his inspection of the scene

did not reveal any potholes, cracks, or dips in the road.

       Officer Brian Lindabury, a detective with the Fayetteville Police Department, testified

that he was assigned to investigate the accident. He said that he interviewed appellant on

January 7, 2013. Appellant told Officer Lindabury that the accident was caused when he hit

a puddle that caused his car to hydroplane. Appellant testified at trial that he remembered

hitting water and then waking up in the hospital.

       Appellant’s sole point on appeal is that the circuit court erred in denying his motion

for directed verdict because the evidence was insufficient to support the jury’s finding that he

was guilty of negligent homicide. The test for determining sufficiency of the evidence is

whether there is substantial evidence, direct or circumstantial, to support the verdict. Jackson

v. State, 2011 Ark. App. 528, at 5, 385 S.W.3d 394, 397. On appeal, we consider only the

evidence that supports the verdict, viewing the evidence in the light most favorable to the

State. LeFever v. State, 91 Ark. App. 86, 89, 208 S.W.3d 812, 815 (2005). Evidence is

substantial if it is forceful enough to compel reasonable minds to reach a conclusion and pass

beyond suspicion and conjecture. Harmon v. State, 340 Ark. 18, 22, 8 S.W.3d 472, 474

(2000). We do not weigh the evidence presented at trial, as that is a matter for the fact-finder.

Id. at 22, 8 S.W.3d at 474–75. Witness credibility is an issue for the fact-finder, which is free

to believe all or a portion of any witness’s testimony and whose duty it is to resolve questions


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of conflicting testimony and inconsistent evidence. LeFever, 91 Ark. App. at 89, 208 S.W.3d

at 815.

          Appellant was convicted of negligent homicide. Arkansas Code Annotated section 5-

10-105(b)(1) (Supp. 2011) provides that “[a] person commits negligent homicide if he or she

negligently causes the death of another person.” The criminal code defines “negligently” as

follows:

          (A) A person acts negligently with respect to attendant circumstances or a result of his
          or her conduct when the person should be aware of a substantial and unjustifiable risk
          that the attendant circumstances exist or the result will occur.

          (B) The risk must be of such a nature and degree that the actor’s failure to perceive the
          risk involves a gross deviation from the standard of care that a reasonable person would
          observe in the actor’s situation considering the nature and purpose of the actor’s
          conduct and the circumstances known to the actor.

Ark. Code Ann. § 5-2-202(4) (Repl. 2006).

          The issue before us is whether, viewing the evidence in the light most favorable to the

State, the evidence was sufficient to support appellant’s conviction. Appellant argues that the

accident was caused by the rain, was instantaneous, and gave him no time to react. He

contends that substantial evidence does not support his conviction for negligent homicide.

          We turn to our supreme court’s opinion in Utley v. State, 366 Ark. 514, 237 S.W.3d

27 (2006), in which the court affirmed a negligent-homicide conviction in similar

circumstances. In that case, Mr. Utley was driving a commercial garbage truck and crossed

the center line, killing a driver traveling in the opposite direction. Id. In that case, as here,

there was no evidence that Mr. Utley braked, swerved, or did anything to avoid hitting the

victim. Id. The court reasoned that “[a] person driving a garbage truck around a curve and

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on a bridge should be aware that driving on the wrong side of the road presents a substantial

and unjustifiable risk that he might hit a car traveling in the opposite direction and kill

someone in that car.” Id. at 518, 237 S.W.3d at 30. Although appellant told Detective

Lindabury four months after the accident that the accident was caused because his car hit

water and hydroplaned, and he testified at trial that he remembered hitting water in the car

and then waking up in the hospital, there was evidence that there were neither puddles of

water nor obstacles on the road near the scene of the accident. In fact, appellant’s was the only

testimony that there were puddles near the scene of the accident.

       Mr. Loge, who was driving immediately in front of appellant, said the road surface

appeared to be normal with no potholes or broken pavement, that it was not raining at the

time of the accident, and that he did not walk through any water when he went to the

accident scene after the wreck. He also testified that appellant’s car seemed to “drift” into the

other lane. His description did not suggest that appellant lost control of his car as when a car

hydroplanes.

       Kyle Reynolds testified that it was not raining when he stopped to help, and he did

not recall any puddles when he walked to the scene. Officer Luebker testified that there were

no puddles of water or damp roads at the scene of the accident or in the immediate vicinity

and that it was not raining when he arrived on the scene. Moreover, his mobile video

revealed no puddles or obstacles in the roadway near the crash site. Officer Nguyen, the

accident reconstructionist, testified that the only skid marks at the scene were made by Ms.

Rife’s Jeep and that there were no yaw marks. The jury could certainly have inferred from


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this testimony that appellant’s tires never lost traction, as would have occurred if the car had

hydroplaned.

       Viewing the evidence in the light most favorable to the State, we hold that substantial

evidence supports the jury’s verdict.

       Affirmed.

       VIRDEN, J., agrees.

       WHITEAKER, J., concurs.

       PHILLIP T. WHITEAKER, Judge, concurring. I agree with the majority opinion

that appellant Nathan Sizemore’s conviction must be affirmed because the supreme court’s

decision in Utley v. State, 366 Ark. 514, 237 S.W.3d 27 (2006), is controlling. I write

separately, however, to reiterate the same concerns that Chief Justice Hannah expressed in

his dissenting opinion in Utley.

       In order to secure a conviction for negligent homicide, the State must prove beyond

a reasonable doubt that the defendant negligently caused the death of another person. Ark.

Code Ann. § 5-10-105(b)(1) (Supp. 2011). A person acts negligently with respect to

attendant circumstances or a result of his or her conduct when the person should be aware

of a substantial and unjustifiable risk that the attendant circumstances exist or the result will

occur. Ark. Code Ann. § 5-2-202(4)(A) (Repl. 2006). The risk must be of such a nature and

degree that the actor’s failure to perceive the risk involves a gross deviation from the standard

of care that a reasonable person would observe in the actor’s situation, considering the nature

and purpose of the actor’s conduct and the circumstances known to the actor. Ark. Code


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Ann. § 5-2-202(4)(B).

       This definition of criminal negligence is different from the definition of negligence

in a civil case, which is merely the failure to do something that a reasonably careful person

would do. Wal-Mart Stores, Inc. v. Londagin, 344 Ark. 26, 37 S.W.3d 620 (2001); City of Little

Rock v. Cameron, 320 Ark. 444, 897 S.W.2d 562 (1995). The degree of negligence sufficient

to establish civil liability is not sufficient to establish criminal liability. Hunter v. State, 341

Ark. 665, 19 S.W.3d 607 (2000); Phillips v. State, 6 Ark. App. 380, 644 S.W.2d 288 (1982).

Our jury instructions on negligent homicide reflect this distinction. See AMI Crim. 2d 1005

(“The term ‘negligently’ as used in this criminal case means more than it does in civil cases.”).

In Phillips v. State, 204 Ark. 205, 161 S.W.2d 747 (1942), our supreme court stressed the

heightened standards for finding criminal negligence:

       The courts and the authorities agree, in the absence of statutory regulations, that a
       higher degree of negligence is required to establish criminal negligence than to
       establish liability in a civil action. The negligence required in a criminal proceeding
       must be more than a lack of ordinary care and precaution. It must be something more
       than mere inadvertence or misadventure. It is a recklessness or indifference
       incompatible with a proper regard for human life. It must be shown that a homicide
       was not improbable under all of the facts existing at the time, and that the knowledge
       of such facts should have had an influence on the conduct of the offender.

Phillips, 204 Ark. at 212, 161 S.W.2d at 750.

       In his dissenting opinion in Utley, supra, Chief Justice Hannah wrote that there had

been a “change in analysis” in ascertaining whether a conviction for negligent homicide is

supported by substantial evidence. He noted that, rather than focusing on the culpable mental

state of the driver, the “focus now is upon the severity of the injury that results.” Utley, 366

Ark. at 519, 237 S.W.3d at 37 (Hannah, C.J., dissenting). Rather than examining the

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necessary question of whether, under the circumstances, the person should have been aware

of the risk and whether his or her failure to perceive it was a gross deviation from the care

a reasonable and prudent person would exercise under the circumstances, the courts now

look to see only whether the defendant’s car crossed the center line and whether someone

died. If that happened, then the defendant is criminally liable for homicide. His intent or state

of mind has become irrelevant, despite the fact that the defendant’s mens rea is an element

of the offense that the State must prove beyond a reasonable doubt. See, e.g., Norton v. State,

271 Ark. 451, 453–54, 609 S.W.2d 1, 3 (1980) (where intent is an element of the offense,

the State must prove each element beyond a reasonable doubt). By judicial fiat, the courts

have turned any fatality caused by a head-on car crash into a strict-liability offense.

       I agree with Chief Justice Hannah that the Utley majority changed the lens through

which car-crash negligent-homicide cases are viewed. Nonetheless, Utley controls in this

case, and I must therefore reluctantly agree to affirm.

       Evans and Evans Law Firm, by: James E. Evans, Jr., for appellant.

       Leslie Rutledge, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., and Matthew Rowland,
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, for appellee.




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