A Crossett man convicted in December 2018 of unlawfully discharging a firearm that resulted in the July 2018 death of another man then throwing the pistol into the Ouachita River, has lost an appeal to the Arkansas Court of Appeals.
James Webb, 79, admits that his pistol caused the death of 55-year-old Dennis Smith and that he threw the pistol into the Ouachita River after the shooting, according to the Arkansas Court of Appeals.
On the night of the shooting, Webb and Leon “Shane” Thomas were traveling in Webb’s truck when they saw brothers, Dennis and Mark Smith standing at the end of the roadway. Thomas asked Webb to stop the truck so he could talk to Mark Smith. Thomas then walked over to the Smith brothers to talk to them while Webb remained in the truck. What happened next is in dispute.
Both Mark Smith and Thomas testified that Webb pointed his pistol at the Smith brothers and fired a shot that killed Dennis.
Webb testified that Thomas asked him about the pistol and was holding the pistol. Webb further testified that in the process of retrieving the pistol from Thomas, the gun discharged and a bullet accidentally struck and killed Dennis. Webb then left the scene and threw the gun in the river.
After hearing that evidence, the jury was instructed on the offenses of evidence tampering and first-degree unlawful discharge of a firearm from a vehicle, as well as the lesser-included offense of second-degree unlawful discharge of a firearm.
Webb requested an instruction on negligent homicide, claiming that it is a lesser-included offense of unlawful discharge of a firearm offense. He also moved for a directed verdict at trial, arguing in part that the prosecution failed to prove the concealment of the firearm with the purpose of impairing its availability in the official proceeding or investigation of a felony.
The Ashley County Circuit Court denied Webb’s requests and the jury convicted him of second-degree unlawful discharge of a firearm and tampering with physical evidence. He was sentenced to 16 years in prison for the firearm discharge conviction and six years in prison for tampering with physical evidence.
Webb appealed his convictions to the Arkansas Court of Appeals.
Webb argued that the Ashley County Circuit Court erred when it denied his motion for directed verdict on the tampering with evidence charge.
To commit the offense of tampering with physical evidence, Webb had to alter, destroy, suppress, remove, or conceal any record, document, or thing with the purpose of impairing its verity, legibility, or availability in any official proceeding or investigation, according to Arkansas Court of Appeals Judge Phillip T. Whiteaker.
“Webb admits that he was holding the gun when it discharged and killed Dennis (Smith) and further admits that he threw the gun into the river,” Whiteaker wrote in Wednesday’s decision. “He claims he did so because he was remorseful and did not want a weapon that had been used to killed someone. He argues that the State provided no evidence that he disposed of the weapon to impair or impede the investigation of the shooting and (Smith’s) resulting death.”
Webb also claims the Ashley County Circuit Court erred when it failed to instruct the jury on negligent homicide.
“Webb argues that the trial court is required to give a lesser-included-offense instruction if there is even the slightest evidence to support it, and because there was evidence presented at trial to support a conviction for negligent homicide, the trial court committed reversible error,” Whiteaker wrote. “Webb correctly asserts that the refusal to give an instruction on a lesser-included offense is reversible error if the instruction is supported by even the slightest evidence. However, a trial court does not abuse its discretion in denying a proffered jury instruction on a charge that is not a lesser-included offense. Here, the trial court found that negligent homicide is not a lesser-included offense of unlawful discharge of a firearm from a vehicle. We find no merit in Webb’s claim that the trial court abused its discretion in this finding.”