James W. Webb, who had argued errors by the trial court, saw the Arkansas Court of Appeals affirm his convictions for unlawful discharge of a firearm from a vehicle and tampering with physical evidence in a decision returned on Wednesday, Oct. 2.
In a case before Judge Robert Bynum Gibson Jr., an Ashley County jury convicted Webb of actions that led to the death of Dennis Smith on July 8, 2018, from a gunshot wound. Webb admitted his pistol caused Smith’s death and that he threw the gun into the Ouachita River.
The record indicated that Webb and Leon “Shane” Thomas were in Webb’s truck when they saw Dennis Smith and his brother, Mark, standing at the end of a road, and Thomas asked to stop and talk to Mark Smith. Webb said that Thomas was holding the pistol when the fatal shot was accidentally fired while Webb was trying to get the gun back. Webb admitted throwing the gun in the river after the shooting.
During the trial, the jury heard instructions on evidence tampering and first degree unlawful discharge of a firearm from a vehicle, as well as the lesser included offense of unlawful discharge of a firearm in the second degree. Webb requested an instruction on negligent homicide, claiming that it is a lesser included offense of the unlawful discharge offense, but the court refused to submit the instruction to the jury. Webb also moved for a directed verdict. The trial court denied his directed verdict motions, and the jury returned a verdict convicting him of the lesser-included offense of second-degree unlawful discharge of a firearm and tampering with physical evidence.
The opinion notes, “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.
“He claims he did so because he was remorseful and did not want a weapon that had been used to killed [sic] 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 Dennis’s resulting death.”
The opinion noted that the motion for a directed verdict “merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense.” The defense attorney argued that the state did not make a case for evidence tampering because “there is no evidence that my client did this.”
In regard to the issue of negligent homicide as a lesser included offense, the court of appeals ruled that “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.”
The court added in a footnote to the case, “...we conclude there was sufficient evidence presented to support the conviction. Webb shot Dennis, drove away in his vehicle, and threw the gun in the river. While he claimed that the discharge was accidental and that the disposal was not to impede any investigation or prosecution, the jury was not required to believe his version of events.”
The court sentenced Webb to six years for tampering with physical evidence and 16 years for the discharge of a firearm from a vehicle.
Judge Phillip T. Whiteaker wrote the opinion with agreement by Judges Raymond R. Abramson and J. J. Gladwin. Gary W. Potts represented Webb in the case.
Webb, now 79, is serving his sentence in the Ouachita River Correctional Unit in Malvern.
The Arkansas Department of Correction web site indicates that he will be eligible for parole in November, 2026.