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Shanks v. State4/27/2005
NOT DESIGNATED FOR PUBLICATION
Appellant Larry D. Shanks appeals from his conviction for criminally negligent homicide in the deaths of Robert and Sandra DeClercq, and he challenges the sufficiency of the evidence. Because appellant failed to renew his motion for directed verdict at the close of the evidence, his argument was not preserved for appellate review. Therefore, we affirm.
The DeClercqs were fatally injured when a Cobalt ski boat operated by appellant crashed into the DeClercqs' party barge. Appellant was charged by criminal information on two counts of Class A misdemeanor negligent homicide pursuant to Ark. Code Ann. § 5-10-105(b)(1) (Repl. 2003). At trial, Mike Hale testified that he and his wife Joyce went to Lake Hamilton to ride their jet skis and to see the DeClercqs. Around 5:00 or 6:00 p.m., Mr. DeClercq wanted to show the Hales a condominium he was considering buying. The group took the DeClercqs' party barge, which Hale described as "pretty slow." After they viewed the condo, the DeClercqs gave the Hales a ride back to their rented condo. By this time, Mr. DeClercq was drinking his third beer. At approximately 9:00 p.m., Hale noticed a ski boat "banking around to our right, and sort of rared up a bit." Mr. DeClercq started to move the barge to the left to try to put some distance between the barge and the ski boat, as it appeared that the ski boat would pass on the right side. The distance closed very quickly, and Mr. Hale did not realize that the boats were going to hit until the last second. The collision destroyed the right side of the barge. Mr. Hale testified that the lights were on the barge when he was riding but that it was "pitch dark" after the collision. After he pulled his wife from under debris, Mr. Hale saw Mr. DeClercq in the back of the boat. Mr. DeClercq had no pulse. Then he and his wife attempted to look for Mrs. DeClercq but could not find her.
Joyce Hale's testimony was similar to her husband's. She testified that she and her husband had dinner with the DeClercqs and that, while it was beginning to get dark, the boat was lit to where they could see other boats well. She noted that Mr. DeClercq had at least three beers. She first noticed the ski boat when it was about four hundred yards away from the barge. Mrs. Hale testified:
The Cobalt seemed to straighten out, then pointed its nose toward us, and Robert moved to the left again. We weren't really afraid that it was going to hit us at that point. It looked like he was going to go down our right side. At the last second, it turned on us.
Mrs. Hale noted that the ski boat destroyed the side of the boat where the DeClercqs had been sitting. Mr. and Mrs. Hale tried to look for Mrs. DeClercq, but because no one was wearing life jackets, Mrs. DeClercq had nothing to hold her up. On cross-examination, Mrs. Hale testified that she had seen Mr. DeClercq drink in the past but had never seen him intoxicated. She had given Mr. DeClercq his sixth alcoholic drink before the impact. Mrs. Hale also testified that all of Mr. DeClercq's movements were to the left, and on recross-examination, she testified that if Mr. DeClercq had turned to the right, the barge would have been moving toward the ski boat.
Garland County Deputy Sheriff Mike Roberson assisted in the search for Mrs. DeClercq's body in Lake Hamilton. The dive team found her body on the second day of the search. It appeared that Mrs. DeClercq sank straight to the bottom of the lake after impact and that she was unconscious immediately upon impact.
Anthony Hall, appellant's neighbor, testified that he and appellant left his dock at approximately 8:00 p.m. in his white 2001 Cobalt ski boat. O
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