Dye v. State

17 S.W.3d 505, 70 Ark. App. 329, 2000 Ark. App. LEXIS 434
Court of Appeals of Arkansas·Decided May 31, 2000·No. CA CR 99-1023·Published·Cited by 9 cases

Opinion

MARGARET Meads, Judge.

Jerry Dye was convicted by a Sebastian County jury of stalking in the second degree and sentenced to 120 months in the Arkansas Department of Correction. On appeal, he argues that the trial court erred (1) in denying his motion for directed verdict; (2) in denying his motion for a continuance; and (3) in admitting evidence of guns and ammunition which was irrelevant to the crime charged and was more prejudicial than probative. We affirm.

A motion for a directed verdict is a challenge to the sufficiency of the evidence, which we consider before any other points on appeal. Smith v. State, 68 Ark. App. 106, 3 S.W.3d 712 (1999). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. In determining whether a finding of guilt is supported by substantial evidence, we review the evidence, including any that may have been erroneously admitted, in the fight most favorable to the verdict. Willingham v. State, 60 Ark. App. 132, 959 S.W.2d 74 (1998). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000).

At trial, the victim, Mary Komp, testified that she and appellant began a sexual relationship in 1992 while they were co-workers at St. Edward’s Hospital. Komp was married at the time to Fred Komp. After six or eight months, Komp attempted to discontinue the relationship, but appellant resisted. Appellant continued to pursue Komp to the point that she reported his actions to their employer, and in July 1993 he was terminated as a result of his conduct. Appellant continued to call Komp both at work and at home, any time of day or night, and she continued to talk to him, although she claimed she asked him to stop calling her and did not want an intimate relationship with him. Appellant continued to follow Komp, and she testified that a couple of times, when it got more intense, appellant told her that he “would find Fred on whatever job he was on and he would kill him.”

On February 5, 1998, appellant called Komp at work, and they began to argue about whether she would visit him on his birthday. Komp terminated that conversation and refused to take his subsequent calls, and she spoke to her supervisor about the problems she was having with appellant. Her supervisor allowed her to leave work to file an incident report with the police. Officers Bill Hollenbeck and Chris Johnson followed Komp back to work, and they set up surveillance and recorded appellant’s conversations with Komp. After several conversations with appellant, Komp told him that if he did not leave her alone she would have him arrested, to which he replied, “you don’t want to do that ’cause eventually I’ll get out.” Komp told him that his threats would not hurt her anymore, to which appellant replied, “you ain’t doin’ nothing like that. You can get me arrested but that’ll be the last thing you do.” Komp testified that she understood the latter statement to mean that appellant would hurt her or her family.

In his motion for directed verdict, appellant argued that the stalking statute required an express threat of physical injury and that the threat he made to appellant on February 5, 1998, was ambiguous, vague, and inadequate to prove that he intended physical injury. On appeal, appellant argues not only that he did not threaten physical injury but also that the State failed to prove that the victim felt imminent fear as a result of his actions or that he had engaged in a course of conduct. We will not consider an argument raised for the first time on appeal; a party cannot change the grounds for an objection or motion on appeal but is bound by the scope and nature of the arguments made at trial. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). Therefore, the only argument we will consider is whether the State failed to prove appellant had threatened physical injury to the victim or her immediate family.

A person commits stalking in the second degree if he purposely engages in a course of conduct that harasses another person and makes a terroristic threat with the intent of placing that person in imminent fear of death or serious bodily injury or placing that person in imminent fear of the death or serious bodily injury of his or her immediate family. Ark. Code Ann. § 5-71-229(b)(l) (Repl. 1997). A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or cause such a result. Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). Because of the obvious difficulty in ascertaining the actor’s intent or state of mind, a presumption exists that a person intends the natural and probable consequences of his acts, and the factfinder may draw upon common knowledge and experience to infer the defendant’s intent from the circumstances. Id.

Mary Komp testified that appellant called her repeatedly and persistently after she tried to terminate the relationship, and threatened at one point to find her husband and kill him. Moreover, after arguing on February 5, appellant told her, “You can get me arrested but that’ll be the last thing you do.” While appellant claims the latter statement was an “implied” threat, we disagree. We believe appellant expressly threatened to harm both Mary Komp and her husband, and that there was substantial evidence that appellant placed Komp in imminent fear of death or serious bodily injury both to herself and to a member of her immediate family. See Wesson v. State, 320 Ark. 380, 896 S.W.2d 874 (1995). Therefore, the trial court did not err in denying appellant’s motion for directed verdict.

Appellant next contends that the trial court erred in denying his motion for a continuance when the State withdrew an agreement concerning the admission of evidence on the day of the trial. After hearing the February 5, 1998, taped telephone conversations between Komp and appellant, Officers Hollenbeck and Johnson set up surveillance of appellant. Officer Johnson observed appellant entering Wal-Mart and exiting a short time later with a small bag. After leaving Wal-Mart, appellant drove toward Komp’s house; a short distance from her home, officers arrested appellant for stalking. When his vehicle was searched, officers found that the Wal-Mart bag contained a box of .223 caliber ammunition. Appellant then consented to a search of his home, and the officers found an AR-15 assault rifle, which uses .223 caliber ammunition. In a taped interview, appellant told the police that he had purchased the rifle two days before and was preparing to go shooting with some friends that weekend, so he had purchased the ammunition. Appellant averred that he never had an intention of using the gun on either Komp or himself and that he had no intention of hurting Komp.

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Dye v. State, 17 S.W.3d 505, 70 Ark. App. 329, 2000 Ark. App. LEXIS 434 (Ark. Ct. App. 2000).

17 S.W.3d 505 (Dye v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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