Nekola Danyel Conery v. State of Arkansas

2019 Ark. App. 529

• Court: Court of Appeals of Arkansas
• Decided: November 13, 2019
• Status: Published

Opinion

Cite as 2019 Ark. App. 529 Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry Date: 2022.08.08 10:13:44 DIVISION II -05'00' No. CR-19-116 Adobe Acrobat version: 2022.001.20169

Opinion Delivered: November 13, 2019 NEKOLA DANYEL CONERY APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, V. SEVENTH DIVISION [NO. 60CR-18-1780]

STATE OF ARKANSAS APPELLEE HONORABLE BARRY A. SIMS, JUDGE

AFFIRMED; REMANDED TO CORRECT SENTENCING ORDER

RAYMOND R. ABRAMSON, Judge

Nekola Danyel Conery appeals the order of the Pulaski County Circuit Court

finding her guilty of second-degree terroristic threatening. On appeal, Conery argues that

the State failed to present sufficient evidence of her guilt. We affirm.

This case arose out of a confrontation between Conery and Kristina Peterson.

Peterson was a counselor at the middle school that Conery’s daughter attended. On October

10, 2017, Conery’s daughter had gotten in trouble for not having her ID badge and having

her cell phone with her at school. Conery’s daughter was sent to Peterson’s office. Conery

called to speak with Peterson and became belligerent, which caused Peterson to disconnect

the call. Five to seven minutes later, Conery arrived at the school, encountered Peterson in

the hallway, and began yelling and threatening her. Conery called her “a fat bitch” and told her, “I’ll drag your ass. I will fuck you up. I will beat your ass.” Conery eventually left the

building.

On April 27, 2018, the Pulaski County District Court held a bench trial and found

Conery guilty of second-degree terroristic threatening. Conery appealed to the Pulaski

County Circuit Court. On September 17, 2018, the circuit court held a bench trial. She

was again found guilty of committing second-degree terroristic threatening, was fined

$1,000, and was sentenced to one year in the county jail.

Conery now challenges her conviction and alleges that the State failed to present

sufficient evidence of her guilt. Specifically, she argues that the State failed to introduce

substantial evidence that would have allowed the fact-finder to reasonably infer that Conery

threatened Peterson with the conscious object of filling her with intense fright.

A motion to dismiss at a bench trial is a challenge to the sufficiency of the evidence.

Harris v. State, 2016 Ark. App. 23, 480 S.W.3d 229. However, a motion to dismiss must

state with specificity the grounds on which the motion relies. See Ark. R. Crim. P. 33.1(b)

(2019). Failure to raise an issue in a motion does not preserve the issue for appeal. See, e.g.,

Oliver v. State, 2016 Ark. App. 332, at 5, 498 S.W.3d 320, 323.

The State argues that Conery did not preserve the specific argument she makes on

appeal in her motion to dismiss. We agree. At the conclusion of the State’s presentation of

its case-in-chief, defense counsel made the following motion to dismiss the second-degree

terroristic-threatening charge: “Your honor, we’ll ask . . . for a motion to dismiss this case.

That the State has not met its burden as far as terroristic threatening regarding Ms. Conery.”

This statement is not specific enough to preserve her claim that the State did not prove the

2 mental state required for second-degree terroristic threatening. Thus, Conery cannot now

question the sufficiency of the evidence because she did not preserve her challenge for

appeal. We affirm the conviction for failure to preserve her argument for appeal.

We further remand the case to the circuit court for the limited purpose of entering

an amended sentencing order that corrects two clerical errors in the October 12, 2018

sentencing order. It is apparent to us that the sentencing order reflects a scrivener’s error.

The first clerical error noted that Conery was convicted of first-degree terroristic threatening

rather than second-degree terroristic threatening. The second clerical error showed that

Conery was to serve 365 months in jail for her offense. This should be corrected to reflect

twelve months’ jail time.

The court in Sizemore v. State, which affirmed appellant’s conviction but remanded

in part for the circuit court to correct the sentencing order, found, “A circuit court can

enter an order nunc pro tunc at any time to correct clerical errors in a judgment or order.”

2015 Ark. App. 728, at 8–9, 478 S.W.3d 281, 285–86 (internal citations omitted). Here,

we affirm Conery’s conviction, but we remand for the circuit court to correct the sentencing

order.

Affirmed; remanded to correct sentencing order.

VIRDEN and HIXSON, JJ., agree.

William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender,

for appellant.

Leslie Rutledge, Att’y Gen., by: Michael L. Yarbrough, Ass’t Att’y Gen., for appellee.