Warden v. State

2011 Ark. App. 75, 381 S.W.3d 140, 2011 Ark. App. LEXIS 89
CourtCourt of Appeals of Arkansas
DecidedFebruary 2, 2011
DocketNo. CA CR 10-784
StatusPublished
Cited by3 cases

This text of 2011 Ark. App. 75 (Warden v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Warden v. State, 2011 Ark. App. 75, 381 S.W.3d 140, 2011 Ark. App. LEXIS 89 (Ark. Ct. App. 2011).

Opinion

JOHN B. ROBBINS, Judge.

11Appellant Dorothy Warden was convicted in a bench trial of aggravated assault. As a result of her conviction, Ms. Warden received a two-year suspended imposition of sentence and $300 in fines and court costs. On appeal, Ms. Warden argues that the trial court erred in denying her motion for directed verdict. Alternatively, she contends that the trial court erred in failing to consider lesser-included offenses of assault because the State failed to prove the requisite mental state for aggravated assault. We affirm.

Arkansas Code Annotated section 5-13-204(a) (Repl.2006) provides:

(a) A person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he or she purposely:
(1) Engages in conduct that creates a substantial danger of death or serious physical injury to another person; or
(2) Displays a firearm in such a manner that creates a substantial danger of death or serious physical injury to another person.

LA directed-verdict motion is a challenge to the sufficiency of the evidence. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999). We consider sufficiency of the evidence before addressing other alleged trial errors. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). In considering the evidence, we will not weigh the evidence or assess credibility, as those are questions for the finder of fact. Woods v. State, 363 Ark. 272, 213 S.W.3d 627 (2005).

One of the alleged victims in this case was appellant’s sister, Gail Owen. Mrs. Owen testified that on March 13, 2009, she lived in an apartment with her mother. Ms. Warden had previously lived with them in the apartment, but had moved to another apartment in the same complex about a week earlier. Mrs. Owen stated that their mother was in ill health and needed constant care, and that Ms. Warden would come to the apartment and care for their mother while Mrs. Owen was at work. Mrs. Owen is currently married to Blake Owen, but at that time Mr. Owen was her boyfriend and he would stay the night at her apartment two or three times a week.

LOn the morning of March 13, 2009, Mrs. Owen awoke and noticed that her personal items in the bathroom had been moved or knocked over. On that morning Mrs. Owen, her mother, and Blake were in the apartment. Mrs. Owen went to the bedroom that previously belonged to Ms. Warden and Ms. Warden was there. Mrs. Owen described the following events:

I asked her if she had knocked over the things in my bathroom and she said she did. I left her room and went to the kitchen to make some coffee. I did not know where she was until I turned around and saw her in the kitchen holding a kitchen knife with a blade of about four inches long. Dorothy shook the knife at me and, for no reason, told me I needed to tell Blake to leave the apartment and not come back. I went to my bedroom and told Blake to leave because Dorothy was acting crazy, so he got up and got dressed. When we walked out of the bedroom, Dorothy was at the other side of the hallway holding a shotgun. Blake and I were facing her and she was standing there holding the open gun. She pulled a bullet-thing out of her pocket and put it in the gun. The gun was not pointing straight at us, but she was holding it. I told her, “Don’t be stupid,” and she said, “I’m not stupid, I’m insane.” Then she shut the gun and I shoved Blake into the bathroom and shut the door behind us. I was afraid Dorothy was going to shoot us so I called 9-1-1.

Mrs. Owen testified that she and Blake remained in the bathroom until the police arrived. There was no arrest made at the scene, but Mrs. Owen explained that the officers told her it was a felony and she did not want her sister to go to prison. Three days later, Mrs. Owen and Blake went to the police station and provided information about the assault. Based on their statements to the police, a warrant was issued for Ms. Warden’s arrest.

Eunice Norwood is also appellant’s sister, and at the time of the incident she lived in Michigan. Ms. Norwood testified that after the incident occurred she had a telephone conversation with Ms: Warden. According to Ms. Norwood, Ms. Warden called her at work|4and told her something had happened, that everyone was okay, and that she needed to call Mrs. Owen. After having a conversation with Mrs. Owen, Ms. Norwood told appellant that Mrs. Owen had told her that appellant had pointed a gun at Mrs. Owen and Blake and threatened the two of them. Ms. Warden did not refute that statement but responded, “well, now you know.”

Officer Kory Bauer investigated the incident. He testified that he interviewed the victims, and that they told him that the gun was pointed down a hallway in their direction. After arriving at the apartment, he found a shotgun in the back bedroom. Officer Bauer referenced a letter written by Ms. Warden after the incident, wherein Ms. Warden wrote, “If I could ‘want’ to kill someone it would be Gail. She brought him into my mother’s home.”

Ms. Warden’s first argument on appeal is that the trial court erred in denying her direeted-verdict motion because there was insufficient evidence that she committed aggravated assault. Ms. Warden asserts that Mrs. Owen’s testimony failed to prove that a loaded gun was ever pointed at her or Mr. Owen. She further asserts that the responding police officers did not believe that she caused a substantial danger of death or serious physical injury or else they would have arrested her then or taken her in for questioning. Ms. Warden contends that there was no evidence beyond suspicion or conjecture that she manifested extreme indifference to the value of human life by purposely engaging in conduct that creates a substantial danger of death or serious physical injury, all of which are required elements |fiunder the statute. Ms. Warden also cites Mack v. State, 2010 Ark. App. 514, 2010 WL 2522736, where we held that when circumstantial evidence alone is relied upon, the evidence must exclude every reasonable hypothesis other than the guilt of the accused. Ms. Warden submits that the circumstantial evidence failed to exclude every other reasonable hypothesis.

We hold that substantial evidence supports Ms. Warden’s conviction for aggravated assault. As a result of the difficulty in ascertaining the actor’s state of mind, a presumption exists that a person intends the natural and probable consequences of his or her acts. Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000).

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Bluebook (online)
2011 Ark. App. 75, 381 S.W.3d 140, 2011 Ark. App. LEXIS 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warden-v-state-arkctapp-2011.