Daniel Christopher Webb v. State of Arkansas

Arkansas Court of Appeals

Not Designated for Publication

Judge Josephine Linker Hart

Division I

DANIEL CHRISTOPHER WEBB

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CA00-406

December 6, 2000

APPEAL FROM THE CONWAY COUNTY CHANCERY COURT

[NO. J99-96]

HONORABLE WILLIAM R. BULLOCK, JUDGE

AFFIRMED IN PART; REVERSED AND DISMISSED IN PART; REMANDED FOR RESENTENCING

The trial court adjudicated appellant, Daniel Christopher Webb, a delinquent juvenile and committed him to the Arkansas Division of Youth Services. The court based its adjudication on its conclusion that appellant committed the crime of threatening a bombing, a Class A misdemeanor, and committed two counts of first-degree terroristic threatening, Class D felonies, with Sister Rachel Auringer the victim in one count and Bonnie Flynn the victim in the other. Appellant argues on appeal that the allegations in the State's petition for adjudication were not substantiated by the proof. We affirm in part, reverse and dismiss in part, and remand for resentencing.

Sister Rachel Auringer, the principal of Sacred Heart School, testified that appellant was a student at Sacred Heart for two weeks before he failed to show for school. Auringercalled appellant's mother, and she told Auringer that appellant had gone deer hunting.

Appellant remained absent for a week, and appellant's mother again told Auringer that appellant was hunting. Appellant failed to attend school for three and one-half weeks. Aurigner testified that because of his absences, appellant was not allowed to return to school. She later saw appellant near the school grounds and granted him permission to attend a basketball game, but warned him to be careful about what he said. Auringer, however, testified that she had no direct knowledge regarding what appellant said or did, just that "the children have talked about it."

Bonnie Flynn, a student at Sacred Heart, testified that after appellant quit attending school, he told her that he was going to "get back" at Auringer because she had kicked him out of school and that "he was going to get back at me or get back at everybody or he was going to get everybody that stood in his way." Appellant also told her that he "was going to get back at us or at me because I stopped talking to him ...." Flynn further testified that at a basketball game appellant stated that "he was going to get back at everybody because he didn't get to come to school anymore ...." According to Flynn, appellant also stated that "he was going to blow up our school" because he believed that they had "looked in his red book" that he had lost and that "he was going to get us for looking in his book." Flynn also stated that appellant told her he had a knife in his pocket, and she further testified that he threatened someone with it.

Allison Burnett, also a student at Sacred Heart, testified that she saw appellant at a basketball game. Appellant asked if she was the person who had been "messing with himabout his notebook," and Burnett replied that she was not that person. After one of Burnett's friends, Kyle Payne, playfully kicked her, appellant kicked in the air, scaring her. Appellant's hands began shaking, and appellant stated that "when he can do that he can kill a man or a person ...." Burnett asked if he had a weapon, and appellant replied, "No, but I have five at home."

Kyle Payne, also a student at Sacred Heart, testified that at a basketball game appellant performed a "martial arts kick" and said, "be aware at school tomorrow or at the next basketball game because he had five weapons and he wasn't afraid to use them ...." Appellant's hand began shaking and he said that "he could kill somebody when his hand was shaking." Payne testified that on an earlier occasion, during the first couple of days appellant attended school, appellant further stated that he wanted to kill his former girlfriend.

Terry Alvey, a student at Sacred Heart, testified that at a basketball game she was selling tickets for a raffle when appellant approached her and said, "[I]f your friends are trying to disrespect me, then they're doing a good job of it." When asked who was doing this, appellant replied that it was the girls in her class and "the gay blade." Alvey testified that appellant was referring to a red notebook when he claimed that her friends were not giving him respect. Later, appellant was walking down the hall and stated, "My hand's shaking, that doesn't mean I'm mad, it means I kill."

In reviewing the sufficiency of the evidence in a delinquency case, we consider only proof supporting the finding of delinquency and view the evidence in the light most favorable to the State, affirming if the delinquency adjudication is supported by substantialevidence. See Hunter v. State, 341 Ark. 665, 19 S.W.3d 607 (2000). With regard to the offense of threatening a fire or bombing, a person commits this offense if he "purposely threatens damage or injury to the person or property of another by bombing, fire, or other means, in a manner likely to place another person in reasonable apprehension of physical injury to himself or another or of damage to his property or to the property of another, or to create public alarm." Ark. Code Ann. § 5-71-211(a) (Repl. 1997). While appellant argues that testimony that he was going to "blow up" the school was refuted by his own testimony and that of a witness for the defense, we do not weigh the credibility of the witnesses, as this is a matter for the trier of fact. See, e.g., Knight v. State, 25 Ark. App. 353, 758 S.W.2d 12 (1988). Thus, the allegation contained in the State's petition was substantiated by the proof, and we affirm the court's adjudication of appellant as a delinquent.

A person commits the offense of terroristic threatening in the first degree if either, "[w]ith the purpose of terrorizing another person, he threatens to cause death or serious physical injury or substantial property damage to another person," or "[w]ith the purpose of terrorizing another person, he threatens to cause physical injury or property damage to a teacher or other school employee acting in the line of duty." Ark. Code Ann. § 5-13-301(a)(1) (A) and (B) (Repl. 1997). This court has held that "[t]here is no language in the statute indicating the threat must be communicated by the accused directly to the person threatened ...." Richards v. State, 266 Ark. 733, 735, 585 S.W.2d 375, 376 (Ark. App. 1979). However, "the gravamen of the offense of terroristic threatening is communication, not utterance." Knight, 25 Ark. App. at 356, 758 S.W.2d at 14.

With regard to the two counts of terroristic threatening, the State alleged in its petition that the victims were Auringer, the principal, and Flynn, a student. Based on the testimony presented, we cannot conclude that there was substantial evidence that appellant committed these two counts. We note that Auringer did not testify that she heard any remarks made by appellant. While appellant's remarks to Flynn that he would "get back" at her and Auringer are of concern, the remarks did not, without more, constitute, with regard to Flynn, a threat "to cause death or serious physical injury," or, with regard to Auringer, a threat "to cause physical injury." And while appellant told Flynn that he would "blow up" the school, there is no evidence that this constituted a threat to Flynn or Auringer, and there is no evidence that Auringer was even aware of appellant's remark. Nor is there evidence that appellant's remarks to Flynn regarding his possession of a knife and his threatening of another person with the knife constituted a threat toward her. Furthermore, there is no evidence that either appellant's remarks to the other witnesses or his acts toward those witnesses were communicated to or observed by either Flynn or Auringer. Thus, we hold that the court erred in concluding that the allegations of terroristic threatening were substantiated by the proof. We reverse and dismiss the trial court's adjudication insofar it was based on the allegations that he committed two counts of terroristic threatening. Consequently, we remand this case to the trial court for resentencing in view of our conclusion that the adjudication was substantiated only by the allegation that appellant committed the crime of threatening a bombing.

Affirmed in part, reversed and dismissed in part, and remanded for resentencing.

Robbins, C.J., and Neal, J., agree.