Carl Wynn v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CACR05-109

September 28, 2005

CARL WYNN AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CR04-55]

V. HON. CHRIS PIAZZA, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Carl Wynn appeals from his conviction for harassing communications. He challenges the sufficiency of the evidence proving that he was the person who left the harassing communications. We hold that the State presented sufficient evidence to support appellant's conviction. Thus, we affirm.

Appellant was charged with second-degree terroristic threatening and harassing communications.1 Darian Pellicciotti, a zoning officer for the City of Little Rock, testified that he came onto appellant's property after receiving a complaint about a commercial sign in a residential area. He saw a marquee sign on the property that read "warning, tree falling on house, do not enter." Pellicciotti also noticed a utility trailer with garbage in it in the front yard. Pellicciotti stated that he wrote a courtesy notice to have the sign and trailer removed. The notice was issued to "Lydia Sityar or Carol [sic] Wynn" at the address "518 Asbury Rd." He also knocked on the door, but after receiving no response, he left the notice and his business card in the door. He later received several harassing messages from someone purporting to be appellant.2 One message was sent the day Pellicciotti visited appellant's residence, and the others were dated the following Monday. In the messages, the caller identified himself as Carl Wynn, stated that his address was 518 Asbury, talked about the notice left on his residence concerning the sign and the trailer, and complained that he had the sign in his yard because he was trying to get a neighbor to cut down a tree that was in danger of falling on the neighbor's house. On cross-examination, Pellicciotti stated that he never made contact with or spoke to appellant. He also testified that he saw the tree that the caller referred to in his messages.

The trial court granted appellant's motion for directed verdict on the terroristic-threatening charge; however, it found him guilty of harassing communications. Appellant was sentenced to one day in jail, with credit for time served, and one year unsupervised probation. This appeal followed. For his sole point on appeal, appellant argues that the trial court erred in denying his motion to dismiss the harassing-communications charge. He does not dispute that the messages on Pellicciotti's machine were harassing communications; rather, he contends that the State presented insufficient evidence to show that he was the caller.

In a bench trial, a motion to dismiss is a challenge to the sufficiency of the evidence. Gamble v. State, 82 Ark. App. 216, 106 S.W.3d 801 (2003). We review the evidence in the light most favorable to the State. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. Only evidence supporting the verdict will be considered. Id. Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Von Holt v. State, 85 Ark. App. 308, 151 S.W.3d 1 (2004). Whether the evidence does so is a question for the trier of fact. Id.

Arkansas Code Annotated section 5-71-209 (Repl. 1997) provides in relevant part:

(a) A person commits the offense of harassing communications if, with the purpose to harass, annoy, or alarm another person, he:

(1) Communicates with a person, anonymously or otherwise, by telephone, telegraph, mail, or any other form of written communication, in a manner likely to harass, annoy, or cause alarm[.]

It is essential to every case that the accused be shown as the one who committed the crime; however, that connection can be inferred from all the facts and circumstances of the case. Williams v. State, 308 Ark. 620, 825 S.W.2d 826 (1992). Voice identification is an issue of fact, which may be established by both direct and circumstantial evidence. Jackson v. State, 12 Ark. App. 378, 677 S.W.2d 866 (1984) (citing United States v. Turner, 528 F.2d 143 (9th Cir. 1975)). Under federal law, self-identification by the speaker alone is insufficient to authenticate the source of a telephone call; however, self-identification is adequate if it is coupled with the existence of circumstances indicating that the speaker was in fact the person who called. United States v. Roberts, 22 F.3d 744 (7th Cir. 1994).

Here, the State produced evidence that the caller identified himself as appellant, stated that his address was 518 Asbury Road, acknowledged the courtesy notice placed at 518 Asbury Road, and expressed concern about the tree in his neighbor's yard (a concern confirmed by Pellicciotti). The only other reasonable hypothesis would be that someone else called Pellicciotti and recited the same information. A reasonable trier of fact could conclude that the evidence excluded this alternate hypothesis and that appellant was the caller on Pellicciotti's answering machine. Accordingly, we hold that the State presented sufficient evidence to find appellant guilty of harassing communications.

Affirmed.

Robbins and Crabtree, JJ., agree.

1 He was found guilty on both counts in Little Rock District Court. Appellant appealed the verdicts to Pulaski County Circuit Court, where a de novo bench trial was held on September 28, 2004.

2 While the audiotape of the messages was not transcribed, a copy of the tape was played before the court. We need not go into details about what the caller specifically said because appellant is only challenging evidence of the identity of the person who left the messages. Suffice to say, the caller used strong language.