Jason McKibbin v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION III

JASON McKIBBIN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-404

FEBRUARY 28, 2001

APPEAL FROM THE CONWAY COUNTY CIRCUIT COURT

[NO. CR 99-109]

HONORABLE PAUL EDWARD DANIELSON, CIRCUIT JUDGE

AFFIRMED

A jury sitting in the Conway County Circuit Court convicted the appellant, Jason McKibbin, of first-degree terroristic threatening and misdemeanor harassing communications, and sentenced him as a habitual offender to seven years' imprisonment in the Arkansas Department of Correction. On appeal, he challenges the sufficiency of evidence to support his conviction. We affirm.

Appellant made motions for directed verdicts at the close of the State's case and at the close of all the evidence. A directed-verdict motion is a challenge to the sufficiency of the evidence. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999). The test for determining sufficiency of the evidence is whether there is substantial evidence to support the verdict. Id. On appeal, we will review the evidence in the light most favorable to the appellee and sustain the conviction if there is any substantial evidence to support the verdict. Killian v.State, 60 Ark. App. 127, 959 S.W.2d 432 (1998). 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.

Appellant married Janet McKibbin, and they had a son who was the subject of a custody dispute after the couple divorced in 1996. While serving a sentence in prison on an unrelated conviction, appellant began to write letters to his ex-wife, Janet McKibbin, on a regular basis. In these letters, appellant would remind Ms. McKibbin how many days were left in his prison term, and that once he was out of prison he would "take care of business."

Arkansas Supreme Court Rule 4-2(a)(6) (2000) requires an appellant to abstract material parts of the record that are necessary to "an understanding of all questions presented to the Court for decision." The record on appeal is confined to what appellant has abstracted or has included in his addendum. See Ark. Sup. Ct. R. 4-2(a)(8); Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999). Here, appellant failed to abstract the series of letters that he sent to his ex-wife that represented threatening and harassing communications. These letters were central to the State's case against appellant. Appellant does not include the contents of these letters even though they were admitted into evidence. In addition, appellant's abstract fails to include the felony information filed against him. Appellant violated Ark. Sup. Ct. R. 4-2 by omitting these critical documents. Accordingly, appellant's challenge to the sufficiency of the evidence of his conviction is procedurally barred. See Huddleston, supra.

However, even if we reached the merits of this case, we would affirm appellant's conviction for terroristic threatening. Arkansas Code Annotated section 5-13-301(a)(1)(A) (Repl. 1997) states that a person commits terroristic threatening in the first degree, "if [w]ith the purpose of terrorizing another person, he threatens to cause death or serious physical injury." Ms. McKibbin received numerous phone calls per day from appellant. On one occasion, Ms. McKibbin told appellant that if he did not become a proper father to their son that she would have his parental rights terminated. Ms. McKibbin testified that appellant responded by saying, "I'll put a bullet in your brain, b----." Because of their history, Ms. McKibbin took appellant's threats seriously. We believe that Ms. McKibbin's testimony is sufficient evidence that appellant violated Ark. Code Ann. § 5-13-301(a)(1)(A).

We reviewed the letters contained in the record, which were written by appellant to Ms. McKibbin and find that they contain language wherein appellant threatens to cause death or serious physical injury to Ms. McKibbin. We may "go to the record" to affirm. See, e.g., Hosey v. Burgess, 319 Ark. 183, 890 S.W.2d 262 (1995); Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993). If we can find an item in the record, we may recognize its existence if the result is to affirm. Hood v. State, 329 Ark. 21, 947 S.W.2d 328 (1997). We did go to the record in this case, and we believe that these letters add force and character to the State's case as they tend to bolster Ms. McKibbin's testimony at trial.

Affirmed.

Hart and Jennings, JJ., agree.