Charles Alan Winston v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION II

CHARLES ALAN WINSTON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-755

MAY 2, 2001

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

FOURTH DIVISION,

[NO. CR99-2553]

HONORABLE JOHN W. LANGSTON,

CIRCUIT JUDGE

AFFIRMED

Appellant Charles Alan Winston was convicted in Pulaski County Circuit Court of first-degree terroristic threatening and third-degree domestic battery after a bench trial. The trial judge sentenced appellant to eighteen months and six months, respectively, to run concurrently. Appellant's only point on appeal is the sufficiency of the State's proof with regard to the terroristic-threatening charge. We affirm.

Appellant moved for directed verdict at the close of the State's evidence and at the close of all the evidence. The State asserts that the challenge was not specific enough to preserve his challenge to the sufficiency of the evidence. We disagree and will address the merits of this appeal.

At the close of the State's evidence, appellant's counsel argued to the trial court that the State had failed to prove that appellant threatened to kill the victim with the purpose ofterrorizing Ms. Blackmon. By raising the issue of the level of intent that appellant possessed, he sufficiently presented this issue to the trial court so that we can now address his argument. On appellate review of the sufficiency of the evidence, we view the evidence in the light most favorable to the State. Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998). Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998). We do not, however, weigh the evidence presented at trial, as that is a matter for the fact finder, nor will we weigh the credibility of the witnesses. Id. Only evidence supporting the verdict will be considered. Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998).

The facts presented to the trial court are set out as follows in the light most favorable to the State. Appellant was charged with the two offenses, which allegedly occurred on May 15, 1999. The victim was his former girlfriend, Debra Blackmon. Appellant waived a jury trial, and the evidence was presented to the circuit judge as fact finder.

Ms. Blackmon was called to the stand and testified that appellant came to her workplace on May 15th, just days after she broke off their romantic relationship, bringing her food and drink, which she declined to accept. After she finished her work shift, she walked to her car where she found appellant waiting for her. After discussing again that they would have to be just friends, appellant asked for a ride home. Ms. Blackmon agreed to drop him off at his house in an area known as Sweet Home. She drove into the driveway, and appellant wanted her to come inside, which Ms. Blackmon refused. Appellant beganaccusing Ms. Blackmon of having a sexual relationship with the pastor of a church that appellant attended. His anger escalated, and appellant began to hit her in the chest and stomach with his closed fists. She exited the vehicle in an attempt to escape, and appellant came out and around the car pulling at her. Ms. Blackmon's shirt came off in the struggle, and appellant threw her to the ground and began to drag her across the gravel. Appellant's attack grew more violent in that he began biting Ms. Blackmon on both her arms, her neck, her back, her lip, and her finger, breaking the skin on her finger. Appellant then dragged Ms. Blackmon by her hair toward the house, and she began to cry out, "Jesus, Jesus, Jesus." In response, appellant told her, "Stop calling that name. I'll kill you. Stop calling that name." Appellant was able to get Ms. Blackmon into the house and was on top of her when help arrived.

Someone had called for law enforcement, and a sheriff's office sergeant reported to the residence. The sergeant testified at trial that as he arrived, a man was outside of the residence sitting in a lawn chair. The man pointed toward the house, and as the sergeant approached, he could hear a woman screaming. The sergeant also heard appellant yelling for "Pops," presumably the man outside, to close the door. The sergeant entered the house and saw appellant on top of a woman. He yelled at appellant. When appellant realized that the sergeant was in the house, he sat up, and the woman ran outside, screaming that appellant was trying to kill her.

Photographs of the various bite marks, the bloody and dirty knees, and the bloody finger were introduced as State's exhibits to demonstrate the existence of injuries toMs. Blackmon's body. They were received without objection, and this concluded the State's proof.

Appellant took the stand and testified in his own defense. He basically agreed that he had attacked his ex-girlfriend, but he specifically denied threatening to kill her.

Appellant's sole argument is that the State failed to prove that appellant possessed the requisite culpable mental status to be convicted. We disagree. A person commits the offense of terroristic threatening in the first degree if, with the purpose of terrorizing another person, he threatens to cause death or serious physical injury or substantial property damage to another person. Ark. Code Ann. § 5-13-301(a)(1)(A) (Repl. 1997). A person acts purposefully with respect to his conduct when it is his conscious object to engage in conduct of that nature or to cause such a result. Ark. Code Ann. § 5-2-202(1) (Repl. 1997). In order to prove the culpable mental state for this offense, the State had to prove that the defendant had the conscious object to fill the victim with intense fright. Johnson v. State, 71 Ark. App. 58, 25 S.W.3d 445 (2000). Though the State must prove that the defendant communicated the threat with the purpose of terrorizing another person, the State need not prove that the recipient of the threat was actually terrorized. Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988). Nor need the State prove that the conduct of the defendant intended to terrorize was pursued over a prolonged period of time. Warren v. State, 272 Ark. 231, 232-233, 613 S.W.2d 97, 98 (1981). Because of the obvious difficulty in ascertaining the actor's intent or state of mind, a presumption exists that a person intends the natural and probable consequences of his acts, and the factfinder may draw upon common knowledge andexperience to infer the defendant's intent from the circumstances. Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000).

Appellant asserts that viewing the evidence in the light most favorable to the State, the threat to kill Ms. Blackmon if she did not stop repeating the name Jesus was not stated with the purpose to instill a prolonged state of terror but only to make her be quiet. The Original Commentary to the statutory definition did mention that the statute's "main application involves conduct causing or calculated to cause a prolonged state of terror," which appellant cites as authority for his position. However, Commentary, while persuasive, is not controlling over the plain language of a statute. See, e.g., Reed v. State, 330 Ark. 645, 957 S.W.2d 174 (1997); Patrick v. State, 265 Ark. 334, 576 S.W.2d 191 (1979). The plain language of the statute does not require the prosecution to establish that a defendant intended to cause a prolonged state of terror. Moreover, our supreme court rejected outright the contention that the State must prove such conduct in Warren v. State, 272 Ark. 231, 232-233, 613 S.W.2d 97, 98 (1981). There, the justices of our supreme court held that "[w]hile we strictly construe a penal statute, we find no language which requires terrorizing over a prolonged period of time." Id. at 233. Appellant's argument that the Commentary means that the State must prove a mental state on the part of the perpetrator to cause a prolonged terror is simply untenable and is not consistent with the cases interpreting the statute. See also Davis v. State, 12 Ark. App. 79, 670 S.W.2d 472 (1984). Assuming for the sake of argument that the Commentary is binding, it would still not net the result appellant seeks. The Commentary suggests the "main application" of the statute, but it does not suggest thatthis is the only application, and we certainly do not agree that any such restricted interpretation is warranted.

The evidence that he communicated the threat to kill her if she did not stop repeating "Jesus" is sufficient to sustain his conviction of first-degree terroristic threatening.

Affirmed.

Vaught and Crabtree, JJ., agree.