C. C. v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION III

C. C.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CA02-466

March 12, 2003

APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, CHICKASAWBA DISTRICT

[NO. J-99-19]

HON. RALPH E. WILSON, JR.,

JUDGE

AFFIRMED

The appellant, C. C., was adjudged to be a juvenile delinquent for committing six counts of terroristic threatening in the first degree and one count of threatening a bombing. Following this adjudication he was committed for an indefinite time to the custody of the Division of Youth Services. From that decision, comes this appeal.

For reversal, appellant contends that there is no substantial evidence to support a finding that he committed terroristic threatening or threatened a bombing. He also contends that the trial court erred in admitting into evidence a threatening note and a tape recording of a telephoned bomb threat. We find no error, and we affirm.

We first address the sufficiency of the evidence. Although a delinquency adjudication is not a criminal conviction, our standard of review is the same as it would be in a criminal

case, i.e., whether the court's verdict is supported by substantial evidence. Roberts v. State, 78 Ark. App. 103, 78 S.W.3d 743 (2002). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. Pack v. State, 73 Ark. App. 123, 41 S.W.3d 409 (2001). In determining whether there is substantial evidence, we do not weigh the evidence presented at trial, as that is a matter for the fact-finder, but instead we view the evidence in the light most favorable to the appellee, considering only that evidence tending to support the judgment. Id.

The charges against appellant arose out of two distinct incidents. The first incident involved death threats against various persons associated with the high school appellant attended. The second involved a telephoned bomb threat against a retail store across the street from the motel where appellant and his father resided.

In regard to the first incident, there was evidence that appellant was a student at Blytheville High School, where he had an extensive history of disciplinary problems that were becoming more blatant as the school year progressed. On January 16, 2002, appellant was suspended from school for seven days for disorderly conduct. Appellant nevertheless returned to school the next day, January 17. At 8:05 a.m., a teacher took appellant to the outer office of the principal, Mr. Branch. Mr. Branch escorted appellant to his inner office and left him there alone while he conferred with the teacher who had brought appellant to see him.

Mr. Branch returned to his inner office and informed appellant that he had been given written notice of suspension and that he should not be in school. Appellant responded, "Fuck this shit. That's bullshit." Mr. Branch then told appellant that he was adding three more days to his suspension. Appellant left Mr. Branch's office in a rush, but returned a minute later and told Mr. Branch, "I'm going home, I'm going to get my gun and I'm coming back up here and I'm going to kill you." Appellant slammed the office door and left. The police were called, and appellant circled the halls as Mr. Branch and other school officials attempted to convince appellant to return to the office. Police officers then arrived, arrested appellant, and asked Mr. Branch to execute an affidavit. Mr. Branch returned to his office to do so. After executing the affidavit, Mr. Branch noticed that there was a folded piece of paper on his desk that had not been there before appellant entered his office. The paper was a handwritten note that read as follows:

I'm Gonna Kill List

I'm Gonna Kill: Mr. Branch

Mr. Clay

Mr. Coleman

Mr. Guy

Mr. Shannon

Mr. Edmonds

and more in the school

I am dead serious

Get it dead serious

I'm gonna kill their

families and their babies

and watch them bleed

these are the facts

C.C.

Mr. Branch's secretary testified that Mr. Branch was a very neat person who would notice something out of place on his desk, that only she and Mr. Branch had been in the office before appellant arrived, and that the note had not been there beforehand. Appellant's seventh-grade teacher testified that she was familiar with the peculiar neatness and organization of appellant's handwriting, examined the note, and identified the handwriting as appellant's.

With respect to the second incident, there was evidence that the Blytheville Police Department received a 911 call at 3:30 on January 30, 2002, in which the caller stated: "There's a bomb ready to go off at Wal-Mart." The dispatcher asked where the bomb was, and the caller said "ten minutes." Police officers were dispatched to Wal-Mart. The police department's records indicated that the call had come from a motel called the Drury Inn. Appellant and his father were occupants of the Drury Inn at that time, and the windows of their room faced the Wal-Mart. An employee of the motel testified that appellant was at the Inn when the telephone call was made. That employee and another witness testified that they were familiar with appellant's voice, and identified the voice on the tape as appellant's.

Appellant argues that the evidence against appellant is not substantial because it is circumstantial. We do not agree. Circumstantial evidence may constitute substantial evidence. Armstrong v. State, 45 Ark. App. 72, 871 S.W.2d 420 (1994). Although circumstantial evidence must exclude every other reasonable hypothesis consistent withinnocence, it is up to the fact-finder to determine whether every other reasonable hypothesis has been excluded. Cigainero v. State, 310 Ark. 504, 838 S.W.2d 361 (1992). The responsibility of the appellate court is to determine whether the fact-finder could have reached this conclusion without resort to speculation or conjecture. Drew v. State, 8 Ark. App. 120, 648 S.W.2d 836 (1983). On this evidence, we hold that a fact-finder could, without resort to speculation or conjecture, reasonably conclude that appellant had committed the acts he was alleged to have committed, and that appellant's adjudication of delinquency is therefore supported by substantial evidence.

Nor do we believe that the trial court erred in admitting the threatening note and the tape recording of the bomb threat into evidence. The thrust of appellant's argument regarding the note is that the teachers were impermissibly allowed to compare the threatening note to samples of appellant's schoolwork writing submitted to them. We find no error. Pursuant to Ark. R. Evid. 901(b)(2), nonexpert opinion as to the genuineness of handwriting is admissible where it is based on familiarity not acquired for the purpose of litigation. Here the teachers' familiarity with appellant's handwriting was acquired during the course of ordinary schoolwork. Furthermore, the trial judge himself, as the trier of fact, was permitted to compare the threatening note to the examples of appellant's schoolwork authenticated by the teachers under Rule 901(b)(3). As to the recorded telephone conversation, it was properly admissible under Rule 901(b)(5) in light of the opinion evidence offered connecting it with the appellant as the speaker. Appellant also argues that the tape recording was improperly admitted because it was admitted into evidence beforeappellant's voice was identified by testimony of witnesses familiar with it. Although we agree that identification of appellant's voice was necessary to provide a foundation for admission of the tape recording, that was provided in this case, and the sole remaining question is merely a matter of the order in which the evidence was admitted. The trial court had discretion to admit the tape subject to the introduction of evidence linking it to appellant under Rule 104(b), and we find no error on this point. See Patterson v. State, 267 Ark. 436, 591 S.W.2d 356 (1979).

Affirmed.

Robbins and Crabtree, JJ., agree.