Terry Lynn Huey v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

TERRY LYNN HUEY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-651

February 25, 2004

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT

[NO. CR-02-1249]

HON. WILLIAM A. STOREY,

CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

A jury found appellant, Terry Lynn Huey, guilty of third-degree domestic battery (second offense), terroristic threatening, and aggravated assault, and he was sentenced to six years for each conviction, which the court ran consecutively.1 On appeal, appellant challenges the sufficiency of the evidence to support the convictions and further argues that the circuit court erred in admitting into evidence a letter appellant authored. We affirm.

The charges appellant faced all stemmed from an altercation with Elizabeth Blake, who was his wife at the time the crimes occurred. She testified that on June 24, 2002, she arrived home from work and leaned over to kiss appellant, who was lying on the bed in the bedroom, when appellant grabbed her and flipped her over the bed onto the floor. Appellant sat on her and held her down with his arm on her neck. Blake told appellant that he was hurting her, and he replied, "Hurting you, bitch, I'm going to kill you."

Appellant repeatedly punched her in the face and head. Blake crawled away, but appellant sat on her stomach with his knees on her forearms and hit and choked her. Appellant cursed her, telling her that he would not go back to jail for another domestic battery and that this time it would be for murder. He also told her that she had not believed him when he said he would kill her if she called the police again. Appellant had two prior convictions for domestic battery against Blake, and Blake testified that on several occasions appellant had made statements to her about her having called the police.

Appellant continued to punch her in the face and head. He choked her while she also choked on the blood from her nose. As she lost consciousness, he told her to say goodbye to her maker because she was going to die. When she regained consciousness, she opened her eyes, and appellant struck her again, waking her fully. She testified that she was choked unconscious twice.

The obscenities, hitting, and threats to kill her continued, and he said over and over that she did not believe that he would kill her if she called the police and that she would believe it now. He retrieved a butcher knife, sat her on the side of the bed, and said, "I'm going to have to figure out what to do with you, bitch." Blake decided that to save her life, she would try to gain his trust by telling him anything she could think of to stop him from killing her.

Blake told appellant that it had not gone too far, that they could burn her bloody clothes, move to another city, and stop what was happening. Appellant told her to shut up, that he did not know what he was going to do yet, and that he thought he would have to kill her. Blake told appellant that she loved him, that she would not call the police if he would just stop now, and that it had not gone too far. Appellant replied that he would have to think about it.

He told her that he had to go to the liquor store and that he would gag her, hog tie her, and throw her into the closet while he was gone. She begged him not to do this and asked him to take her with him, telling him that she would not scream or try to jump out of the car. He took her to another room at knife point, and with clear packaging tape, he wrapped her wrists together and her ankles together. After being taped for forty-five minutes, appellant cut the tape and walked her at knife point to the bathroom and a bedroom and allowed her to wash her face and change her clothes. He told Blake that he would walk her to the car and take her to the liquor store with him and that he would again tape her wrists when they got in the car. He had the knife, and he said that if she made one move, he would kill her.

Appellant walked her to the car and placed her in the passenger seat, but she left the door slightly ajar. Appellant walked to the other side of the car, and as he started to enter the car, she exited the car and ran to a neighbor's house. The police were summoned, and appellant was later arrested and incarcerated.

At the close of the State's case, counsel for appellant argued as follows:

Your Honor, at this time we'd like to make a directed verdict motion on all four counts basically on a lack of testimony and evidence to substantiate any of the four counts even enough to go to the jury on these matters, that includes all four counts of domestic battery, terroristic threatening, and the only testimony substantiating any of these charges or establishing these charges came from the victim, she was the only one that substantiated any of these charges.

The court denied the motion. At the close of the case, appellant renewed his motion for a directed verdict, arguing as follows:

[A]t this time we would renew our motion for a directed verdict on the basis of insufficiency of the evidence to the four charges pending against [appellant] today and also the prior stated grounds which were stated on the record at the bench earlier....

The court denied this motion as well.

On appeal, appellant raises three specific arguments in support of his claim that his convictions were not supported by substantial evidence. First, he argues that the third-degree domestic-battery conviction was not supported by substantial evidence because his own testimony established that he acted in self-defense and only used the force necessary to restrain Blake. Second, he argues that there was insufficient evidence to support his conviction for first-degree terroristic threatening because there was no evidence that appellant intended to cause Blake any fear. Third, he argues that there was insufficient evidence to support his aggravated-assault conviction because the State failed to prove that he created a substantial danger to Blake while wielding the knife.

Appellant's arguments, however, are not preserved for appellate review. As is apparent from reviewing appellant's motions for directed verdict, the arguments he now raises on appeal challenging the sufficiency of the evidence were not raised at trial during his motions for directed verdict. We do not address challenges to the sufficiency of the evidence that were not part of a directed-verdict motion at trial and are raised for the first time on appeal. Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997). Consequently, we affirm on this point.

Also introduced into evidence was a letter signed and written by appellant to his two children. In pertinent part, the letter read, "I've gotten meaner toward people who cross me over the last few years. That's one of the reasons I'm in jail now." Appellant objected to the admission of the letter into evidence, arguing that it was not relevant and constituted hearsay. The circuit court ruled that it was not hearsay because it was an admission and that it was relevant to show appellant's intent and motive.

Appellant argues on appeal that the circuit court erred in admitting the letter into evidence because it was hearsay and not relevant. He contends that it is unclear that the letter was a "statement against interest," as "the letter was written some time after the crime was committed and the implication of the letter is vague." He asserts that the letter references why he was in jail and does not constitute an admission that he committed a specific act or a threat to commit a future act. He contends that the letter, written after the crimes occurred, was too remote in time and was too vague to have had any probative value regarding his mental state for the crimes charged. And finally, citing Rule 403 of the Arkansas Rules of Evidence, appellant argues that the letter should not have been admitted into evidence because its probative value was substantially outweighed by the danger of unfair prejudice.

Generally, all relevant evidence is admissible. Ark. R. Evid. 402. `"Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ark. R. Evid. 401. A trial court's decision regarding relevancy is entitled to great weight and will be reversed only if the court abused its discretion. Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993). Further, the State may introduce evidence showing all of the circumstances that explain the act, illustrate the accused's state of mind, or show a motive for the crime. Id. We also note that "[a] statement is not hearsay if ... [t]he statement is offered against a party and is ... his own statement...." Ark. R. Evid. 801(d)(2)(ii). Blake testified that during the attack, appellant told her that she had not believed him when he said he would kill her if she called the police again. Appellant's letter-where he stated that he had "gotten meaner toward people who cross me" and that this was "one of the reasons" he was in jail-was relevant, as it had a tendency to make the existence of a fact of consequence, that is, appellant's motive for the attack on Blake and his intent, more probable than it would have been without the letter. Specifically, he had "gotten meaner" to Blake because she had crossed him and that he was incarcerated as a result of being "meaner," that is, attacking Blake. Further, we conclude that the letter was neither too remote in time nor too vague to be relevant, as it was written by appellant while incarcerated for his attack on Blake and spoke to "one of the reasons" he was in jail. And in accordance with Rule 801(d)(2)(ii), the letter was not hearsay, as it was offered against appellant as a party-opponent and was his own statement. Finally, while appellant objected below on relevancy grounds, he did not object on the basis of Rule 403. A relevancy objection does not preserve a Rule 403 objection. See Barrett v. State, _ Ark. _, 119 S.W.3d 485(2003). Because this argument is being made for the first time on appeal, it is not preserved for appellate review. Id.

Affirmed.

Crabtree and Roaf, JJ., agree.

1 Appellant was acquitted of kidnapping.