Christopher Ivey v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CHRISTOPHER IVEY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-891

September 29, 2004

APPEAL FROM THE CIRCUIT COURT OF HOT SPRING COUNTY

[NO. CR-02-209-2]

HONORABLE PHILLIP H. SHIRRON,

JUDGE

AFFIRMED

Terry Crabtree, Judge

The appellant, Christopher Ivey, was found guilty in a jury trial of terroristic threatening in the first degree for which he was sentenced to three years in prison. Appellant raises two issues on appeal. He contends that the trial court erred in denying his motion for a directed verdict and by refusing to instruct the jury on the lesser-included offense of second-degree terroristic threatening. We find no error and affirm.

A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. Clements v. State, 80 Ark. App. 137, 91 S.W.3d 532 (2002). When reviewing the denial of a directed verdict, we will look at the evidence in the light most favorable to the State, considering only the evidence that supports the verdict, and will affirm if there is substantial evidence to support the verdict. Swaim v. State, 78 Ark. App. 176, 79 S.W.3d 853 (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. Barnett v. State, 346 Ark. 11, 53 S.W.3d 527 (2001).

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)(B) (Repl. 1997). The conduct prohibited by this section is the communication of a threat with the purpose of terrorizing another. Lewis v. State, 73 Ark. App. 417, 44 S.W.3d 759 (2001). That is, it must be the accused's conscious object to cause fright. Johnson v. State, 71 Ark. App. 58, 25 S.W.3d 445 (2000). It is not necessary that the recipient of the threat actually be terrorized. Lewis v. State, supra. Nor does the statute require that it be shown that the accused has the immediate ability to carry out the threat. Knight v. State, 25 Ark. App. 353, 758 S.W.2d 12 (1988). The statute encompasses not only present threats, but future threats as well. Walker v. State, 13 Ark. App. 124, 680 S.W.2d 915 (1984).

The record discloses that appellant's marriage to Crystal Ivey ended in divorce in May 2002. The divorce was acrimonious, and Ms. Ivey obtained custody of their two children. In her testimony, Ms. Ivey stated that she had previously obtained no-contact orders against appellant for the protection of herself and the children. The first was obtained at the time of their separation, when appellant hit her, choked her, slammed her to the floor, and held her and the children at bay with a sawed-off shotgun. The second order was issued in connection with an incident that resulted in appellant being convicted of terroristic threatening and criminal mischief.

Deborah Williams, Ms. Ivey's mother, testified that she received a phone call from appellant at 6:00 a.m. on August 16, 2002, in which he was ranting and raving about not being able to get in touch with Ms. Ivey. Ms. Williams recounted their conversation as follows:

And he said, `Well, I know she's with somebody, and she can't have my kids around anybody else. When we said till death do us part, we meant it, and she's going to find out I meant it.' And he told me that he was in trouble with the law, and he was a wanted man, and he said, `But everything I've done so far is penny-ante stuff, and I've never made the front page of the paper.' And I said, `What are you talking about?' He said, `Well, I'm fixing to make the front page of the paper." And he said that he had a new high-powered rifle with a scope and that he was going to take out - - his exact words was, `I'm going to take out you five, dear, and that will put me on the front page.' And I said, `What are you talking about?' He said, `The five of you, you, your husband, that blankety-blank daughter of yours, and them so-and-so kids, and they'll have to put me on the front page of the paper.' And I said, `Chris, don't be calling and making these idle threats like this, you need to stop, this is not doing any good.' He said, `This is not an idle threat, I had one of you in my scope yesterday, but I've gotto do it all at once and that way I know I will get on the front page of the paper. I will take care of all of you at one time.' At that point, I hung up on him and called the sheriff's department.

Ms. Williams testified that she believed appellant and was terrified. She had previously overheard appellant tell Ms. Ivey that he was going to "smoke" her. She said that appellant had also threatened to kill her and her husband. She had seen marks on Ms. Ivey from where appellant had struck her, and when Ms. Ivey was pregnant, she saw appellant push her down in a mud puddle.

Jimmy Dodson was in jail for failing to register as a sex offender in July 2002. He testified that appellant, who was also incarcerated, told him that it would probably be easy to take the kids and leave with them, shoot them, and then turn around and shoot himself afterwards.

In arguing that the evidence was insufficient, appellant points to testimony presented in his defense that he and Ms. Ivey had spent time together and had been intimate since the August 16 phone conversation. He contends that the testimony of Ms. Williams and Ms. Ivey was not credible because they denied that this was so. This argument is not convincing, because the credibility of the witnesses is an issue for the jury and not this court. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003). Appellant also contends that there is no evidence that he made the statements to Ms. Williams with the conscious object to terrorize anyone. Appellant fails to recognize that a criminal defendant's intent is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Robinson v. State, 353 Ark. 372, 108 S.W.3d 622 (2003). We cannot say that substantial evidence is lacking in this regard.

Appellant's second point is that the trial court erred in refusing to instruct the jury on the lesser-included offense of second-degree terroristic threatening. This issue provides no basis for reversal because appellant did not proffer the requested instruction. The failure to proffer a typewritten copy of the proposed instruction precludes us from considering the issue on appeal. State v. Hagan-Sherwin, ___ Ark. ___, ___ S.W.3d ___ (April 8, 2004). Even had the issue been preserved, it is without merit. In his testimony, appellant admitted placing the phone call to Ms. Williams, but he denied making any threatening statements. We will affirm a trial court's decision to exclude an instruction on a lesser-included offense if there is no rational basis for giving the instruction. See Isom v. State, ___ Ark. ___, ___ S.W.3d ___ (Feb. 19, 2004). Where a defendant claims that he was entirely innocent of the charged offense, no rational basis exists to instruct the jury on a lesser-included offense, because the jury need only determine whether the defendant is guilty of the crime charged. Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001).

Affirmed.

Bird and Roaf, JJ., agree.