Jayme James v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

JAYME JAMES

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CA05-340

November 30, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. JJD-04-1002]

HON. WILEY AUSTIN BRANTON JR.,

CIRCUIT JUDGE

REVERSED AND DISMISSED

Josephine Linker Hart, Judge

Jayme James was adjudicated a delinquent by the Pulaski County Circuit Court for second-degree terroristic threatening. On appeal, James argues that the evidence was insufficient to support her adjudication. We reverse and dismiss.

The State made its case on the testimony of a single witness. Greg Razenski, a Jacksonville High School resource officer, testified that on March 31, 2004, he was called to respond to a fight in the school auditorium. He made contact with James and another female, Tamara Roy, who had been fighting. When he approached James, she tried to run past him and "go at" Roy. He stopped James by grabbing her arm. Razenski separated the young women and escorted James to the school office. According to Razenski, en route to the office, "James stated that if she got suspended from school for this incident, she would, in her words, `really hurt Tamara Roy and beat her up.'" He stated that he had reason to believe the threat because James was "known to hang around" with a dance team that was "considered a gang by other students." On cross-examination, Razenski conceded that James

cooperated with him in going to the office, and that she was "visibly upset" at the time. He also stated that the alleged victim, Roy, was nineteen years old, and James was fifteen.

James's trial counsel moved to dismiss. She conceded that the State was not required to prove that the threat be communicated directly to the victim, but nonetheless argued that the State had failed to prove that in making the statement it was James's purpose to terrorize Roy. She urged the trial court to find analogous Knight v. State, 25 Ark. App. 353, 758 S.W.2d 12 (1988), a case in which we reversed a terroristic-threatening conviction where the record did not reveal that the appellant had an expectation that the uttered threat would be communicated to the intended victim. The trial court denied the motion. James did not put on a case.

On appeal, James argues that the trial court erred in denying her directed verdict motion because she did not possess the requisite culpable mental state. She asserts that the State failed to present sufficient evidence that, in making the statement, it was her "conscious object to terrorize or intensely frighten Ms. Tamara Roy." James urges us, as she did the trial court, to find that Knight v. State, is directly on point. She concedes that "it may very well be true that [her] remark was reckless," but under Knight, that mental state was insufficient to impose criminal liability. We agree.

While a delinquency adjudication is not a criminal conviction, it is based upon an allegation by the State that the juvenile has committed a certain crime; and therefore, we review challenges to the sufficiency of the evidence in the same way that we review criminal cases. Simmons v. State, 80 Ark. App. 426, 97 S.W.3d 421 (2003). When sufficiency of the evidence is challenged on appeal, the court considers only proof that tends to support the finding of delinquency, and it views the evidence in the light most favorable to the State. Id. The burden of proof in the trial court is beyond a reasonable doubt, and our standard ofreview is the same as it would be in a criminal case, i.e., whether the court's verdict is supported by substantial evidence. Id. Substantial evidence is that which is of sufficient force and character to compel a conclusion one way or the other without resorting to speculation or conjecture. Id. Under Arkansas Code Annotated § 5-13-301(b)(1) (Repl. 1997), "A person commits the offense of terroristic threatening in the second degree if, with the purpose of terrorizing another person, he threatens to cause physical injury or property damage to another person." While the statute does not require that the threat be communicated directly to the person threatened, the gravamen of the offense is communication, not utterance. Roberts v. State, 78 Ark. App.103, 78 S.W.3d 743 (2002).

Here there is no substantial evidence that James uttered her threat with the purpose of terrorizing the alleged victim. The record reveals that she made the remark out of earshot of the victim. The only person who apparently heard the remark was police officer Greg Razenski, and there is no evidence whereby, without resorting to speculation or conjecture, the trial court could find that James's purpose in communicating the threat to the resource officer was for the purpose of terrorizing Roy. Razenski did not testify that he passed the threat on to the alleged victim. Cf. Lowry v. State, ___ Ark. ___, ___ S.W.3d ___ (Oct. 20, 2005)(affirming a terroristic threatening conviction where there was testimony from the boyfriend of the victim's daughter that he repeated the threat to the victim). Furthermore, there was no proof that James had any expectation that he would do so. Regarding this latter point, we believe that the instant case is even more compelling than Knight v. State, supra. In Knight, the threat was not communicated directly to the victim, but rather overheard on a jail intercom system, of which the appellant in that case testified that he was aware. Here, there was no evidence, from James or anyone else, that she had any expectation whatsoever that the threat would be communicated to Roy. Accordingly, we reverse and dismiss.

Reversed and dismissed.

Pittman, C.J., and Gladwin, J., agree.