Jones v. State
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Cite as 2009 Ark. App. 135 (unpublished)
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CACR08-802
Opinion Delivered FEBRUARY 25, 2009
FRED JONES
APPELLANT
V.
APPEAL FROM THE POINSETT
COUNTY CIRCUIT COURT,
[NO. CR2007-227]
STATE OF ARKANSAS
HONORABLE VICTOR HILL, JUDGE
APPELLEE
AFFIRMED
KAREN R. BAKER, Judge
A jury in Poinsett County Circuit Court convicted appellant Fred Jones of attempted
first-degree murder of his ex-wife, Elizabeth Ann Jones. He was sentenced to twenty-eight
years’ imprisonment in the Arkansas Department of Correction. Appellant presents three
arguments for reversal. First, he challenges the sufficiency of the evidence to support his
conviction. Second, he asserts that the trial court erred in denying his motion for a mistrial.
Third, he asserts that the trial court erred in allowing the State to comment during closing
argument that the evidence was “uncontroverted.” Finding no error, we affirm.
I. Sufficiency of the Evidence
In his first point on appeal, appellant challenges the trial court’s denial of his motion
for a directed verdict. A motion for directed verdict is treated as a challenge to the
Cite as 2009 Ark. App. 135 (unpublished)
sufficiency of the evidence. Gikonyo v. State, 102 Ark. App. 223, 283 S.W.3d 631 (2008).
The test for such motions is whether the verdict is supported by substantial evidence, direct
or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision
to compel a conclusion one way or another and pass beyond mere suspicion or conjecture.
Id. On appeal, we review the evidence in the light most favorable to the appellee and
consider only the evidence that supports the verdict. Id. The credibility of witnesses is an
issue for the fact finder and not for the appellate court. Id. The fact finder may resolve
questions of conflicting testimony and inconsistent evidence and may choose to believe the
State’s account of the facts rather than the defendant’s. Id.
A person commits first degree murder if, “[w]ith the purpose of causing death of
another person, he causes the death of another person.” Ark. Code Ann. § 5-10-102(a)(2)
(Repl. 2006). A person attempts to commit an offense if he “purposely engages in conduct
that [c]onstitutes a substantial step in a course of conduct intended to culminate in the
commission of an offense.” Ark. Code Ann. § 5-3-201(a)(2) (Repl. 2006). Arkansas Code
Annotated section 5-2-202(1) (Repl. 2006), states that a person acts purposely with respect
to his conduct when it is the person’s “conscious object to engage in conduct of that nature
or to cause the result.”
Appellant sought dismissal below, arguing that the State failed to prove, either by
direct or circumstantial evidence, that he acted with the requisite intent to commit attempted
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first-degree murder. Appellant pointed out that all or some of Elizabeth’s injuries could have
been sustained when she fell into the water. A criminal defendant’s intent or state of mind
is seldom capable of proof by direct evidence and must usually be inferred from the
circumstances of the crime. DeShazer v. State, 94 Ark. App. 363, 230 S.W.3d 285 (2006).
Because intent cannot be proven by direct evidence, the fact finder is allowed to draw upon
common knowledge and experience to infer it from the circumstances. Id. Due to the
difficulty in ascertaining a defendant’s intent or state of mind, a presumption exists that a
person intends the natural and probable consequences of his or her acts. Id.
A review of all the evidence reveals that on April 19, 2007, appellant brought lunch
to his ex-wife, Elizabeth, at her place of work. Elizabeth had previously explained to
appellant that she had only twenty minutes for lunch that day and that they would have to eat
in the parking lot. However, after Elizabeth climbed into appellant’s truck, appellant drove
off. While driving, appellant asked for Elizabeth’s cellular phone. Elizabeth testified that
he put the phone between his legs and would not give it back to her. Appellant drove
Elizabeth to a secluded, gravel road. Elizabeth testified that while traveling down the road,
appellant began saying things such as, “I am not good enough to sleep at your house or on
your floor.” She explained that appellant had asked to stay at her house the night before, but
she did not allow him to do so. Appellant then pulled to the middle of a bridge and told
Elizabeth to get out of the truck. Appellant exited the truck and threw her cellular phone into
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Cite as 2009 Ark. App. 135 (unpublished)
the bed of the truck. Elizabeth testified that at this point appellant’s demeanor changed. He
became angry. He walked around to the passenger side of the truck where Elizabeth was
sitting. As he approached her side of the vehicle, she saw a knife in appellant’s hand. At that
point, she began to run from appellant.
Elizabeth made it only to the end of the bridge. It was there that appellant caught her
and threw her to the ground, breaking her hip and injuring her knee. Elizabeth tried to get
up, but appellant dragged her back to the middle of the bridge, telling her that she now knew
what it was like to beg. Once the two were back to appellant’s truck, Elizabeth could feel
blood running down her face. She testified that “the next thing [she] knew he was stabbing
[her].” Elizabeth passed out momentarily. However, when she was regaining consciousness,
she felt appellant push her over the edge of the bridge into the water below. Although she
was unable to swim, when she hit the water, she was able to secure herself on a stump. She
testified that appellant threw her a rope, but she would not take the rope, as she did not want
to give him “a second chance to do the job he was trying to do.”
It was at this point that Charles Strange and David Holder heard Elizabeth’s cry for
help. Strange and Holder were driving nearby when they heard her cries, and they stopped
to help. Both men saw appellant attempting to throw Elizabeth the rope. Holder also noticed
fresh blood on the bridge. When appellant learned that Strange and Holder had called the
police, however, he threw the rope at Elizabeth, told her to “get herself out of the water,” and
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Cite as 2009 Ark. App. 135 (unpublished)
left the scene. Holder testified that Elizabeth told him that appellant had stabbed her.
Upon their arrival at the scene, EMTs pulled Elizabeth from the water. Cordel Laden
testified he could see approximately ten puncture wounds around her neck and shoulder area
and several wounds to her right arm and hand. He testified Elizabeth had lost an extensive
amount of blood and was suffering from the effects of submersion in the very cold water.
He attempted to apply pressure to her wounds in order to stop the bleeding, while his partner,
Hunter Wright, tended to the injuries to her leg. Laden testified that her “wounds and
lacerations were consistent with knife wounds.” Elizabeth told Laden that “he stabbed [her]”
and that she had been thrown off the bridge. After preparation and treatment by the EMTs,
Elizabeth was flown to a Memphis hospital trauma center.
Poinsett County Sheriff’s Detective Mark Robinson testified that he photographed the
wounds on Elizabeth’s neck and shoulder area. He stated that she had approximately fourteen
puncture wounds. He stated that the wounds appeared to be from a thin-bladed instrument.
He also photographed the blood stains on the bridge and blood splatters that were found from
the area around the hood of appellant’s truck to the front bumper. Hope Burdette, a
dispatcher with the Marked Tree Police Department, testified that on April 19, 2007,
appellant came into the department and told Burdette that he and Elizabeth had gotten into
a fight and that she had fallen off a bridge. Sergeant Brad Kirby testified that appellant also
told him about the fight and that Elizabeth had fallen off the bridge.
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Cite as 2009 Ark. App. 135 (unpublished)
From these facts, the jury could have reasonably found that appellant had the requisite
intent to commit attempted first-degree murder.
Appellant took Elizabeth from her
workplace to a remote location. He tricked her into giving him her cell phone. While on the
secluded bridge, appellant’s demeanor changed; he became angry and produced a knife. He
stabbed Elizabeth approximately fourteen times in the back of the neck and shoulders and
pushed her off the bridge into the river. When he discovered that a passerby had heard
Elizabeth’s cries for help and notified police, appellant left the scene while Elizabeth was
injured and remained in the water unable to swim. Elizabeth testified unequivocally that
appellant broke her hip, injured her knee, stabbed her numerous times, and threw her off the
bridge. She told Strange and Holder that appellant stabbed her. Blood was found on
appellant’s truck and on the bridge. Appellant went to the police department and informed
officers that he and his ex-wife got into an argument and that she fell off a bridge. This
evidence, when viewed in the light most favorable to the State, is sufficient to prove that
appellant possessed the requisite state of mind for attempted first-degree murder of his exwife, Elizabeth.
II. Prosecutor’s Questioning of Appellant’s Character Witness During Sentencing
For his second argument, appellant contends that the trial court erred in refusing to
grant a mistrial based on remarks made by the prosecutor during the sentencing phase of the
trial. During the sentencing phase, the prosecutor was questioning appellant’s brother, Joe,
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Cite as 2009 Ark. App. 135 (unpublished)
one of appellant’s character witnesses. The prosecutor asked Joe whether he had seen the
blood stains on the bridge. The following colloquy took place:
P ROSECUTOR:
And again, you weren’t there when all that went on.
J OE J ONES:
No.
P ROSECUTOR:
Didn’t hear her screaming for help did you?
J OE J ONES:
No.
P ROSECUTOR:
Did you see the blood stains on the bridge?
D EFENSE C OUNSEL: Your Honor, note my objection again. May we approach, Your
Honor?
T HE C OURT: All right. Sustained. Mr. [Prosecutor], you made your point.
Appellant objected and moved for a mistrial, arguing to the trial court that the prosecutor was
asking the questions solely to “inflame and prejudice this jury.” The circuit court denied the
motion. Appellant did not request that a cautionary instruction be read to the jury.
It is well settled that a mistrial is an extreme remedy that should be granted only when
the error is beyond repair and cannot be corrected by curative relief. Brown v. State, 74 Ark.
App. 281, 47 S.W.3d 314 (2001). A trial court has wide discretion in granting or denying a
motion for a mistrial, and the appellate court will not disturb the court’s decision absent an
abuse of discretion or manifest prejudice to the movant. Id. However, among the factors we
consider on appeal is whether the defendant requested a cautionary instruction or admonition
to the jury, and the failure of the defense to request an admonition may negate the mistrial
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Cite as 2009 Ark. App. 135 (unpublished)
motion. Rohrbach v. State, 374 Ark. 271, 287 S.W.3d 590 (2008).
Appellant asserts that he was prejudiced by the prosecutor’s comments as they were
made solely to “inflame” the jury. Here, however, appellant would not necessarily be entitled
to the relief he requests on appeal because appellant failed to request that the jury be
admonished to disregard the prosecutor’s comment. See Weaver v. State, 324 Ark. 290, 920
S.W.2d 491 (1996) (when there is doubt as to whether the trial court abused its discretion,
a failure to request an admonition will negate a mistrial motion); see Moore v. State, 87 Ark.
App. 385, 192 S.W.3d 271 (2004) (stating that it is the defendant’s obligation to request a
curing instruction, and a failure to request one will not inure to the defendant’s benefit on
appeal).
Moreover, appellant failed to demonstrate that he was prejudiced by the
prosecutor’s comments. As the State points out, appellant’s twenty-eight-year sentence was
within the statutory range and was less than the maximum sentence within the statutory range
for a Class A felony. See Ark. Code Ann. § 5-4-401(a)(2) (Repl. 2006) (stating that the
statutory range for a Class A felony is not less than six years nor more than thirty years). A
defendant who has received a sentence within the statutory range short of the maximum
sentence cannot show prejudice from the sentence itself. Buckley v. State, 349 Ark. 53, 76
S.W.3d 825 (2002) (citing Young v. State, 287 Ark. 361, 699 S.W.2d 398 (1985)). We hold
that the trial court did not abuse its discretion in denying appellant’s motion for a mistrial.
III. Prosecutor’s Comments During Closing Argument
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Cite as 2009 Ark. App. 135 (unpublished)
For appellant’s final argument on appeal, he contends that the trial court erred in
allowing the prosecutor to comment that the evidence was uncontroverted, a comment that
was an improper reference to the fact that appellant did not testify on his own behalf. We
do not address the merits of this argument because appellant failed to make a
contemporaneous objection below.
This court was presented with a similar issue in Kelley v. State, 103 Ark. App. 110,
286 S.W.3d 746 (2008). There this court stated:
In Smith v. State, 330 Ark. 50, 53–54, 953 S.W.2d 870, 871–72 (1997), our supreme
court held:
In order to be timely, an objection must be contemporaneous, or nearly so,
with the alleged error. Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996). To
preserve a point for appeal, a proper objection must be asserted at the first
opportunity after the matter to which objection has been made occurs. Asher
v. State, 303 Ark. 202, 795 S.W.2d 350 (1990), cert. denied, 498 U.S. 1048
(1991). Where the allegation of error concerns a statement made by the
prosecutor during argument, the defendant must make an immediate objection
to the statement at issue in order to preserve the allegation for appeal. Wallace
v. State, 53 Ark. App. 199, 920 S.W.2d 864 (1996) (citing Butler Mfg. Co. v.
Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987)).
....
Likewise, motions for a mistrial must be made at the first opportunity. Smith,
330 Ark. at 54, 953 S.W.2d at 872 (citing Esmeyer v. State, 325 Ark. 491, 930
S.W.2d 302 (1996); Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996);
Johnson v. State, 325 Ark. 197, 926 S.W.2d 837 (1996)). In Ronning v. State,
295 Ark. 228, 748 S.W.2d 633 (1988), the defendant argued on appeal that the
prosecutor’s closing argument commented on the defendant’s failure to testify
as evidence of guilt; however, our supreme court held that because the
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defendant failed to make a contemporaneous objection at trial, the argument
was not preserved for our review. In Ronning, the court stated: “In hundreds
of cases we have repeated the fundamental rule that an argument for reversal
will not be considered in the absence of an appropriate objection in the trial
court.” Id. at 235, 748 S.W.2d at 637.
Kelley, 103 Ark. App. at 119–20, 286 S.W.3d at 752–53 (2008).
Here, the prosecutor’s allegedly improper comment was made during his closing
argument. Appellant failed to make any objection to the comment or move for a mistrial.
Accordingly, this issue was not preserved for our review, and we do not address it.
Based on the foregoing, we affirm appellant’s conviction.
G RUBER, J., agrees.
P ITTMAN, J., concurs.
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