Turner v. State
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Cite as 2010 Ark. App. 214
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CACR09-897
Opinion Delivered
MATTHEW TURNER
APPELLANT
V.
STATE OF ARKANSAS
APPELLEE
March 3, 2010
APPEAL FROM THE LONOKE
COUNTY CIRCUIT COURT
[CR-2008-469]
HONORABLE BARBARA ELMORE,
JUDGE
REVERSED & DISMISSED
DAVID M. GLOVER, Judge
Appellant, Matthew Turner, was convicted in a bench trial of first-degree terroristic
threatening and sentenced to five years in prison. On appeal, Turner argues that the trial
court erred in denying his motion for directed verdict. We hold that this case must be
reversed.
At trial, the State presented the testimony of Tammy Chambers, who had dated and
lived with Turner. Chambers testified that Turner had children with his ex-wife, Ledya
Anderson. Chambers said that during the year she and Turner lived together, she spoke to
Anderson only in reference to the children. She testified that on the afternoon of May 3,
2008, she was getting out of the shower when she overheard Turner on the bedroom
Cite as 2010 Ark. App. 214
telephone saying that “she was not going to keep his children from him.” Chambers said that
the only person with whom Turner had children was Ledya; that when Turner hung up the
phone, he was very mad and made the statement to Chambers that “the b***h was going to
be dead in the ditch next week; he was going to hire a crack head; and that he would be
nowhere around for anybody to blame him” and that “he should’ve had a bigger gun and did
it right the first time.” Chambers testified that Turner had previously shot Ledya in the head;
that she was concerned and worried for Ledya to the point that she called Ledya that night
and told her to watch her back; and that she called her back the next morning and told Ledya
the exact words Turner had used the night before. Chambers said that she waited for “a
couple” of days to file a police report.
Ledya Anderson testified that Chambers called her in May 2008, and what Chambers
told her scared her so much that she bought a gun and obtained an order of protection.
Anderson explained that while she and Turner were going through their divorce in 1993,
Turner had shot her car with a gun; had hidden in her car, pulled a gun on her, and raped
her; and had run out of the woods, jumped into her car, stuck a gun to her head, and shot
her. She said that after Turner shot her, he also shot her stepfather, who was in the car
behind her.
At the close of the State’s case, Turner moved for a directed verdict, arguing that the
State presented insufficient evidence to prove that he uttered the threat with the express
purpose of terrorizing his victim because at the time he made the threat, he had no reason to
believe that it would be communicated to the victim. The trial court denied this motion.
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Cite as 2010 Ark. App. 214
Turner rested without presenting any evidence. The trial court then found Turner guilty of
first-degree terroristic threatening.
On appeal, Turner again argues that there was insufficient evidence to prove that he
had the purpose to terrorize the victim at the time he uttered the threats. Although Turner
moved for a directed verdict, the motion was actually a motion for dismissal because it was
a bench trial, not a jury trial. Ark. R. Crim. P. 33.1(b) (2009). A motion to dismiss, identical
to a motion for a directed verdict in a jury trial, is a challenge to the sufficiency of the
evidence. Reed v. State, 91 Ark. App. 267, 209 S.W.3d 449 (2005). On appeal, evidence is
reviewed in the light most favorable to the State, and the conviction is affirmed if there is
substantial evidence to support the verdict. Id. Substantial evidence is evidence that will,
with reasonable certainty, compel a conclusion one way or another without resorting to
speculation or conjecture. Id. It is within the province of the finder of fact to determine the
weight of the evidence and the credibility of the witnesses. Id.
A person commits first-degree terroristic threatening if, “with the purpose of
terrorizing another person, the person threatens to cause death or serious physical injury ...
to another person.” Ark. Code Ann. § 5-13-301(a)(1)(A) (Repl. 2006). A person acts
“purposely” with respect to his conduct or a result of his conduct “when it is the person’s
conscious object to engage in conduct of that nature or to cause the result.” Ark. Code Ann.
§ 5-2-202(1) (Repl. 2006).
In support of his argument, Turner contends that Knight v. State, 25 Ark. App. 353,
758 S.W.2d 12 (1988), requires that his conviction be reversed. We agree that this case
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Cite as 2010 Ark. App. 214
mandates reversal of Turner’s conviction. In Knight, the appellant was an inmate in the
Pulaski County Jail; he was overheard by a deputy sheriff monitoring an intercom system
stating to the other inmates in his cell that they would read about some of the deputies in the
obituaries and they would not have died of natural causes because he would be “out of this
pen someday.” The deputy who overheard those remarks testified that he considered this a
death threat and felt terrorized. Knight was convicted of first-degree terroristic threatening.
On appeal, this court reversed, holding:
We agree with the State that the gravamen of the offense of terroristic
threatening is communication, not utterance. The statute does not require that the
threat be communicated by the accused directly to the person threatened. Richards v.
State, 266 Ark. 733, 585 S.W.2d 375 (1979). There is no requirement that the
terrorizing continue over a prolonged period of time. Warren v. State, 272 Ark. 231,
613 S.W.2d 97 (1981). Nor does the statute require that it be shown that the accused
had the immediate ability to carry out the threats. See Commonwealth v. Ashford, 268
Pa. Super. 225, 407 A.2d 1328 (1979). We do agree, however, with the statement of
the court in State v. Morgan, 128 Ariz. 362, 625 P.2d 951 (1981), that to be found
guilty of threatening the defendant must intend to fill the victim with intense fright.
Under our statute it is an element of the offense that the defendant act with the
purpose of terrorizing another person, i.e., it must be his “conscious object” to cause
fright.
When we view the evidence in the light most favorable to the State, we find
that the State established that appellant made the threatening statement, that the
statement was perhaps sufficiently specific to constitute a threat to [the deputy], that
appellant was aware that it was possible that his statement might be overheard, and that
[the deputy] was, in fact, put in fear. While we are aware that one’s purpose, like any
other state of mind, is not ordinarily subject to proof by direct evidence, and must
frequently be inferred from other facts, we do not think that the evidence in this case
is sufficient to establish that appellant made the statement with the conscious object of
terrorizing [the deputy], even if he was aware that he might be overheard. Statutes in
other states impose criminal liability for threats made in reckless disregard of the risk
of causing terror. See, e.g., State v. Schweppe, 184 Minn. 25, 237 N.W.2d 609 (1975).
Our statute does not.
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Cite as 2010 Ark. App. 214
25 Ark. App. at 356–57, 758 S.W.2d at 14.
Here, as in Knight, when the evidence is viewed in the light most favorable to the
State, it shows that the State established that Turner made the threatening statement, and that
the statement was perhaps sufficiently specific to constitute a threat to Anderson; however,
as in Knight, we hold that the evidence was not sufficient to establish that Turner made the
statement with the conscious object of terrorizing Anderson. The threatening statements,
which were made by Turner while he was, by his girlfriend’s description, “very mad,” were
made in Turner’s home to his girlfriend, who had no relationship with Anderson other than
talking to her regarding issues involving Anderson and Turner’s children. There is no
evidence, either direct or circumstantial, that it was Turner’s conscious object that his threat
be communicated to Anderson. For this reason, we reverse and dismiss Turner’s conviction.
Reversed and dismissed.
ROBBINS and MARSHALL, JJ., agree.
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