Dillard v. State (Majority)
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Cite as 2013 Ark. App. 87
ARKANSAS COURT OF APPEALS
DIVISION II
No. CACR 11-1075
Opinion Delivered February 13, 2013
TOM AARON DILLARD
APPELLANT
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT
[NO. 2010-2129-1]
V.
STATE OF ARKANSAS
APPELLEE
HONORABLE WILLIAM A. STOREY,
JUDGE
AFFIRMED
RITA W. GRUBER, Judge
This case returns to us after we ordered settlement and supplementation of the record,
correction of the judgment and commitment order, and rebriefing. Dillard v. State, 2012 Ark.
App. 503. The record has now been supplemented with a verbatim transcription of a 911 call
that was played for the jury; the corrected judgment and commitment order clarifies that the
circuit court did not illegally require a condition of incarceration; and appellant’s substituted
brief comports with the requirements of Arkansas Supreme Court Rule 4-2 (2012).
Tom Aaron Dillard was charged with rape, aggravated robbery, and kidnapping. The
crimes were committed in Fayetteville in the victim’s car after she ended her shift at a Taco
Bell. Dillard was convicted by a jury, which found for purposes of sentence enhancement that
he used a firearm in the commission of the crimes, and he was sentenced to terms of
imprisonment totaling 792 months.
Dillard now appeals, challenging evidentiary rulings by the circuit court. He contends
Cite as 2013 Ark. App. 87
that the court abused its discretion by overruling his relevancy objections and allowing
evidence that he allegedly told the victim of his plan to go to Russellville to kill someone.
He also contends that the court abused its discretion by allowing Fayetteville Police Officer
Tim Shepard’s hearsay testimony that related a statement that the victim made to him in the
hospital. We find no abuse of discretion, and we affirm.
Evidence of Dillard’s Plan
Dillard’s first point on appeal concerns evidence that he allegedly told the victim of his
plan to go to Russellville to kill someone. Dillard argues that this evidence was inadmissible
because it was not relevant to the crimes for which he was being tried; alternatively, he argues
that the evidence should have been excluded because it was substantially more prejudicial than
probative. The evidence was introduced at trial through an audio recording of the victim’s
911 call, testimony by a Fayetteville police officer, and testimony by the victim.
The court reporter’s transcript of the 911 call includes the victim’s words to the
dispatcher:
I just had a man jump in the back of my car when I was leaving work . . . and he
made me give him head and he’s still around here. . . . He jumped into my backseat
and he said, “I need a ride.” I said, “I can’t help you.” I said, “Will you please get out
of my car.” And that’s when he pulled the gun on me. He said, “You don’t have a
choice.” . . . And he goes, “I need to go to Russellville,” and like, my gas light was on.
And he said, . . . “Well drive over there,” . . . towards Highway 62. . . . [H]e jumped
out of the vehicle . . . after he made me give him head. . . . But I’m,—he’s, he’s
apparently gonna kill somebody, ’cause I begged and I pleaded with him not to kill me.
(Emphasis ours.)
Officer Tim Shepard testified that the victim told him that Dillard stated to her, “I’m
not going to kill you. You’re not on my list.” The victim testified that Dillard told her he
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needed to go to Russellville, that he would not shoot her because she was not on his list, and
that sometimes people made him so mad he “could kill someone.”
Under Arkansas Rule of Evidence 402, relevant evidence is generally admissible and
evidence that is not relevant is not admissible. Rule 403 provides an exception to the
admission of relevant evidence:
Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.
Even though evidence of other crimes by the accused is generally not admissible if it
is not charged in the indictment or information and not a part of the same transaction, the res
gestae exception allows admission in order to establish facts and circumstances surrounding
the commission of the alleged offense. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000).
Under the res gestae exception, the State is entitled to introduce evidence showing all
circumstances that explain the charged act, show a motive for acting, or illustrate the accused’s
state of mind if other criminal offenses are brought to light; all of the circumstances connected
with a particular crime may be shown to put the jury in possession of the entire transaction.
Id. Where separate incidents comprise one continuing criminal episode or an overall criminal
transaction, or are intermingled with the crime actually charged, the evidence is admissible.
Id. Res gestae testimony and evidence is presumptively admissible. Id.
In Payton v. State, 2009 Ark. App. 690, appellant argued that prejudice from his
statement to police about his own marijuana use outweighed any probative value of the
evidence in his trial for rape. Because it was part of the entire transaction surrounding the
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alleged rape, we found no abuse of discretion by the circuit court in refusing to redact
appellant’s own references to his marijuana use:
As our supreme court explained in Thessing v. State, 365 Ark. 384, 230 S.W.3d 526
(2006), a broad scope of evidence has been determined to be admissible as res gestae
evidence under our case law. All of the circumstances intermingled with a particular
crime may be shown as part of the res gestae in order to give the jury knowledge of
the entire transaction surrounding an alleged offense. Id.; see also Ark. R. Evid. 404(b).
Payton, 2009 Ark. App. 690, at 5.
Here, similarly, Dillard’s statements of his alleged plan to kill someone revealed a
reason that he jumped into the victim’s car and demanded to be driven to Russellville, why
he was carrying a gun, and what his intent was with regard to possibly shooting her. This was
part of the entire transaction, and the circuit court did not abuse its discretion by admitting
the evidence.
Hearsay Statement
At issue in Dillard’s second point on appeal is Officer Shepard’s testimony about
Dillard’s acts against the victim as she related them to the officer in the hospital emergency
room. Shepard testified that he responded to the 911 call and went to the Taco Bell, where
he made contact with the female caller but was unable to make sense of her statements. He
described her as visibly upset, shaking, teary-eyed, and “very excited in her
mannerisms”—exhibiting “a lot of hand gestures, rapid speech, deep breathing.” He
explained that he could not get a clear picture of what had happened because of a “jump” in
the sequence of events she related. Shepard said that he transported her to Washington
Regional Medical Center and was able to speak with her again in the emergency room; he
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described her as still upset but “able to calm down a little bit” with the curtains closed and a
female nurse present. Shepard testified that many of the victim’s statements were the same
that she had given at Taco Bell, but he was able to put her hospital statements in sequence and
get a clear picture of what had happened.
Hearsay is generally inadmissible under Arkansas Rule of Evidence 802. Among the
exceptions to the hearsay rule, however, are these:
(1) Present Sense Impression. A statement describing or explaining an event or
condition made while the declarant was perceiving the event or condition, or
immediately thereafter.
(2) Excited Utterance. A statement relating to a startling event or condition made
while the declarant was under the stress of excitement caused by the event or
condition.
Ark. R. Evid. 803. The circuit court allowed Shepherd’s statement as an excited utterance
and present-sense impression.
Factors to consider when determining if a statement falls under the excited-utterance
exception are the lapse of time, the age of the declarant, the physical and mental condition
of the declarant, the characteristics of the event, and the subject matter of the statement.
Davis v. State, 362 Ark. 34, 207 S.W.3d 474 (2005). For the exception to apply, there must
be an event that excites the declarant. Peterson v. State, 349 Ark. 195, 199, 76 S.W.3d 845,
847 (2002). In addition,
“it must appear that the declarant’s condition at the time was such that the statement
was spontaneous, excited or impulsive rather than the product of reflection and
deliberation.” Fudge [v. State, 341 Ark. 759, 768, 20 S.W.3d 315, 320 (2000)]. The
general rule is that an utterance following an exciting event must be made soon
enough thereafter that it can reasonably be considered a product of the stress of the
excitement rather than of intervening reflection or deliberation. However, . . . the
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trend is toward expansion of the time interval after an exciting event.
Peterson, 349 Ark. at 199–200, 76 S.W.3d at 847 (2002). (Some internal citations omitted.)
Continuing emotional or physical shock, unabated fright, and other factors may also prolong
the time, making it proper to resort to Rule 803(2). Id. at 200, 76 S.W.3d at 847.
The basis of the excited-utterance exception is that a person who experiences a
startling event and is still under the stress of the excitement of it when statements are made
will not make fabricated statements and their utterances are therefore trustworthy. Tackett v.
State, 12 Ark. App. 57, 670 S.W.2d 824 (1984). In these situations the court must find that
there was a startling event and that at the time the utterance is made the declarant is still under
the stress of excitement resulting from that event when the utterances are made. Id.
Although the excited utterance must be made close in time to the startling event, the length
of elapsed time is only one factor to be considered in determining whether the stress of the
excitement has continued. Id.
Here, the victim’s account of the crimes that she told Officer Shepard in the hospital
was made shortly after the crimes occurred and while she was under the stress of excitement
they caused. He testified that she was upset when he talked to her at Taco Bell—shaking,
teary-eyed, and “very excited in her mannerisms,” as shown by hand gestures, rapid speech,
and deep breathing—and that he could make little sense of what she was trying to say about
the incident. He transported her from Taco Bell to the hospital. With the curtains drawn
and a female nurse present, the victim was still upset but calmed down a bit and was able to
give a more coherent statement.
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We hold that the circuit court did not abuse its discretion in admitting the victim’s
hospital statement to the officer as an excited utterance. In light of this holding, we need not
decide if the statement was also a present-sense impression.
Additionally, we note that evidence of the crimes was presented through the 911
recording, the victim’s testimony, and Shepherd’s statement, and that Dillard points to
nothing in Shepherd’s statement that resulted in prejudice. The appellate court will not
presume that prejudice results from an evidentiary error, nor will it reverse a trial court’s
ruling unless the appellant demonstrates prejudice. Dixon v. State, 2011 Ark. 450, 385 S.W.3d
164.
Affirmed.
HARRISON and WYNNE, JJ., agree.
Paul M. Gehring, for appellant.
Dustin McDaniel, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.
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