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Sylvester v. State

Supreme Court of Arkansas

March 31, 2016








         KAREN R. BAKER, Associate Justice.

         On May 14, 2015, appellant, Ardwin Frank Sylvester, was convicted by a Sebastian County Circuit Court jury of kidnapping, rape, and aggravated robbery and sentenced to three terms of life imprisonment. On May 20, 2015, Sylvester timely filed his notice of appeal. On October 16, 2015, Sylvester filed his brief with this court, and the State timely responded. Sylvester raises two points on appeal: (1) the State provided insufficient evidence to find Sylvester guilty of kidnapping, rape, or aggravated robbery; (2) the circuit court erred when it denied Sylvester's motion for mistrial. We have jurisdiction pursuant to Ark. S.Ct. R. 1-2(a)(2) (2015).

         Sylvester's convictions arise from the June 24, 2014 kidnapping, rape, and aggravated robbery of DeAnn Opitz. The record demonstrates that on June 24, 2014, Opitz went to a Staples office supply store in Fort Smith, Arkansas, around 11:00 a.m. After completing her purchase and returning to the driver's side of her car, Opitz testified that a man approached her from behind, was armed with a silver and black automatic weapon, and told her to get in the car and " scoot over" to the passenger seat. She testified that she tried to give him her purse, her keys, and her car--anything to leave her there in the parking lot. Opitz testified that she stood still at his commands and Sylvester said, " I am a bad motherfucker and I will use this gun" ; she then complied and got in the car and moved over to the passenger seat. Opitz testified that she saw two Staples employees, with one employee on the phone. Opitz further testified that as Sylvester pulled out of the Staples parking area, the employee gave her a thumbs-up sign, and she shook her head " No" and gave him a thumbs-down sign. Opitz testified that they traveled on State Highway 10 and once they got to a residential area, Sylvester told her to " take [her] titties out so he could see them." She begged him not to rape her, and she said he told her he just wanted to see them, while continuing to drive, laid the gun in his lap, and pointed it at her. Opitz testified that he fondled her breasts with his right hand and was very rough tearing the straps to her dress. Opitz testified that Sylvester kept driving and went out to the industrial-park area and at that point asked her to pull up her dress so he could see her panties. Opitz again asked him not to rape her, and Sylvester made sure she knew he had the gun; she complied and pulled up her dress. With the barrel of the gun pointed at her from his lap, Sylvester instructed her to pull her panties to one side, he inserted his fingers into her vagina over and over. Opitz testified that after this, Sylvester unzipped his pants and ordered her to touch his penis. She testified that during this time Sylvester made sure that Opitz knew he could get to the gun and use it if she did not comply. She testified that after this, that they continued to drive around and were close to Ashdown, and Sylvester let her cover herself back up. She testified that Sylvester then began to go through her purse, took money from her purse, and shoved the money into the pockets of his jeans. She testified that they were driving through off-road rugged country and she feared for her life.

         Opitz testified that once they got to Ashdown, Sylvester turned into a Burger King, instructed Opitz not to make any gestures or signals or talk to people or she would be hurt as well as people inside the restaurant, and he ordered two drinks. After leaving Burger King, Sylvester pulled into a nearby EZ Mart because the fuel light in Opitz's car had come on and the vehicle needed gas. Opitz testified that when they pulled in the EZ Mart, Sylvester put the gun into the waist of his jeans and told her again to not make any gestures, moves, or statements to anybody. Sylvester went inside to prepay for gas. Opitz testified that when he returned, he was having trouble getting the gas tank open, asked her to exit the car and open the tank, which she did. Opitz testified that after helping Sylvester open the gas tank, she returned to the car and did not put her seat belt on. While Sylvester was pumping gas, a truck with a trailer with lawnmower equipment pulled in a few feet from her door. Opitz testified that she saw the truck as an opportunity to escape because there was something between her and Sylvester. She testified that she " threw open the door and ran to the far side of that trailer and truck so there was something between me and him, and I ran straight into the door of the EZ Mart and I told him to the lock the door, that he had a gun and I had been kidnaped." Surveillance video from the EZ Mart was obtained, admitted into evidence, and played for the jury. Opitz testified that the video accurately reflected what happened that day and also identified Sylvester. Finally, Opitz identified Sylvester at trial as the perpetrator.

         Staples employee Jimmy Keith testified that he worked the register that day and that he checked Opitz out with her products. Keith testified that the front of the store is all glass, and he watched Opitz leave the store. He also testified that he saw a man in the parking lot in a crouched position with something in his hand, a pipe possibly, that the man headed toward Opitz's car and rushed behind Opitz so Opitz could not see him. At this point, Keith testified that he felt something suspicious was happening and called for his manager, Tad Steffenson. Keith testified that he first thought the man was carrying a gun, and then he decided it might be a pipe. Staples manager, Steffenson, testified that once he was summoned, he ran out the front door, and the car was thirty feet away from him. He testified that he saw Opitz in the passenger seat and gave her a thumbs-up sign and she shook her head " No" and gave a thumbs-down sign. Steffenson said when he saw this he was already calling 911 about a possible abduction and while on the phone with 911 gave her a second thumbs-up sign and Opitz again responded in the negative and gave him a thumbs-down sign.

         Sylvester was tried and convicted as recited above, and this appeal followed.

         A. Sufficiency of the Evidence

         For his first point on appeal, Sylvester asserts that the circuit court erred in denying his motions for directed verdict because the State provided insufficient evidence to find Sylvester guilty of kidnapping, rape, or aggravated robbery. In reviewing a challenge to the sufficiency of the evidence, this court assesses the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Tillman v. State, 364 Ark. 143, 217 S.W.3d 773 (2005). This court will affirm a judgment of conviction if substantial evidence exists to support it. Id. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id.

         We begin our analysis by reviewing Sylvester's motions for directed verdict. It is a well-settled principle of appellate law that arguments not raised at trial will not be addressed for the first time on appeal. Buford v. State, 368 Ark. 87, 243 S.W.3d 300 (2006); Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000). Likewise, parties cannot change the grounds for an objection on appeal, but are bound by the scope and nature of their objections as presented at trial. Id. Here, the record demonstrates that at trial, Sylvester based his motions for directed verdicts exclusively on jurisdiction. Sylvester argued that for all three crimes, the jury would be " left to guess whether the crimes occurred in Sebastian County" and solely argued ...

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