FROM THE SEBASTIAN COUNTY CIRCUIT COURT. NO. CR-14-633.
HONORABLE J. MICHAEL FITZHUGH, JUDGE.
R. BAKER, Associate Justice.
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).
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.
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.
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.
was tried and convicted as recited above, and this appeal
Sufficiency of the Evidence
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.
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