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Neal v. State

Court of Appeals of Arkansas, Division IV

September 7, 2016

RICKEY NEAL APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION [NO. 60CR-13-230] HONORABLE LEON JOHNSON, JUDGE

          Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., for appellant.

          Leslie Rutledge, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

          KENNETH S. HIXSON, Judge

         Appellant Rickey Neal appeals after he was convicted by a Pulaski County jury of domestic battering in the second degree, theft of property, and fleeing and was sentenced to serve a total of 300 months in the Arkansas Department of Correction. On appeal, appellant contends (1) that the trial court erred when it denied his motion for directed verdict and (2) that the trial court abused its discretion when it denied his motion for mistrial. We affirm.

         Appellant was charged by information with aggravated robbery, domestic battering in the second degree, theft of property, terroristic threatening in the first degree, and fleeing. At trial, Officer Stan Wilhite testified that he was dispatched to the residence of the victim, Betty Frazier, on the evening of December 2, 2012. During his walk-through of the residence, the officer observed several items in disarray and some furniture turned over, which indicated to him that there had been some sort of an altercation. He observed several apparent blood stains at the scene, and he took samples of fresh blood that were found at Ms. Frazier's home and at a store across the street.[1] The officer testified that he took several photographs at the scene. Afterwards, the officer went to the hospital to meet with the victim, Ms. Frazier. Ms. Frazier had already received medical treatment and had bandages covering parts of her face. The officer took photographs of Ms. Frazier.

         Ms. Frazier testified that she was sixty-five years old at the time of the altercation. She explained that she had been romantically involved with appellant, that they were living together, and that he knew her age. She was the owner of a black 2010 Ford Edge. Ms. Frazier testified that on the night of December 2, 2012, appellant became upset with her in the bedroom after she told him that she would not marry him. She testified that he subsequently struck her with her pistol that he had taken out of her dresser drawer. After the appellant had struck her with the pistol, she explained that she fell against the closet door and "passed out." When she came to, appellant had lifted her up by her pockets and was trying to find her car keys. After he found them, she asked to go to the bathroom because there was blood on her face and in her eyes. Ms. Frazier indicated that the appellant followed her throughout several rooms of the home and continued to "terrorize" her. At one point, the appellant told her that he would kill her and then kill himself. In the main room of the residence, appellant took a hardened seashell and struck her in the forehead. Ms. Frazier finally was able to get out of the home by shoving appellant over a chair, and she fled to a tobacco store located across the street. Ms. Frazier testified that she collapsed at the store and was subsequently transported to the hospital by ambulance. After her release from the hospital, Ms. Frazier discovered that she was missing jewelry and that her Ford Edge was missing. Ms. Frazier testified that appellant did not have permission to take her jewelry or her car that night. Throughout her testimony, the prosecutor showed Ms. Frazier photographs of the scene as she described the chain of events, and she indicated that it was her blood depicted in the photographs.

         Dr. David Edrington testified that he was Ms. Frazier's treating physician in the emergency room. He explained that she suffered from a scalp laceration that was ten centimeters in length on the crown of her scalp; multiple contusions, bruising, and swelling, predominantly around her left orbital area; and one lost tooth. After using staples to close the laceration, Dr. Edrington chose to admit her into the hospital for further observation.

         Lieutenant Barry Brewer testified that he was the shift commander on duty the night of the altercation. He explained that he observed the appellant operating a black Ford Edge and activated his blue lights in an attempt to stop the vehicle. However, the vehicle did not stop; instead, the appellant led law enforcement officers on a high-speed pursuit lasting approximately sixteen minutes, with appellant traveling up to 132 miles per hour at one point. Eventually, law enforcement deployed spike strips to stop appellant's vehicle, and the appellant was apprehended.

         Officer Nick Kinsey testified that he assisted in the pursuit of the appellant. Kinsey testified that after the appellant had been apprehended, although he observed some blood on appellant's clothing, he did not observe any injuries on appellant. Crime Specialist Rachel Carver and Detective Reagan Hilgeman testified that they searched the black Ford Edge operated by the appellant after appellant's arrest. They discovered jewelry and what appeared to be blood in the vehicle.

         Detective Brad Silas testified that he took photographs of appellant in an interview room after he had been arrested. The detective noticed that appellant had blood on his clothing and a small scratch on his hand and chest. However, appellant did not complain of any injuries at the time, and none of the injuries were bleeding at that time. Additionally, appellant did not exhibit any signs of intoxication.

         Appellant's testimony at trial painted a very different version of events. The appellant openly admitted to the jury that he was guilty of fleeing and that he had been previously convicted of second-degree battery, theft by receiving, aggravated assault on a family or household member, and terroristic threatening. He explained that on the night of the incident he had been out drinking with friends while Ms. Frazier stayed home. The appellant admitted that he was drunk. When he returned home, the appellant found Ms. Frazier lying in bed drinking wine. He testified that he went downstairs to eat, drink some more alcohol, and smoke cigarettes. At some point thereafter, the appellant stated that he returned to the bedroom and went to sleep. The appellant explained that he woke up after he had been hit across his chest, and he discovered that his hands had been tied with two neckties. The lights were off in the home. He further testified that the person continued to hit him, hitting him on his head, crushing the knuckles of his hand, and stabbing his big toe with a pocketknife. He managed to get himself loose and fought with the person around the house. It was only after the appellant had turned the lights on that he realized that he had been fighting with Ms. Frazier and that it was Ms. Frazier lying on the floor. The appellant indicated that he tried to help Ms. Frazier and wanted to take her to the hospital. However, Ms. Frazier threw a towel at him and left. The appellant denied that there was any argument about marriage. He further denied hitting Ms. Frazier with a gun or seashell and stated that he instead hit her with a flashlight in the bedroom only because he did not know that it was Ms. Frazier. After Ms. Frazier left, the appellant explained that he left in the Ford Edge because he was afraid that the police would take him back to prison since he was already on parole. Finally, he denied taking any jewelry from Ms. Frazier and explained that the jewelry that was found in the Ford Edge had already been in the vehicle.

         The jury found appellant not guilty of aggravated robbery, and the jury was unable to reach a decision for terroristic threatening in the first degree. However, the jury did find appellant guilty of domestic battering in the second degree, theft of property, and fleeing. The appellant was sentenced to serve 300 months for domestic battering in the second degree, 12 months for theft of property, and 180 months for fleeing in the Arkansas Department of Correction, to be served concurrently. This appeal followed.[2]

         Appellant first alleges that the trial court erred in denying his motion for directed verdict. Specifically, he argues that the jury lacked substantial evidence to convict him of domestic battering in the second degree because the victim's version of events was unlikely based on the evidence of appellant's physical condition. Instead, he argues that the evidence was clear that the victim was the initial aggressor. We disagree.

         A motion for a directed verdict is a challenge to the sufficiency of the evidence. Wyles v. State, 368 Ark. 646, 249 S.W.3d 782 (2007). On an appeal from a denial of a motion for a directed verdict, the sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Id. In determining whether there is substantial evidence to support the verdict, this court reviews the evidence in the light most favorable to the State and considers only that evidence which supports the verdict. Id. ...


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