APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION [NOS.
60CR-17-4171, 60CR-17-4358] HONORABLE HERBERT WRIGHT, JUDGE
William R. Simpson, Jr., Public Defender, by: Clint Miller,
Deputy Public Defender, for appellant.
Leslie
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
BRANDON J. HARRISON, JUDGE
In July
2018, Donnie Lee Holmes was convicted (in case number
60CR-17-4171) of committing two counts of first-degree
terroristic threatening against a former girlfriend and her
fiancé after a bench trial. A separate cause (case
number 60CR-17-4358) was also tried in the Pulaski County
Circuit Court at the same time, and the court convicted
Holmes of committing the crimes of possession of firearms by
certain persons, aggravated assault on a family or household
member, aggravated assault, and violation of a no-contact
order. The court acquitted Holmes of one count of a
terroristic act in case no. 60CR-17-4358. Holmes timely
appealed his convictions.
For his
first point, Holmes argues that the State failed to meet its
burden of proof on the charge that he threatened his former
girlfriend, Shakita Nowden. For his second point, Holmes
argues that the felon-in-possession-of-a-firearm conviction
must also be reversed because the State did not present
sufficient evidence to support the conviction.
I.
First-Degree Terroristic-Threatening Charge
We
first address Holmes's contention that the State did not
prove its case on the charge that he committed terroristic
threatening in the first degree against Nowden; therefore,
the circuit court should have dismissed that charge. A motion
to dismiss during a bench trial is a challenge to the
sufficiency of the evidence. Ark. R. Crim. P. 33.1 (2018). In
reviewing a challenge to the sufficiency of the evidence,
this court determines whether the verdict is supported by
substantial evidence, direct or circumstantial. Foster v.
State, 2015 Ark.App. 412, 467 S.W.3d 176. Substantial
evidence is evidence forceful enough to compel a conclusion
one way or the other beyond suspicion or conjecture. And we
must view the evidence in the light most favorable to the
verdict. Id.
A
person commits the offense of terroristic threatening in the
first degree if, with the purpose of terrorizing another
person, the person threatens to cause death or serious
physical injury or substantial property damage to another
person. Ark. Code Ann. § 5-13-301(a)(1)(A) (Supp. 2017).
Holmes
moved to dismiss the terroristic-threatening charge at trial,
contending that he did not threaten Nowden by making
threatening telephone calls or sending threatening text
messages. Here, he states that there is no evidence that he
made specific threats toward Nowden and points out that the
recorded "voicemail" presented in State's
exhibit 1 is directed at Anthony Butler, Nowden's
fiancé, not Nowden herself. State's exhibit 2 is a
printout of the text messages exchanged between Holmes and
Nowden.
A
threat to kill someone will, quite obviously, sustain a
conviction for first-degree terroristic threatening.
Armour v. State, 2016 Ark.App. 612, at 4, 509 S.W.3d
668, 670. Assessing a witness's credibility is for the
fact-finder, Lowe v. State, 2016 Ark.App. 389, 500
S.W.3d 176, and the circuit court performs this role during a
bench trial. In doing so, it may accept or reject any part of
a witness's testimony. Id.
We will
review the evidence presented during the bench trial. Nowden
testified that on 28 October 2017, Holmes tried to stop her
and Butler with his car at an E-Z Mart on 12th Street in
Little Rock. She said that after the E-Z Mart incident,
Holmes called her on her cellular phone and sent her text
messages. Nowden said that Holmes left her voicemails stating
that he "was gonna kill me, kill my boyfriend, all type
of stuff." The printed text messages indicate that there
are (or were at one time) audio recordings embedded within
the text messages that were exchanged between Holmes and
Nowden. The embedded audio recordings were not, however,
played or transcribed during the bench trial. It is not clear
if these voicemails are the embedded audio messages sent via
text messaging or not. In any event, Nowden said that she
took seriously Holmes's threat to kill. In its turn, the
circuit court credited Nowden's testimony that Holmes
threatened to kill her and that she took that threat
seriously. Based on the record before us, which included
Nowden's testimony about what transpired, and the
standard of review, we hold that the State sufficiently
established the charge of terroristic threatening and affirm
the conviction on that charge (case no. 60CR-17-4171).
II.
Felon-In-Possession-of-a-Firearm Charge
Pursuant
to Arkansas Code Annotated section 5-73-103(a)(1) (Repl.
2016), no person who has been convicted of a felony may
lawfully possess or own a firearm. Holmes was charged with
committing this crime. To obtain a conviction, the State had
to prove that Holmes (1) possessed or owned a firearm and (2)
was a felon. No one questioned that Holmes is a prior felon;
he therefore focuses his argument on the element that he had
to possess a firearm, which he says he did not do.
When
moving the circuit court to dismiss this charge, Holmes's
counsel argued,
There was never a gun recovered. There was no evidence of a
gun being used except for maybe the audible noise that might
have been a gunshot. I just don't think they've met
their burden, even ...