FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION [NOS.
60CR-17-4171, 60CR-17-4358], HONORABLE HERBERT WRIGHT, JUDGE
R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy
Public Defender, for appellant.
Rutledge, Atty Gen., by: Adam Jackson, Asst Atty Gen., for
J. HARRISON, Judge
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
fiancéafter 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.
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.
First-Degree Terroristic-Threatening Charge
first address Holmess 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
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).
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 States exhibit 1
is directed at Anthony Butler, Nowdens fiancé, not
Nowden herself. States exhibit 2 is a printout of the text
messages exchanged between Holmes and Nowden.
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 witnesss 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 witnesss testimony. Id.
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 Holmess
threat to kill. In its turn, the circuit court credited
Nowdens testimony that Holmes threatened to kill her and
that she took that threat seriously. Based on the record
before us, which included Nowdens 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
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;