Chism v. State
| Citation | 312 Ark. 559,853 S.W.2d 255 |
| Decision Date | 19 April 1993 |
| Docket Number | No. CR,CR |
| Parties | Harold Edward CHISM, Appellant, v. STATE of Arkansas, Appellee. 92-569. |
| Court | Supreme Court of Arkansas |
Teena L. White, Asst. Atty. Gen., Little Rock, for appellee.
Appellant, Harold Edward Chism, appeals a judgment of the Washington Circuit Court convicting him of kidnapping, first degree battery, and theft. Appellant was tried by a jury, convicted, and sentenced to the Arkansas Department of Correction for consecutive terms of life, twenty years, and twenty years, respectively. Our jurisdiction is pursuant to Ark.Sup.Ct.R. 29(1)(b). For reversal of the judgment, appellant asserts five points of error. We find merit in appellant's challenge to the sufficiency of the evidence on the kidnapping charge and reverse and dismiss the judgment as it pertains to that charge. We find no merit in the four remaining points and affirm the remainder of the judgment pertaining to battery and theft.
Appellant makes five arguments on appeal, one of which is a challenge to the sufficiency of the evidence on the kidnapping charge. Appellant's right to freedom from double jeopardy requires that we consider this argument prior to the other arguments concerning trial error. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992); Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).
Appellant claims the trial court erred in denying his motions for directed verdict on the kidnapping charge. Appellant argues the jury could not have convicted him of kidnapping without resorting to speculation and conjecture.
We treat the challenge of a denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992); Williams v. State, 298 Ark.
484, 768 S.W.2d 539 (1989). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987). On appeal, this court reviews the evidence in the light most favorable to appellee and sustains the conviction if there is any substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990); Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).
The evidence, as viewed favorably to appellee, reveals that on April 27, 1991, the victim of the kidnapping, battery and theft first encountered appellant at R.L.'s Garage, an automobile repair shop in the southern part of Fayetteville, Arkansas. The victim stopped at the garage to ask directions to an Alcoholics Anonymous meeting place. Appellant offered to show the victim where she needed to go and entered her van.
Appellant and the victim did not find the meeting place and both returned to the repair shop. At this point, appellant was driving her van. Appellant exited the victim's van and she then drove north on Highway 71. Approximately ten minutes later, appellant left the repair shop in his vehicle, returned to get his checkbook, and then left the repair shop again heading in the same direction as the victim had driven. Later that same day, the victim awoke in a field near a wooded area with her van nowhere in sight, naked, and severely beaten. She was also missing her wedding ring. The victim had no idea where she was or how she got there. She crawled approximately one-half mile to a residence, where she broke a window, entered the home, and called for help.
Washington County Sheriff's Deputies were able to locate the residence from where the victim telephoned for help and found her there clothed only in socks and a bra wrapped around her neck. The house where the deputies found her is located south of the Zimmerman community on Highway 170, approximately two miles north of Devil's Den State Park. Her face was so severely beaten her eyes were swollen shut and she could barely talk. She had large lacerations over her right eye. Her face and torso were covered with dried blood. While awaiting the arrival of an ambulance, the victim told the deputies that her attacker was the man she had met at the repair shop earlier that day.
In the present case, to prove kidnapping the state must show that appellant restrained the victim, without her consent, so as to interfere substantially with her liberty with the purpose of inflicting physical injury upon her. Ark.Code Ann. § 5-11-102(a)(4) (1987). In Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908 (1988), we applied section 5-11-102 to a defendant accused of both kidnapping and an underlying crime (rape) and interpreted the kidnapping statute in such a situation as requiring the restraint of the victim's liberty to exceed that normally incidental to the underlying crime.
We have recently applied the Summerlin case in Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991), to reverse a kidnapping conviction and in Thomas v. State, 311 Ark. 609, 846 S.W.2d 168 (1993), to affirm a kidnapping conviction. Similar to many other cases we have decided, both Shaw and Thomas involved a victim being driven from the point of contact with their attackers into a rural area and raped there. In Shaw, finding facts sufficient to sustain a conviction only for rape, we reversed the kidnapping conviction because according to the victim's testimony, she consented to the attacker's actions until the point at which he raped her. See Shaw, 304 Ark. 381, 802 S.W.2d 468. In Thomas, we upheld both the rape and kidnapping convictions because the victim testified that although she consented to entering her attacker's vehicle, she immediately began kicking her attacker and pleading to be taken where she agreed to go.
This case presents a peculiar set of facts. Unlike Shaw, 304 Ark. 381, 802 S.W.2d 468 As previously stated, appellant specifically argues there is insufficient evidence to support a judgment of conviction for kidnapping because there is no evidence that appellant interfered with the victim's liberty to an extent beyond that which was incidental to the underlying crimes of battery and theft. He points out that the victim was unable to remember how she got to the field. She remembered returning with appellant to the garage and then driving away alone; the next thing she remembered was regaining consciousness in the field, finding herself naked and beaten. Thus, appellant argues there is simply no evidence showing he restrained the victim in excess of the restraint incidental to the battery and theft. He argues further that the jury must have resorted to speculation to conclude he kidnapped the victim and it was therefore error to deny his motion for directed verdict.
there is no testimony in the present case that the victim was restrained only at the point at which appellant committed the underlying crimes. And, unlike Thomas, 311 Ark. 609, 846 S.W.2d 168, there is no testimony in the present case that the victim was restrained at a point prior to appellant's commission of the underlying crimes.
In support of its claim that there is substantial evidence to support the verdict of guilt on the kidnapping charge, the state relies heavily on the following circumstantial evidence. The victim testified that she was unable to remember anything that happened after driving away from appellant's place of employment. She was found miles away from the place she was last trying to locate. She also stated that she thanked God she could not remember anyone hitting her. However, she did testify that she did not give anyone permission to take her van or wedding ring. The day after the victim encountered appellant, Washington County Sheriff's Deputies found both the keys to her van and her wedding ring on appellant's person.
We have stated that circumstantial evidence may constitute substantial evidence. Still v. State, 294 Ark. 117, 740 S.W.2d 926 (1987). However, in order for circumstantial evidence to constitute substantial evidence, it must exclude every other reasonable hypothesis consistent with an accused's innocence. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). Whether the circumstantial evidence excludes all other reasonable hypotheses consistent with innocence is a question to be determined by the finder of fact. Id.
We are well aware of the foregoing rules of law concerning circumstantial evidence. However, regardless of whether evidence is direct or circumstantial, it must still meet the requirement of substantiality--it must force the fact finder to reach a conclusion one way or the other without resorting to speculation or conjecture. We cannot say the evidence presented in this case meets that requirement. This case bears a noticeable absence of any substantial evidence, either direct or circumstantial, that the victim's liberty was or was not restrained in excess of the restraint that was incidental to the battery and theft. There is not substantial evidence to support the jury's verdict of guilt as to the kidnapping charge and the trial court therefore erred in denying appellant's motion for directed verdict.
Appellant claims the victim's van keys and wedding ring found in his pocket during a pat-down search should have been suppressed. On appeal, he argues the warrantless search was illegal because there was no justification for a pat-down search pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), as there was no evidence that he was armed and dangerous. Appellant also argues on appeal that the search was illegal because there was no probable cause to arrest him.
The trial court ruled the evidence admissible finding probable cause to arrest appellant and that a search incident to...
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