Durham v. State

• Decision Date: 05 June 1995
• Docket Number: No. CR,CR
• Citation: 899 S.W.2d 470,320 Ark. 689
• Parties: James Randall DURHAM, Appellant, v. STATE of Arkansas, Appellee. 94-1051.
• Court: Arkansas Supreme Court

Page 470

899 S.W.2d 470

320 Ark. 689

James Randall DURHAM, Appellant, v. STATE of Arkansas, Appellee.

No. CR 94-1051.

Supreme Court of Arkansas.

June 5, 1995.

[320 Ark. 691] Christopher O'Hara Carter, Mt. Home, for appellant.

Sandy Moll, Asst. Atty. Gen., Little Rock, for appellee.

ROAF, Justice.

This is an appeal from a conviction for kidnapping, attempted murder and aggravated robbery. Three points are raised on appeal; none have merit, and we affirm.

On October 29, 1993, the Mountain Home police department received a call concerning an abduction of Sandi Schultz, the proprietor of a store called, "New to You." The victim told police that shortly after she opened her store, a man entered, approached her from behind, and sprayed her face with mace. The man said to her, "Shutup, Sandi, I've got a gun. I can kill you." The victim struggled with her attacker but was unable to get away as he remained behind her with his arm around her neck and was significantly larger and stronger. She finally went limp, realizing the struggle was futile. She then tried to talk to him in an attempt to persuade him not to harm her.

He did not respond verbally, but instead began to choke her as she was lying on the floor. She said that she must have lost consciousness as the next thing she remembered she was waking up in a different room in the store. Her hands were bound behind her back with duct tape. She could hear her attacker in the next room, apparently trying to open the register because it was making a beeping sound, which it would do when it was not being opened properly.

Her assailant then returned and got the key to the front door from her pocket. She heard him lock the front door, and saw him go to the fuse boxes and turn off all the lights. He next found a cardboard box and placed her in it with her legs curled up against her chest. He also gagged her.

The victim reported that he taped the box shut, picked it up and carried it outside the store where she was able to kick through the box and break out. She spit out her gag and ran to a nearby store and screamed, "Lock the door, lock the door. He's got a gun and he tried to kill me." The assailant ran away after her escape.

The police were contacted and the victim told them she recognized her assailant as someone who had come into her store within the last two weeks. Leads were developed and a photo lineup was put together with pictures of James Durham, the appellant, and five other men. The victim looked at the photo spread and identified appellant as her attacker.

Appellant was arrested and gave the police a statement. He told police he had been to the victim's store in the past week with his wife, inquiring about a child's safety seat. He admitted going into the victim's store on the 29th, spraying the victim's face with mace, struggling with her and binding her with duct tape. He said it was his intention to steal baby clothes and strollers for his pregnant wife. Appellant stated that when he put the victim into the box, he intended to take her out along the road and leave her there. He also stated that when he put her in the box, she was mumbling and "carrying on."

Appellant was charged with kidnapping, aggravated robbery and attempted first degree murder. A jury trial was held and appellant testified in his own behalf. He indicated to the jury that he did not remember providing the taped confession and that he was not guilty of the charges. On cross-examination, he stated that he was not saying that he did not commit the crimes, but that he did not remember committing them and had only a vague memory of the interview with the police.

Appellant was found guilty on all three charges and was sentenced to fifty years each for the kidnapping and aggravated robbery and ten years for the attempted murder. The trial court ordered the kidnapping and robbery charges to run consecutively and the attempted murder to run concurrently with the other two. Appellant appeals from that judgment.

SUFFICIENCY OF THE EVIDENCE

Appellant first argues that the trial court erred in denying his motion for a directed verdict on all three charges. As to the kidnapping, he argues that, under the facts of the case, the state had only a charge of an attempt to dispose of a dead body and not kidnapping because the victim testified that at one point during the episode she "played dead;" on the aggravated robbery charge appellant argues there was no proof anything was taken; and on the attempted murder charge he argues there was no evidence to show there was attempted murder.

At trial, appellant made a directed verdict motion at the close of the state's case specifying the same grounds he now argues on appeal. He then made a second motion for directed verdict at the conclusion of his case, incorporating the arguments made in connection with his initial motion. After rebuttal, at the close of all the evidence, appellant simply stated "I would renew all previous motions I have made."

A motion for a directed verdict is a challenge to the sufficiency of the evidence. To preserve that objection, the motion must be made at the close of the state's evidence and at the close of the case. A.R.Cr.P. 36.21(b). The motion must also be sufficiently specific to apprise the trial court of the ground asserted for the motion. Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994); Daffron v. State, 318 Ark. 182, 885 S.W.2d 3 (1994); Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994).

The state argues we should not reach the merits of the directed verdict motion because appellant's renewal of the motion at the close of all the evidence was general in nature only. The state acknowledges that appellant made a proper motion at the close of the state's case but argues under our cases and rules, specificity is required at the close of all the evidence as well as at the close of the State's case. We do not agree that the defendant should be required to restate his grounds for directed verdict in cases such as the one before us, where the defendant has made a specific motion at the close of the State's case, and incorporates the same arguments by the later renewal.

In Walker v. State, supra, we announced a "bright line" rule requiring specificity in directed verdict motions, and that general motions would no longer suffice. See also, Monk v. State, 320 Ark. 189, 895 S.W.2d 904 (1995); Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995); Jones v. State, supra,; Davis v. State, 319 Ark. 460, 892 S.W.2d 472 (1995); Daffron v. State, supra; Goins v. State, 318 Ark. 689, 890S.W.2d 602 (1995); Houston v. State, 319 Ark. 498, 892 S.W.2d 274 (1995).

It is also true that we have held that a defendant waives the first motion made when he presents a case. Rudd v. State, 308 Ark 401, 825 S.W.2d 565 (1992). It is further true that we have taken pains in this area to assure that the trial court is apprised of the same arguments that are raised to us on appeal. Stricklin v. State, 318 Ark. 36, 883 S.W.2d 465 (1994). But neither series of cases militates against the renewal of the same earlier, specific directed verdict motion at the end of all the proof. Durham effectively raised the same grounds by his renewal at the end of all the evidence, as he had earlier presented to the trial court at the close of the State's case. He now argues the same grounds on appeal. His initial motion was specific as required by Walker, supra, was renewed at the close of all the evidence and we will thus reach the merits of his arguments.

MERITS

Appellant first argues that the offense of kidnapping is inconsistent with the facts of the case, including the victim's testimony that she "played dead", and the additional charge of criminal attempt to commit first degree murder; in other words, he could not have intended to both kidnap and kill her. He suggests that the State has only established an attempt to dispose of a dead body under the facts, and that one cannot kidnap a dead body. In support of this novel argument appellant states that he did not provide a motive to the victim during the incident or to the police officers during his subsequent interrogation. He further states the facts at trial show that the victim was "grabbed, bound, gagged, placed in a box, choked until she passed out and then played dead."

As to the charge of aggravated robbery, appellant argues that he took nothing from the store and made no statement or demand of the victim to indicate he contemplated a theft. He states that he did not respond when the victim offered to show him where the money was, but concedes that, at trial, she testified she heard him trying to open the cash register.

For the final charge of criminal attempt to commit first degree murder, appellant argues that the facts as alleged by the State and the evidence presented would only give rise to a charge of battery. In support of this argument he suggests that, other than the can of mace, he had no weapon and none was found at the scene, the victim was not severely injured and he denied any intent to kill the victim in his confession.

The following exchanges from appellant's confession, which was admitted into evidence, provide substantial evidence in support of the kidnapping and robbery charges:

Officer: ... What was on your mind to do?

Durham: Go down there and spray mace in her face and take all the baby clothes that I could and strollers. Anything for the new baby, that Jennifer's carrying of mine.

. . . . .

Durham: That was my original intent was to get some clothes cause we didn't have no baby clothes. That's the truth. I wasn't there for money cause I had money in my wallet. I wasn't there to rape her cause I had a wife at home.

Officer: Why would you have bound her and put her in a box and tried to take her away from there? What were you gonna do? What was in your mind, Randall?

Durham: I was gonna take her off and drop her off somewhere. Just leave her there.

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