Harris v. State, 00-438

• Decision Date: 20 December 2000
• Docket Number: 00-438
• Parties: PAMELA TATRICE HARRIS, APPELLANT V. STATE OF ARKANSAS, APPELLEE CACR00-438 20 December 2000 APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, NO. CR98-2377, CR99-1612, HON. DAVID BOGARD, JUDGE AFFIRMED Sam Bird, Judge. Appellant Pamela Tatrice Harris brings this appeal from the Pulaski County Circuit Court in which she was found guilty of aggravated assault. In addition, based upon the conviction, the court revoked Harris's 1998 probation on the charge of second-degree battery. She brings this appeal in which she challenges the sufficiency of the evidence used to convict her on the aggravated-assault charge. Her attorney also contends that there are no meritorious grounds that would support an appeal of the revocation of her probation. We affirm the aggravated-assault conviction and the revocation of Harris's probation. Harris was charged with aggravated-assault after it was alleged that she threatened Monica Utsey and Tamea Utsey with a firearm, creating a substantial danger of death or serious physical injury. Harris waived her right to a jury trial, andat the bench trial, Monica Utsey testified that on
• Court: Arkansas Court of Appeals

PAMELA TATRICE HARRIS, APPELLANT

V.

STATE OF ARKANSAS, APPELLEE

CACR00-438

20 December 2000

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, NO. CR98-2377, CR99-1612, HON. DAVID BOGARD, JUDGE

AFFIRMED

Sam Bird, Judge.

Appellant Pamela Tatrice Harris brings this appeal from the Pulaski County Circuit Court in which she was found guilty of aggravated assault. In addition, based upon the conviction, the court revoked Harris's 1998 probation on the charge of second-degree battery. She brings this appeal in which she challenges the sufficiency of the evidence used to convict her on the aggravated-assault charge. Her attorney also contends that there are no meritorious grounds that would support an appeal of the revocation of her probation. We affirm the aggravated-assault conviction and the revocation of Harris's probation.

Harris was charged with aggravated-assault after it was alleged that she threatened Monica Utsey and Tamea Utsey with a firearm, creating a substantial danger of death or serious physical injury. Harris waived her right to a jury trial, andat the bench trial, Monica Utsey testified that on March 31, 1999, she was working at Perfect Touch, a beauty salon in the Pike Plaza Shopping Center, washing her sister, Tamea Utsey's, hair. She said Tamea's boyfriend had told them that Harris and her friend, Kelly, were outside, and that Harris had a gun and was looking for Tamea. Utsey and her sister left the beauty shop to confront them. Monica called the police before going outside. She said that they spoke and that "we were not going to turn our backs on our enemies. My sister had just got into it with them earlier," referring to an earlier argument between Harris and Tamea concerning a mutual boyfriend. After they spoke, Harris pulled a gun on them. Someone standing near Harris grabbed the gun out of her hand, and the girls began fighting. Monica described the gun that Harris pulled on them as a silver-colored gun with a black handle. Monica testified that she was standing approximately four or five feet from Harris at the time. Although she testified that she was shocked and felt in danger after Harris had pulled the gun on her, Monica stated that Harris did not do anything that would have made her think that she was cocking the weapon.

Karl Sorrells of the North Little Rock Police Department testified that he was called to a disturbance at the Pike Plaza Shopping Center on March 31, 1999. He said that he had been advised that a gun was involved, that Monica and Tamea both described the gun as chrome-plated, and that Monica had described it as having a black handle. He said that the gun was found, without a magazine, in Harris's car and that he observed Officer Ford take the gun into custody. The gun, which had a serial number of 434476 and was a Larson .38 caliber, was turned over to the desk officer, who, in turn, turned it over to the property officer. Sorrells testified that the gun had been in the possession of the North Little Rock Police Department, and that he had retrieved it from the property room on the morning of the trial. He said that he broke the seal on the box and that the serial number on the gun was 434476. The gun was then admitted into evidence. He testified that neither Monica nor Tamea asserted that Harris had made any threatening remark when she pointed the gun at them. Monica and Tamea simply stated that Harris had pointed at gun at them.

The State rested, and Harris moved for a directed verdict, contending that neither Monica or Tamea were in substantial danger because, as Officer Sorrells testified, the gun was not loaded, it had not been cocked, and Harris had not made any threatening statements to either Monica or Tamea. Therefore, Harris argued, the State had failed to prove that there was a substantial danger of death or serious physical injury. The court denied the motion. After Harris rested, she renewed her directed-verdict motion, and the court denied the motion.

The court then found her guilty, and it stated,

I think that clearly it is aggravated assault. I mean, she went in a hostile mood, goes to this lady's place of business, has no reason to be there, other than she is coming to confront this lady. The lady goes out. She points a gun at her. This is certainly putting her in great, feeling of great panic and distress. The gun was found in her presence, in her car, and clearly she had a gun out there that day and she threatened this lady.

The court sentenced Harris to five years in the Arkansas Department of Correction. It also revoked her probation and imposed a sentence of five years, making the sentences run consecutively.

Aggravated-assault Conviction

Harris brings this appeal challenging the sufficiency of the evidence used to convict her of aggravated assault. We consider a sufficiency-of-the-evidence first argument in order to preserve an Harris's right to freedom from double jeopardy. King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999). A motion for a directed verdict is a challenge to the sufficiency of the evidence. Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996); Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995); Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992), cert. denied, 514 U.S. 1018 (1995); Miller v. State, 68 Ark. App.332, 6 S.W.3d 812 (1999); Pettigrew v. State, 64 Ark. App. 339, 984 S.W.2d 72 (1998). When a defendant challenges the sufficiency of the evidence, we consider only the evidence that supports the verdict. Stipes v. State, 315 Ark. 719, 870 S.W.2d 388 (1994); Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993). We also view the evidence in the light most favorable to the State. Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998); Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). The test is whether there is substantial evidence to support the verdict. Miller v. State, supra; Jameson v. State, 333 Ark. 128, 970 S.W.2d 785 (1998). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Ward v. State, 64 Ark. App. 120, 981 S.W.2d 96 (1998); Jenkins v. State, 60 Ark. App. 122, 959 S.W.2d 427 (1998). Resolution of conflicts in testimony and assessment of the credibility of witnesses is for the fact-finder. Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987); Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986). Furthermore, the trial court is not required to believe any witness's testimony, especially that of the accused, since he is the person most interested in the outcome of the case. Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989); Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986).

Harris argues that the court erred in finding her guilty of the charge because there was neither evidence that she had attempted to fire the gun nor that she had made any threatening remarks to Tamea or Monica. In addition, she argues that when the police officer found the gun, it did not have a magazine. As authority for her argument, Harris cites Wooten v. State, 32 Ark. App. 198, 799 S.W.2d 560 (1990), for the proposition that a person does not commit aggravated assault merely by showing the use of a deadly weapon and the creation of apprehension on the part of the victim. In addition, she argues that because the gun was not loaded, she did not create any danger. She cites Johnson v. State, 132 Ark. 128, 200 S.W. 982 (1918), for the argument that the mere act of drawing a gun, if accompanied by threats evidencing an intention to use the gun on the person threatened constitutes an assault.

She argues that based upon Wooten and Johnson, supra, this court should reduce her conviction to assault in the third degree, pursuant to Ark. Code Ann. § 5-13-207 (Repl. 1997).

Arkansas Code Annotated section 5-13-204(a) (Repl. 1997) states:

A person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he purposely engages in conduct that creates a substantial danger of death or serious physical injury to another person.

There is sufficient evidence to uphold Harris's conviction. In Holloway v. State, 18 Ark. App. 136, 711 S.W.2d 484 (1986), the appellant was convicted of aggravated assault after he approached two women in a car, asked them for a ride and, when they refused, he pointed a gun in the window of the car. He appealed his conviction, arguing that State failed to prove that the gun he used was loaded. The court wrote:

In the first place, there was no direct evidence that the gun used in the assault was loaded. The statute defining aggravated assault requires that the accused engage in conduct "that creates a substantial danger of death or serious physical injury to another person." The commentary to the statute states that it is unique to the Arkansas Criminal Code. It is not based upon the use of a deadly weapon or the creation of fear, but requires the creation of substantial danger. However, we think the jury could have found, under the evidence in this case, that an aggravated assault was committed even though there was no direct evidence that the gun was loaded. In a recent case, the Supreme Court of the United States said:

In addition, the display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue. Finally, a gun can cause harm when used as a bludgeon.

Holloway v. State, 18 Ark. App. 136, 140, 711 S.W.2d 484, 486 (1986), overruled on other grounds, Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986), (citing McLaughlin v. United States, 106 S. Ct. 1677 (1986)). Furthermore, the court held in Ball v. State, 192 Ark. 858, 859, 95 S.W.2d 632, 633 (1936), that "If one present[s] a loaded pistol at another, threatening to shoot him, and being sufficiently near for the shot to take effect, it is an assault. Under such circumstances, the pistol is presumed to have been loaded, and if it...