Holmes v. State, CR-18-836

• Court: Arkansas Court of Appeals
• Writing for the Court: BRANDON J. HARRISON, Judge
• Citation: Holmes v. State, 2019 Ark. App. 384, 586 S.W.3d 183 (Ark. App. 2019)
• Decision Date: 18 September 2019
• Docket Number: No. CR-18-836,CR-18-836
• Parties: Donnie Lee HOLMES, Appellant v. STATE of Arkansas, Appellee

2019 Ark. App. 384

586 S.W.3d 183

Donnie Lee HOLMES, Appellant

v.STATE of Arkansas, Appellee

No. CR-18-836

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered September 18, 2019

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 looking at the light most favorable to the State[.]

The same argument has been raised on appeal.

What is the proof of record? First, the State never produced a firearm that Holmes purportedly possessed or constructively possessed. No witness testified that he or she actually saw Holmes holding, pointing, brandishing, or shooting a gun. No video or photographic evidence showed that Holmes possessed a gun at any time. Holmes was not arrested with a gun on his person. In other words, on the firearm charge, the State presented a circumstantial case. So we must ask whether the record contains enough evidence to convict Homes of constructively possessing a firearm.

To constructively possess a firearm means knowing it is present and having control over it. Bradley v. State , 2018 Ark. App. 586, at 5, 564 S.W.3d 569, 573 (noting that "constructive possession" has been defined as "knowledge of presence plus control"). Possession may be imputed when the contraband is found in a place that is immediately and exclusively accessible to the accused and subject to his or her dominion and control, or to the joint dominion and control of the accused and another. Id. Control and knowledge can be inferred from the circumstances. Nichols v. State , 306 Ark. 417, 815 S.W.2d 382 (1991). An accused's suspicious behavior, coupled with physical proximity to the contraband, can indicate possession. Pokatilov v. State , 2017 Ark. 264, at 4, 526 S.W.3d 849, 854.

Here is the testimony relating to the firearm-possession charge. Nowden testified that on October 27, she and Anthony Butler drove first to Taco Bell and then to Burger King. While they were waiting in the drive-through line at Burger King, Nowden spotted Holmes, on foot, in the car's rear-view mirror.

PROSECUTOR : And when you got to that Burger King, did you see Mr. Holmes at some point?

NOWDEN : Yes.

PROSECUTOR : Okay. Can you explain that to the Court?

NOWDEN : We was just in line in the drive-through line waiting to get our food, and something just told me to watch my surroundings because we had already seen him at Taco Bell. And I just seen him running up, and I just hurried up and pulled off.

....

NOWDEN : I mean, he was running, and he like shot in the air, and I just drove off.

PROSECUTOR : You said he shot up in the air?

NOWDEN : Yes.

PROSECUTOR : How many gunshots did you hear?

NOWDEN :

...