Jones v. State

• Decision Date: 17 January 2002
• Docket Number: No. 01-695.,01-695.
• Parties: Blake JONES v. STATE of Arkansas.
• Court: Arkansas Supreme Court

64 S.W.3d 728

347 Ark. 409

Blake JONES v. STATE of Arkansas.

No. 01-695.

Supreme Court of Arkansas.

January 17, 2002.

H. Brock Showalter, Deputy Public Defender, Fayetteville, for appellant.

Mark Pryor, Att'y Gen., by Vada Berger, Ass't Att'y Gen., Little Rock, for appellee.

ROBERT L. BROWN, Justice.

This is an appeal by appellant Blake Jones from an adjudication of delinquency based on the offense of terroristic threatening in the first degree, a Class D felony. He was sentenced to twenty-four months of supervised probation and seven days to serve in the Juvenile Detention Center. Jones raises two points on appeal: (1) the juvenile judge erred in denying his motion for directed verdict because the State had not proven the requisite mental intent for terroristic threatening; and (2) the rap song involved is protected speech under both the Arkansas and United States Constitutions. We affirm the adjudication and the disposition.

Blake Jones was fifteen at the time of the events giving rise to this appeal. While attending Fayetteville High School, a fellow student named Allison Arnold, who was also fifteen, had befriended him. The two had been friends for about three years. At various times while Jones was away at juvenile detention facilities for various offenses, Arnold wrote letters to him. On occasion, Jones composed rap songs and gave them to Arnold to read. In her trial testimony, Arnold said that he wrote poems and notes and gave them to her, and that "He'd always say he was expressing himself through a poem." She said some of those rap songs or poems contained violent language, but they were not directed toward any particular person. She described her relationship with Jones as a friendship in which she "just tried to witness to him." She had taken him to church with her family and had spoken to him about religious matters. Arnold added that she had wanted to help Jones and "give him hope."

On February 15, 2001, during the second period of the school day, Jones wrote several notes to Arnold in class and gave them to her. She refused to write back and let him know that she was not going to write notes because she wanted to pay attention in class. Her refusal to respond made Jones mad. He testified that upon his recent return to Fayetteville High School from the detention facility, their friendship had cooled, and Arnold had acted "snobby" toward him. After she refused to write back to him, he wrote a rap song and gave it to her:

I hope you remember this day, cuz you'll forever be the cause of my violence and rage,

You steadily rejected me, now I'm angry and full of fucking misery,

You try to be judgmental telling me to act right. Before you take the speck from my eye, take the fucking board from your eye,

I didn't do nothing to deserve this, and now I'm stressed, and when I'm stressed, I'm at my best,

I'm a motherfuckin murderer, I slit my mom's throat and killed my sister. You gonna keep being a bitch, and I'm gonna cliche [click],

My hatred and aggression will go towards you, you better run bitch, cuz I can't control what I do. I'll murder you before you can think twice, cut you up and use you for decoration to look nice,

I've had it up to here bitch, there's gonna be a 187 on your whole family trik [trick],

Then you'll be just like me, with no home, no friends, no money,

You'll be deprived of life itself, you won't be able to live with yourself,

Then you'll be six feet under, beside your sister, father, and mother,

You'll be in hell, and I'll be in Jail, but I won't give a fuck cuz we all know I've been there before,

Goodbye forever my good friend. I'll see you on judgement day when I'm punished for my sin.¹

Jones did not give Arnold the rap song immediately, but he handed it to her during fifth period. While Arnold read the song, Jones was laughing. He asked Arnold whether she liked the rap lyrics, and she told him that she thought they were "sick and gross." She further testified that she was frightened and appalled because: "[H]e knew where I lived, he knew my family, he wrote about my sister[ ] and my dad, that's written to my family. It was handed to me, and it was given to me. It was written for me." Jones asked her to give the note with the rap lyrics back to him, and she refused.

There are two matters of factual dispute surrounding this incident. First, although Jones claimed he told her "Don't take this serious," Arnold denied that he made the statement. The second factual dispute is whether or not Arnold first asked to see his writing. In Jones's written statement, he asserted that Arnold asked to see the note. Arnold denied this in her trial testimony.

Instead of handing the note back to Jones, Arnold asked the teacher if she could use the restroom. She testified that this interchange with her teacher occurred within three to five minutes after she read the note. A witness for Jones, Sarah Stone, testified that the time differential was more like fifteen minutes. After getting permission to leave the classroom, she went directly to principal John Wesson's office. Once in the principal's office, she showed him the note. He called the Fayetteville Police Department and then called Jones to the office.

Officer David Williams arrived, and Arnold told him that she felt scared because she thought Jones was capable of carrying out the conduct described in the note. According to Officer Williams's trial testimony, Arnold was crying and seemed scared of Jones, positioning herself so that the police officer physically separated the two of them. Jones, on the other hand, told the police officer that he did not believe that "this was a big deal, and he didn't understand why everyone was upset." He volunteered an apology to Arnold. He also gave a statement admitting that he wrote the note. According to Principal Wesson's testimony, he told the principal and Officer Williams that he was "modeling his writing after [rap artist] Eminem." He insisted that he was simply writing "to get his feelings out." In his written statement he said: "I got mad and wrote a letter to express myself. It was a rap and pretty gruesome." Principal Wesson testified that Jones seemed to have no understanding that his writing could frighten or harm another person.

On February 16, 2001, the prosecuting attorney filed a Petition for Adjudication of Delinquency against Jones. The petition alleged that Jones had committed an act of terroristic threatening in violation of Ark. Code Ann. § 5-13-301 (Repl.1997), a Class D felony.² On February 27, 2001, the petition was heard in juvenile court. The prosecutor presented the testimony of Arnold, Officer Williams, Principal Wesson, and Allison Arnold's father, J.R. Arnold. At the conclusion of the State's case, the defense moved for a directed verdict on the specific ground that the State had failed to prove the requisite intent to terrorize or cause extreme fright. The juvenile judge denied the motion. Defense counsel then presented the testimony of Fayetteville High School student Sarah Stone, who testified about Jones's history of writing rap songs, and next the testimony of Jones himself. After Jones's testimony was concluded, the following exchange occurred:

THE COURT: Thank you, Mr. Jones. You can return to your seat. Call your next, Ms. Poole.

DEFENSE COUNSEL: The defense rests, Your Honor.

THE COURT: Thank you. Statements, Ms. Robinson?

The defense did not renew its motion for directed verdict. The State then immediately began its closing argument.

After closing arguments, the juvenile judge ruled from the bench. She found that the rap lyrics constituted a threat. She noted that Jones was mad at Arnold when he wrote the rap song and that the lyrics were intended to cause Arnold fear. The judge further observed that Arnold knew of Jones's criminal history, and that Arnold had been intensely frightened and upset by the episode. She adjudicated Jones delinquent on the charge of terroristic threatening and sentenced him to 24 months of supervised probation, as well as seven days in a juvenile detention facility. She specifically ordered that Jones have no contact with Arnold or her family. Because Jones was already in state custody at the time of the incident and resultant trial, the judge committed Jones to the custody of the Department of Youth Services.

I. Sufficiency of the Evidence

Jones's first point on appeal is that the trial judge erred in denying his motion for a directed verdict based on the fact that the State failed to prove the required mental state for terroristic threatening.³ We are precluded from addressing this point because it is not preserved for our review.

Under the Juvenile Code, the Arkansas Rules of Criminal Procedure apply to delinquency proceedings. Ark.Code Ann. § 9-27-325(f) (Supp.2001); see also L.H. v. State, 333 Ark. 613, 973 S.W.2d 477 (1998); Mason v. State, 323 Ark. 361, 914 S.W.2d 751 (1996). Arkansas Rule of Criminal Procedure 33.1 states in relevant part:

(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution's evidence, then the motion must be renewed at the close of all of the evidence.

(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment.

Ark. R.Crim. P. 33.1(b)-(c). Thus, if a defendant fails to renew a motion for dismissal at the close of all the evidence, the sufficiency challenge is deemed waived on appeal. See also Trammell v. State, 70 Ark.App. 210, 16 S.W.3d 564 (2000) (juvenile adjudicated delinquent on terroristic threatening charge waived his sufficiency challenge on appeal when...