Lowry v. State

• Decision Date: 23 March 2005
• Docket Number: No. CA CR 03-1065.,CA CR 03-1065.
• Citation: 205 S.W.3d 830
• Parties: Michael LOWRY, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

205 S.W.3d 830

Michael LOWRY, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 03-1065.

Court of Appeals of Arkansas, Divisions III, IV.

March 23, 2005.

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The Cannon Law Firm, P.L.C., by: David R. Cannon, Little Rock, for appellant.

Mike Beebe, Att'y Gen., by: Brent P. Gasper, Ass't Att'y Gen., Little Rock, for appellees.

ANDREE LAYTON ROAF, Judge.

Appellant Michael Lowry was convicted in a jury trial of stalking in the first degree, arson, and eleven counts of violation of a protective order. Lowry was sentenced to twenty years' imprisonment on the stalking charge, ten years' imprisonment on the arson charge, and one year imprisonment in the Saline County Jail for the violation of protective-order charges. The one-year jail sentence was merged with the other sentences, and the prison terms were run consecutively to each other. On appeal, Lowry argues that the trial court erred in (1) denying his motions for directed verdict on the stalking and arson charges; (2) admitting evidence of a July 6, 2002, letter in violation of Ark. R. Evid. 402; (3) allowing testimony regarding two incidents involving damage to the victim's personal property in violation of Ark. R. Evid. 402; (4) allowing the testimony of State's witness James Heath when he was not disclosed as a witness during discovery; and (5) denying his motion for a continuance.

The day before trial, Lowry's counsel moved for a continuance, asserting that the State had provided a substantial amount of the case file just two days prior to the trial; that the case would be unfairly prejudiced because she would have to redevelop her trial strategy; and that she needed more time to adequately review all of the information. The motion was denied; however, the trial court indicated that it would entertain a motion to disallow use of the evidence during the trial. During the trial, the following evidence was presented.

The victim, Sandra Lewellen, and Lowry dated for approximately three years. The couple was at one time engaged to be married, but the engagement was terminated when Lewellen accused Lowry of being involved with another woman, Rhonda Brassiere, whom he subsequently married. During their relationship, Lewellen and Lowry engaged in several verbal and physical altercations. On May 28, 2002, Lewellen went to Lowry's house to confront him about seeing Rhonda. When she arrived, Lowry began beating her. Lewellen received bruises to her face, shoulders, and arms, and had four cracked ribs. During the altercation, Lowry choked her, and stated, "Go unconscious bitch." He also told her that he would set fire to her and her family's house while they were in it. Lewellen testified that on another occasion Lowry had told her that he had previously set fire to his own house and that he had considered setting fire to his truck to collect the insurance proceeds.

On May 29, 2002, Lewellen obtained a temporary order of protection, which prohibited Lowry from contacting her and her daughter Kim. On the following day, Lowry attempted to contact Lewellen by speaking with one of her friends. On May 31, 2002, Lowry left two messages on Lewellen's answering machine, indicating that he needed to talk to her. Lewellen testified that, from May 31 until June 22, she received a total of seventeen calls from Lowry's telephone number. Lewellen and another witness for the State also testified that they observed Lowry driving slowly past Lewellen's home.

In addition to the phone calls, Lewellen testified, over Lowry's objection, that on July 6, 2002, she had received an unsigned letter, which stated, "Thank's for cleaning up the lake lot, and by the way I do swallow." She said that Lowry had property on Lake Conway; that she had helped him clear the property; and that she and Lowry had spent time at the property. Also, after Lewellen purchased new patio furniture, during the night, the furniture had been shredded. She testified that she did not see the incident occur, but stated that she was sure it was Lowry. She also testified that on one night all of the bolts on her butane heater were unscrewed and that she had to call in a repairman to fix it. She said that the repairman indicated that the heater had been tampered with. She attributed this incident to Lowry and Rhonda. Lewellen's locks to the doors of her home were also superglued, and according to Lewellen, Lowry told her that Rhonda had superglued the locks. Rhonda also had a habit of driving past Lewellen's home on her way to Lowry's house and honking her horn. Lewellen testified that on, August 6, 2002, while she was getting ready for work, she heard the sound of a truck engine outside of her house. She said that, because she was in a hurry, she did not look outside to see who it was, but that, when she went to get into her truck, it had been damaged by being "keyed." She stated that Lowry's truck had a diesel engine; that she thought it was Lowry's truck that she heard; and that when she reached the end of her street, Lowry was sitting at the stop sign.

Lowry was arrested several times for violating the order of protection. On August 7, 2002, Lowry was arrested for following Lewellen in her vehicle and holding up a sign that read, "Sandy, I love you." In a search incident to his arrest, an officer discovered .22 magnum rounds, a .22 magnum pistol, and a .45 semi-automatic pistol.

On June 21, 2002, Lowry contacted Lewellen's daughter, Kim, at Kim's place of employment. Kim testified that she and her boyfriend, Dustin Tuberville, had just returned from having had a CD player installed in her car. They then drove to Kim's job, and Tuberville remained outside installing speakers in her car. During this encounter, Lowry gave Kim the engagement ring he had given Lewellen and apologized for the May 28, 2002 incident. Kim also told Lowry in response to his questioning that her mother's male friend had fixed her car. Kim testified that Lowry said repeatedly that day, "I am sorry, but I am going to have to do this." After leaving Kim's job, Lowry spoke to Tuberville in the parking lot and was again apologetic. However, Tuberville testified that he overheard Lowry say, "They are going to burn for this shit," as he was leaving. Tuberville told Kim about the remark.

That night, at 1:00 a.m., Lewellen was awakened by a loud roar at her bedroom window. She described the noise as a loud "whooshing" sound. Lewellen discovered that her and her daughter's cars were on fire. They called 911 and immediately left the house. As she was leaving, Lewellen noticed that the flames were five to six feet high and that the paint on her house was beginning to bubble from the heat of the fire.

Officers Baugh and Preator responded to the call. En route to Lewellen's house, they observed a tan Chevrolet GMC pickup truck with a ladder rack on it parked down the hill from Lewellen's trailer park. Baugh shone his spotlight on the truck, and the officers saw a pair of feet standing behind the truck. The person was wearing brown and black hiking boots and jeans. The officers surmised that the person was "relieving" himself on the side of the road and continued on.

After the fire was extinguished, an investigation took place. Lewellen indicated that she believed that Lowry had started the fire. The fire department and police officers searched the area for accelerants, but none were found, and the two vehicles were removed. After taking Lewellen's report, the officers went to Lowry's home. There they observed his tan pickup truck with a ladder rack. In the bed of the truck, they saw a 55-gallon burn-barrel drum. Lowry was taken into custody for questioning, but he denied being involved in the fire incident. Officer Preator testified that she saw the brown and black boots in Lowry's house that they had seen earlier while en route to Lewellen's home, but they were not confiscated.

After Lowry was taken into custody, the officers returned to Lewellen's home. On this second trip, the officers smelled gasoline. All of the officers testified that they had not smelled any accelerants initially, but during the second trip there was a very strong odor of gasoline. It was determined that the fire began at the front of Kim's car and traveled toward the back of her car; however, the fire chief testified that he could not say how the fire was started. The fire chief admitted that improperly installed electrical items may cause fires and conceded that he was unaware that Kim had had a CD player and speakers installed in her car on the day of the fire. He did say that a fire that is accelerated by gasoline makes a whooshing sound and is very volatile as opposed to an electrical fire, which makes a popping sound and burns more slowly. The fire chief also testified that he had previously responded to a fire involving Lowry's home.

James Heath, the tow truck driver, testified that when he removed the cars from the scene, he observed gasoline pouring from the front end of both vehicles. He said that he picked the two vehicles up from the rear to place them on the flatbed and that gasoline poured out from the engine compartments.

On June 28, 2002, another order of protection was issued, prohibiting Lowry from committing acts of domestic abuse against Lewellen, from harassing, communicating, or terrorizing her, and from visiting her residence or any place that her daughter Kim might be.

Following the State's case-in-chief, Lowry moved for a directed verdict on the stalking and arson charges, and for a mistrial based on the admission of James Heath's testimony because he had not been disclosed as a witness prior to trial. The motions were denied. The motions were renewed at the close of the evidence, and were again denied.

Before addressing Lowry's points on appeal, we first consider the motion for summary reversal filed by Lowry. In the motion, Lowry requested summary reversal due to the court reporter's...