Lowry v. State

Citation216 S.W.3d 101
Decision Date20 October 2005
Docket NumberNo. CR 05-395.,CR 05-395.
PartiesMichael LOWRY, Appellant; v. STATE of Arkansas, Appellee.
CourtArkansas Supreme Court

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 appellee.

DONALD L. CORBIN, Justice.

Appellant Michael Lowry was convicted in the Saline County Circuit Court of one count of stalking in the first degree, one count of arson, and eleven counts of violating a protection order. He was sentenced to twenty years' imprisonment on the stalking charge and ten years' imprisonment on the arson charge, to be served consecutively, as well as one year in the county jail for each of the protection-order violations. Lowry appealed to the Arkansas Court of Appeals, which reversed on the grounds that the trial court erred (1) in denying his motion for continuance due to discovery materials being furnished by the State two days prior to trial, and (2) in allowing James Heath to testify during the State's case-in-chief when his name had not been provided as a witness before trial. See Lowry v. State, 90 Ark.App. 333, 205 S.W.3d 830 (2005). The State filed a petition for review of that decision, pursuant to Ark. Sup.Ct. R. 2-4(c)(ii), alleging that the court of appeals' decision conflicts with precedent from this court. We granted the State's petition. When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. See Watson v. State, 358 Ark. 212, 188 S.W.3d 921 (2004); Porter v. State, 356 Ark. 17, 145 S.W.3d 376 (2004). We affirm the judgment of conviction.

The record reflects that Lowry and Sandra Lewellen were romantically involved off and on for a period of three years, from April 1999 to May 2002. During that time, Lowry also dated Rhonda Brassiere, to whom he was married at the time of his trial. Lowry's dating both women caused friction in his relationship with Sandra. As a result, Sandra broke it off with him numerous times, whenever she heard rumors that Lowry was seeing Rhonda.

Their final breakup occurred on May 28, 2002. On that date, Sandra went to Lowry's home to confront him, after she had heard Rhonda driving past her trailer, honking her horn, as Rhonda routinely did whenever she was on her way over to Lowry's. Sandra knocked on the door several times, but Lowry would not answer. She finally became so angry that she kicked-in Lowry's front door, which hit Lowry in the nose, causing it to bleed. Lowry then dove at Sandra and began beating her. The two struggled for some time, but Lowry eventually pinned Sandra down on the ground, with his knee in her back. While he had her down, Lowry cupped his hand over her mouth and nose several times and said: "Go unconscious, Bitch." He then leaned down to her ear and told her: "I have a lighter . . . I will light your house, I will light your son's house, and I will light your mother's house with them in it[.]" When the police finally arrived on the scene, they broke up the fight and placed Sandra under arrest for breaking and entering.

Sandra received numerous injuries from her fight with Lowry, including several broken ribs. The following day, May 29, 2002, she applied for and was granted a temporary order of protection, prohibiting Lowry from having any contact with her or her children. Thereafter, Lowry proceeded to contact Sandra numerous times on the telephone; he also followed her a couple of times. On June 21, Lowry called Sandra and left a long message and then played her a love song. Also on that date, Lowry contacted Sandra's sixteen-year-old daughter, Kim Lewellen, and told her he just wanted to get in touch with Sandra to help her with the charges pending against her. At one point during the conversation, Lowry said: "I'm sorry, but I'm going to have to do this."

Later that same date, Kim and her boyfriend Dustin Tuberville bought a CD player and some speakers to install in Kim's 1993 Ford Escort. They had the CD player installed at the store, but Dustin and a friend installed the speakers later that evening while they waited for Kim to get off work.

While she was working, Kim received a visit from Lowry. He spoke with Kim briefly and gave her the engagement ring that he had previously given her mother. He then went out to the parking lot and spoke to Dustin. He made small talk about how Kim's car was running and then got into his truck to leave. Before he left, Lowry called Dustin over to his truck and told him that he never meant to hurt Sandra, but that she was the one that broke into his house and kicked-in his door. Lowry showed Dustin his black eye and also a bite mark that he received in the altercation with Sandra. As Dustin started to walk away, he heard Lowry say: "They're going to burn for this shit." Dustin reported this threat to Kim.

Later that same evening, Kim dropped Dustin off in Benton and returned home around 11:00 p.m. When she returned home, she called Dustin, and they talked until around 1:00 a.m., when Kim went to bed. Shortly thereafter, both Kim and Sandra heard a loud noise and saw the bright light of flames outside their mobile home. They ran outside to find the front of Kim's car, which was parked right next to Sandra's car, engulfed in flames. They went to a neighbor's house and called 911. The fire eventually spread to Sandra's car. When police and fire personnel arrived on the scene, Sandra told them that Lowry had set their cars on fire.

The next incident occurred the following day, June 22, 2002. Kim and Dustin were driving in Kim's brother's truck when they saw Lowry in his truck in front of them at a stop sign. Dustin, who was angry from the night before, "flipped [Lowry] off." Lowry responded by pulling halfway into the parking lot of a nearby laundry mat, where he appeared to be making a phone call. Because he only pulled in halfway, he was blocking Kim's path. When she drove around him, Lowry pulled in behind them and began chasing them at a high rate of speed, remaining close to their bumper. Kim was scared and crying during the episode. Lowry finally backed off once they got about a mile from Kim's home.

On July 31, 2002, a little over a month after the car burnings and the high-speed chase, Sandra was leaving for work in the morning, when she noticed that someone had taken a knife and shredded her new patio furniture. One week after that, on the morning of August 6, Sandra again noticed damage to her property as she was leaving for work. On that date, she noticed Rhonda driving by her trailer, honking her horn, as was her routine. Sandra then heard a truck engine running outside her home. She thought that it was someone just easing their way through the trailer park; however, the truck did not pass by, but kept hanging around for a minute or two. She did not look outside to see who it was, because she was in a hurry to get to work. She finally heard the truck drive off. Moments later, as she was walking to her truck, which she had purchased to replace her burned vehicle, she noticed that the whole side of it had been "keyed," or scratched up by someone using a key or similar metal object. She called the police and filled out a report. While she was doing so, Rhonda drove back by her home. When she finished the report, Sandra drove off to go to work. At the bottom of the hill near her trailer park, she saw Lowry sitting in his truck. He pulled out in front of her and sped off. A little further down the road, he pulled over, got out of his truck, and was standing on the side of the street, waving his arms and laughing at Sandra as she drove by.

The final incident occurred the following day, August 7, 2002. As Sandra was again leaving for work, she saw Lowry sitting in a nearby parking lot. When she passed the lot, Lowry pulled out behind her and began to follow her. Sandra became frightened and called 911. According to Sandra, Lowry was riding so close to her rear bumper that he would have hit her if she had tapped her brakes. At one point, she noticed that Lowry was holding up a handmade sign that read, "Sandy I love you." Shortly thereafter, Deputy Richard Friend, of the Saline County Sheriff's Department, arrived and stopped Lowry. When he pulled in behind Lowry, he noticed movement in the cab of the truck and saw Lowry put his arm behind the seat. Friend asked Lowry about the sign he had held up, but Lowry denied any such sign. Despite his denial, the officer recovered the sign from Lowry's vehicle. He also recovered two guns and ammunition. Lowry later admitted that one of the guns was loaded and that he had unloaded it after being stopped.

I. Sufficiency of the Evidence

Lowry's first two points on appeal are challenges to the sufficiency of the evidence to support his convictions for first-degree stalking and arson.1 In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Stenhouse v. State, 362 Ark. 480, 209 S.W.3d 352 (2005); Davis v. State, 362 Ark. 34, 207 S.W.3d 474 (2005). We will affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. Additionally, we consider all the evidence, including that which may have been inadmissible, in the light most favorable to the State. Hampton v. State, 357 Ark. 473, 183 S.W.3d 148 (2004); George v. State, 356 Ark. 345, 151 S.W.3d 770 (2004).

When circumstantial evidence alone is relied upon, it must exclude every other reasonable hypothesis than that of the guilt of the accused, or it does not amount to substantial evidence. Stewart v. State, 362 Ark. 400, 208 S.W.3d 768 (2005); Harper v. State, 359...

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