Mathis v. State

• Decision Date: 25 April 2012
• Docket Number: No. CA CR 11–1029.,CA CR 11–1029.
• Citation: 423 S.W.3d 91,2012 Ark. App. 285
• Parties: Robert Dale MATHIS v. STATE of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

2012 Ark. App. 285

423 S.W.3d 91

Robert Dale MATHIS

v.STATE of Arkansas, Appellee.

No. CA CR 11–1029.

Court of Appeals of Arkansas.

April 25, 2012.

The Lane Firm, Jonathan T. Lane, Little Rock, for appellant.

Dustin McDaniel, Atty. Gen., William Andrew Gruber, Asst. Atty. Gen., for appellee.

ROBERT J. GLADWIN, Judge.

On June 30, 2011, appellant Robert Dale Mathis was convicted in Lonoke County Circuit Court of aggravated assault, terroristic threatening, and committing these offenses in the presence of a child. He argues on appeal that the trial court abused its discretion in admitting evidence over his objection and that, without the objectionable evidence, there was insufficient evidence to convict. We affirm his convictions.

A bench trial was held on appellant's charges on June 30, 2011.¹ Amanda Mathis, appellant's wife, testified that on January 26, 2011, she instigated an argument with her husband that became physical. She said that her six-month-old child was there at the time; appellant was trying to leave; she did not want appellant to leave; appellant took the child out of the house; appellant “always leaves whenever he gets to drinking”; she grabbed him, putting her arms around him to keep him there; he was trying to push her off of him; she sustained marks on her neck and chest; she called 911 that night; she spoke to the dispatcher, asking for the police to come; and she was “more mad than hurt.” She concluded that appellant was not trying to hurt her but was just trying to get away. She said that at no time did he threaten to cause her harm, serious physical injury, or death.

Helena Davis, a dispatcher at the Lonoke County Sheriff's Office, testified that she received a call from appellant's wife on January 26, 2011. Ms. Davis described Mrs. Mathis as being distraught and crying when she called. Ms. Davis said that she received the call after appellant had left the residence and taken the child. She said that Mrs. Mathis was trying to get officers to look for her husband because he was supposed to be outside the residence holding her child just after assaulting her.

The trial court allowed Mrs. Mathis's 911 call to be considered as evidence under the “excited utterance” exception over appellant's objection to its admissibility that the time between the altercation and 911 call had not been established. Defense counsel further noted that “these are essentially prior inconsistent statements” that should not be considered as substantive evidence. The abstract of the 911 call contained statements from Mrs. Mathis that appellant had choked her, put her on the floor, and put a choke hold around her neck. She claimed that she could not breathe when appellant did this and that he threatened to kill her.

Appellant moved for a directed verdict, arguing that Mrs. Mathis testified on direct examination that appellant did not choke, threaten, or put her in substantial risk of death. Further, Mrs. Mathis testified that the marks on her neck were a result of appellant trying to get away from her when she tried to stop him from leaving. He argued that the prior inconsistent statements made in the 911 tape could only be used to evaluate credibility, not provide substantive evidence. He concluded that the State had failed to put forth any substantive evidence of any extreme indifference to the value of human life or any conduct that created a substantial danger of death or serious physical injury. Without any substantive evidence of the offenses, appellant claimed that there was no offense committed in the presence of a child.

The trial court denied the directed-verdict motion and found appellant guilty of aggravated assault, terrorist threatening, and committing the offenses in the presence of a child. Appellant was sentenced to an aggregate term of eleven years in the Arkansas Department of Correction. In this timely appeal that followed his conviction, appellant argues that the trial court abused its discretion in admitting as substantive evidence the 911 recording pursuant to the “excited utterance” hearsay exception.

The decision to admit or exclude evidence is within the sound discretion of the circuit court, and we will not reverse a circuit court's decision regarding the admission of evidence absent a manifest abuse of discretion. Pace v. State, 2010 Ark. App. 491, 375 S.W.3d 751. Nor will we reverse absent a showing of prejudice. James v. State, 2010 Ark. 486, 372 S.W.3d 800. Specifically, we have stated that an appellate court will not reverse a circuit court's ruling on a hearsay question unless the appellant can demonstrate an abuse of discretion. Pace, supra. An abuse of discretion is a high threshold that does not simply require error in the circuit court's decision, but requires that the circuit court act improvidently, thoughtlessly, or without due consideration. Id.

Appellant argues in this appeal that (1) prior inconsistent statements of witnesses who are available at trial are not hearsay, Arkansas Rule of Evidence 802 (2011); (2) Mrs. Mathis was not given an opportunity to affirm or deny her prior inconsistent statement, Arkansas Rule of Evidence 613 (2011); (3) prior statements can be considered for purposes of evaluating credibility, not as substantive evidence, Lewis v. State, 41 Ark.App. 89, 848 S.W.2d 955 (1993); and (4) absent the prior inconsistent statement, the State did not produce sufficient evidence to convict.

I. Sufficiency

Protection of appellant's double-jeopardy rights requires that we address appellant's sufficiency argument prior to addressing other asserted trial errors. Sullivan v. State, 2012 Ark. 74, 386 S.W.3d 507. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. When a defendant challenges the sufficiency of the evidence that led to a conviction, the evidence is viewed in the light most favorable to the State. Id. This court does not weigh the evidence presented at trial, as that is a matter for the fact-finder; nor do we assess the credibility of the witnesses. Beare v. State, 2010 Ark. App. 544, 2010 WL 2606525.

Appellant argues that the 911 recording contained allegations that appellant choked, caused bruises, and threatened the life of Mrs. Mathis. At trial, Mrs. Mathis specifically denied that those things occurred. Thus, appellant contends that, absent the prior inconsistent statement, the State would not have produced sufficient evidence to prove the charges against him. Appellant claims that the only evidence before the trial court would have been Mrs. Mathis's explanation offered when she testified. Thus, appellant argues that he was prejudiced by the admission of the 911 recording because it was the only evidence that supported the verdict.

The State maintains that there was substantial evidence presented to convict appellant of the charged offenses. The Lonoke County dispatcher testified that she received a 911 call from Mrs. Mathis reporting a domestic disturbance, and Mrs. Mathis was distraught and crying. She remembered Mrs. Mathis saying that appellant choked her, she could not breathe, he had his hands around her neck, and he threatened to kill her and “take her out.” Mrs. Mathis testified that on the night in question she and appellant argued, and as he was trying to take their child from the residence, she grabbed him to prevent his leaving, thus, sustaining marks on her neck and chest when he pushed her away. She said that she was upset at the situation, but that appellant was not trying to hurt her and did not threaten her during the course of the altercation. However, in her 911 call, the victim stated that appellant choked her, she could not breathe, and he threatened to kill her, all in the presence of their child. Lonoke County Sheriff's Deputy Christopher Hill testified that he responded to the victim's 911 call. When he met with the victim, he noticed bruising on her body, and, when he entered her residence, he saw broken dishes and cabinets knocked off the walls, indicating that there had been an altercation. Lonoke County Sheriff's Sergeant David Bufford testified that appellant fled the scene and went to a neighbor's house to hide.

The foregoing evidence, viewed in the light most favorable to the State, is sufficient to support the trial court's conclusion that appellant committed the charges against him. The fact-finder weighs the evidence presented and determines credibility of witnesses. Beare, supra. Further, evidence of appellant's hiding at a neighbor's house is corroborative of his guilt. See, e.g., Newton v. State, 2011 Ark. App. 190, 382 S.W.3d 711.

II. Prior Inconsistent Statements

Appellant contends that the trial court should have denied the admission of the 911 recording, arguing only that “prior inconsistent statements of witnesses who are available at trial are not hearsay.” Nevertheless, appellant admits that this argument was not made at trial, but urges this court to consider the point pursuant to Arkansas Rules of Evidence 103(d) (2011), which states that the court is not precluded from taking notice of errors affecting substantial rights although they were not brought to the attention of the court.

The State contends that appellant's argument is not preserved. We agree. A contemporaneous objection is generally required to preserve an issue for appeal, even a constitutional issue. Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003). However, our supreme court has recognized four exceptions to the contemporaneous-objection rule, commonly referred to as the Wicks exceptions. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). The four Wicks exceptions are (1) when the trial court fails to bring to the jury's attention a matter essential to its...