Moses v. State, 00-119
Decision Date | 07 February 2001 |
Docket Number | 00-119 |
Citation | 39 S.W.3d 459 |
Parties | MALCHIJAH JAKE MOSES, APPELLANT V. STATE OF ARKANSAS, APPELLEE CACR 00-119 Arkansas Court of Appeals DIVISION IV 7 February 2001 APPEAL FROM THE CLARK COUNTY CIRCUIT COURT: , HONORABLE JOHN THOMAS, CIRCUIT JUDGE AFFIRMED John F. Stroud, Jr., Chief Judge Appellant, Malchijah "Jake" Moses, was convicted of stalking in the first degree and sentenced to serve a period of eleven years in the Arkansas Department of Correction. He contends that the trial court erred in denying his motions: (1) for directed verdict, and (2) to dismiss the stalking charge based on double jeopardy. We affirm. Appellant and his wife, Cheryl Moses, separated in August 1998. After the separation, appellant began making numerous telephone calls to Ms. Moses at all hours of the day and night. The calls grew so frequent that Ms. Moses purchasedcaller identification and would not answer the telephone when she knew it was him. On the morning of |
Court | Arkansas Court of Appeals |
Appellant, Malchijah "Jake" Moses, was convicted of stalking in the first degree and sentenced to serve a period of eleven years in the Arkansas Department of Correction. He contends that the trial court erred in denying his motions: (1) for directed verdict, and (2) to dismiss the stalking charge based on double jeopardy. We affirm.
Appellant and his wife, Cheryl Moses, separated in August 1998. After the separation, appellant began making numerous telephone calls to Ms. Moses at all hours of the day and night. The calls grew so frequent that Ms. Moses purchasedcaller identification and would not answer the telephone when she knew it was him.
On the morning of December 15, 1998, appellant telephoned Ms. Moses at 2:30 a.m. Although she told him that she would not talk to him at that time of the morning, he called again at 3:30 a.m. and 6:15 a.m. Appellant called Ms. Moses's mother, Karen Rutledge, at 8:15 a.m., making accusations such as she was keeping Ms. Moses from talking to him. At approximately 8:25 that morning, appellant called Ms. Moses at work and told her that her son Jonathan would die. Based upon this occurrence, a municipal judge issued a no-contact order in favor of Ms. Moses against appellant on that same date; however, the order was not served on appellant until two days later. Appellant was ultimately convicted of terroristic threatening in municipal court based upon this December 15, 1998, conversation with Ms. Moses wherein he said Jonathan would die.
On December 22, 1998, appellant called Ms. Moses and Ms. Rutledge and told them that he had reported Ms. Moses to the Department of Human Services for abusing their daughter, Tara. He also left numerous messages on Ms. Moses's answering machine over the course of that day. In those messages, appellant told Ms. Moses to either talk to him or "that's it"; he told her "don't ever be a mother to my children"; and that he loved his children, he would do anything to protect them, and that she would not stand between him and his children. In his message at 11:06 p.m., appellant told Ms. Moses to call him before it was "too late."
Appellant was to have visitation with his three-year-old twins on the morning of December 23, but he called Ms. Moses at 7:30 that morning and told her he did not feel well. Actually, appellant drove to Hot Springs to purchase a gun and ammunition. The clerk who sold the gun to him was so concerned by his demeanor that he contacted the sheriffs' offices in Garland County and Clark County. Shortly thereafter, Ms. Moses was informed by the acting chief of police of Arkadelphia that he had information that appellant had purchased a gun and ammunition that day in Hot Springs in contravention of the no-contact order. The police set up a watch, and appellant was stopped upon returning to Arkadelphia. A .22 caliber pistol and a box of ammunition was found in his vehicle, at which time he was arrested.
For his first point, appellant argues that the trial court erred in denying his motion for directed verdict on the charge of stalking in the first degree. A motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000). In reviewing a motion for directed verdict, the evidence is viewed in the light most favorable to the State, and a conviction will be affirmed if there is substantial evidence to support it. Id. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation and conjecture. Id.
Arkansas Code Annotated section 5-71-229 (a)(1)(A) (Repl. 1997) provides:
(a)(1) A person commits stalking in the first degree if he purposely engages in a course of conduct that harasses another person and makes a terroristic threat with the intent of placing that person in imminent fear for the death or serious bodily injury of his or her immediate family and he:
(A) Does so in contravention of an order of protection consistent with the Domestic Abuse Act of 1991, § 9-15-101 et seq., or a no contact order as set out in subdivision (a)(2)(A) of this section, protecting the same victim or victims, or any other order issued by any court protecting the same victim or victims;
"Course of conduct" is defined as "a pattern of conduct composed of two (2) or more acts separated by at least thirty-six (36) hours, but occurring within one year." Ark. Code Ann. § 5-71-229 (d)(1)(A).
Appellant specifically argues that the State failed to show that there was a thirty-six hour period between his acts of harassment toward Ms. Moses after the no-contact order was issued, and that there was no evidence of a terroristic threat. Appellant reads the statute as requiring that the acts constituting the course of conduct all occur after the order of protection or no-contact order has been issued. Therefore, he contends that the only conduct that can be considered are those acts that occurred after he received the no-contact order on December 17; that the only harassing conduct after that time was on December 22 and 23; and that the conduct on those days was not separated by at least thirty-six hours. We disagree.
There have been no cases decided by this court or our supreme court interpreting the statute for stalking in the first degree. However, appellant's argument would require...
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