Smith v. State

• Decision Date: 20 February 2003
• Docket Number: No. CR 01-1132.,CR 01-1132.
• Parties: Dennis James SMITH v. STATE of Arkansas.
• Court: Arkansas Supreme Court

Page 433

98 S.W.3d 433

Dennis James SMITH v. STATE of Arkansas.

No. CR 01-1132.

Supreme Court of Arkansas.

February 20, 2003.

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G.B. "Bing" Colvin, III, Public Defender, Monticello, for appellant.

Mark Pryor, Att'y Gen., by: Clayton K. Hodges, Ass't Att'y Gen., for appellee.

JIM HANNAH, Justice.

A Drew County jury convicted Dennis James Smith of three counts of kidnapping, four counts of rape, two counts of attempted capital murder, one count of first-degree battery, and one count of vehicular piracy. He received the maximum sentences on all counts, all to be served consecutively except for the battery conviction, for a total of seven life sentences plus eighty years in the Arkansas Department of Correction. On appeal, Smith raises six points for reversal. We hold that there is no merit to any issue except sufficiency of the evidence on the firstdegree battery conviction. The trial court erred in denying the directed verdict motion where the evidence failed to show that Smith caused serious physical injury as required by Ark.Code Ann. § 5-13-201(a)(1) (Rep1.1997) or physical injury by means of a firearm as required by Ark. Code Ann. § 5-13-201(a)(7) (Rep1.1997). We modify the sentence on first-degree battery from twenty years imprisonment to six years imprisonment, the maximum sentence for second-degree battery.

The events leading up to Smith's convictions began on June 22, 2000, when he robbed a grocery store located in Desha County at gunpoint and took the store's owner, George Barnes, hostage. Smith drove Barnes in his pickup to a cropdusting airport near Tillar in Drew County. At the airport, they encountered Wes Lawson, and Smith forced both men to accompany him into the airport office. Judy Quandt, the wife of the crop-dusting pilot, Fred Quandt, was in the office. Smith told Judy to call her husband on the radio and tell him that if he did not come back to the airport, Smith would kill everybody in the office. Smith then ordered all three hostages to take off their clothes. He forced the two men into the bathroom but kept Judy with him. Judy testified that Smith told her to bring up something on her computer, and when she was unable to bring up what he wanted Smith hit her more than once in the head with the butt of a gun.

Upon receiving his wife's urgent call, Fred Quandt landed his plane at the airport. With the plane's engines still running, he rushed toward the office wearing a helmet and earplugs, and did not heed or hear an order to "get naked," whereupon Smith shot him in the stomach. Although seriously injured, Fred was able to escape and eventually recovered. After shooting Fred, Smith ordered Lawson to stand in the front doorway and threatened to shoot him next. Lawson then opened the front door and started running away from the building. During his escape, he sustained a gunshot wound to his arm and side that was not fatal.

Thereafter, Smith took the two remaining hostages into the bathroom, where he raped Judy, forced her to engage in oral sex with him, and forced her to engage in oral sex with Barnes. Over the course of several hours, Smith ordered the hostages to call the FBI, and he spoke by phone with various people while law enforcement officers surrounded the building. Finally, Smith instructed the hostages to put on their clothing. Then, he released Barnes and, while holding Judy for the purpose of shielding himself, Smith exited the office and was arrested.

Initially, Smith was charged with aggravated robbery, three counts of kidnapping, two counts of attempted capital murder, and two counts of rape. Based on a court-ordered mental evaluation, Smith was found unfit to proceed and committed to the State Hospital on December 4, 2000. On May 8, 2001, the State Hospital declared Smith fit to proceed, and the State amended the information to include three counts of kidnapping, two counts of attempted capital murder, four counts of rape, and one count each of first degree battery, vehicular piracy, and aggravated robbery. The count for the aggravated robbery offense that occurred in Desha County was nolle prossed as a result of an objection to venue.¹ Smith was tried by a Drew County jury and found guilty of all other counts. He was sentenced to seven terms of life imprisonment for four counts of rape and three counts of kidnapping, thirty years for each of the two counts of attempted capital murder, twenty years for first-degree battery and twenty years for vehicular piracy, with all sentences to run consecutively, except the sentence on the first-degree battery conviction.

Smith filed a timely appeal and raises six points for reversal. Three of the points involve challenges to the sufficiency of the evidence and three pertain to alleged discovery violations and procedural error. For double jeopardy reasons, we first consider Smith's sufficiency-of-the-evidence arguments. Atkinson v. State, 347 Ark. 336, 345, 64 S.W.3d 259, 265 (2002).

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Id. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State, and only evidence supporting the verdict will be considered. Id.

I. Sufficiency of the Evidence — Class Y Felony Kidnapping Conviction

Smith's first point on appeal is that with respect to the kidnapping of Barnes and Judy, he was only guilty of a class B felony because he released those hostages alive and in a safe place. We do not reach the merits of this point because it is not preserved for appellate review. In his directed-verdict motions on the kidnapping charges, Smith failed to specify how the State's case was deficient as required by Ark. R.Crim. P. 33.1.

Rule 33.1 of the Arkansas Rules of Criminal Procedure provides that

[a] motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense.

Ark. R.Crim. P. 33.1(c) (2002); see, e.g., Bowen v. State, 342 Ark. 581, 30 S.W.3d 86 (2000). As to the kidnapping charges, defense counsel merely asserted that the State did not make a prima facie case. Such an assertion does not identify a specific deficiency; rather, it is nothing more than a statement that the evidence is insufficient. Smith's motions for directed verdict, stating only that the State did not make a prima facia case, but not specifying in what respect the State's case was deficient, were not specific enough to preserve the issue for appellate review. See Spencer v. State, 348 Ark. 230, 72 S.W.3d 461 (2002).

II. Sufficiency of the Evidence — First-Degree Battery Conviction

As his second issue on appeal, Smith argues that he could only be guilty of second-degree battery and not first-degree battery. Smith caused injury to Judy by striking her with the butt of a pistol. When asked what she meant by stating Smith had hit her with the butt of the gun, Judy specifically testified that she was struck by the part of the pistol that Smith was holding in his hand. Based on this conduct, Smith was charged with first-degree battery.

The first-degree battery statute provides, in relevant part, as follows:

(a) A person commits battery in the first degree if:

1. With the purpose of causing serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon; or

* * * *

7. With the purpose of causing physical injury to another person he causes physical injury to any person by means of a firearm.

Ark.Code Ann. § 5-13-201 (Repl.1997). It is undisputed that Judy was injured when Smith struck her with the butt of the pistol, but the injury does not rise to the level of a serious physical injury as defined by Ark.Code Ann. § 5-1-102(19) (Supp. 2001). Judy testified that she required no stitches.²

The issue we are then faced with is whether striking a person with the butt of a pistol constitutes causing an injury to another person by means of a firearm under Ark.Code Ann. § 5-13-201(a)(7). This presents an issue of statutory construction.

We strictly construe criminal statutes and resolve any doubts in favor of the defendant. Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002); Sansevero v. State, 345 Ark. 307, 45 S.W.3d 840 (2001); Hagar v. State, 341 Ark. 633, 19 S.W.3d 16 (2000). There is no better settled rule in criminal jurisprudence than that criminal statutes must be strictly construed and pursued. Williams, supra. The courts cannot, and should not, by construction or intendment, create offenses under statutes which are not in express terms created by the Legislature. Williams, 347 Ark. at 742, 67 S.W.3d 548. We are without authority to declare an act to come within the criminal laws of this state by implication. Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984). It would violate the accepted canons of interpretation to declare an act to come within the criminal laws of the State merely by implication. Lewis v. State, 220 Ark. 259, 247 S.W.2d 195 (1952), (citing State v. Simmons, 117 Ark. 159, 174 S.W. 238 (1915)). Nothing is taken as intended which is not clearly expressed. Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993); Hales v. State, 299 Ark. 93, 771 S.W.2d 285 (1989).

Recognizing we must strictly construe the statute, we next consider within that restriction the basic rule of statutory construction which is to give effect, to the intent of the legislature. Short v. State, 349...