Smith v. State
| Decision Date | 10 October 1988 |
| Docket Number | No. CR,CR |
| Citation | 296 Ark. 451,757 S.W.2d 554 |
| Parties | Michael SMITH, Appellant, v. STATE of Arkansas, Appellee. 87-123. |
| Court | Arkansas Supreme Court |
Roger T. Jeremiah, Fort Smith, for appellant.
Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.
Michael Smith was convicted of seven counts of terroristic threatening in the first degree and seven counts of false imprisonment in the first degree. At trial he insisted on representing himself and a public defender was appointed to assist him. He was sentenced to 21 years for each count of terroristic threatening and 15 years for each count of false imprisonment; the sentence imposed was 242 years. Actually, the trial judge miscalculated and the sentence should have read 252 years. Eight arguments are made for reversal; all are meritless.
Smith was a truck driver for Don Youngblood Trucking Company in Alma, Arkansas. A dispute arose between Youngblood and Smith and Smith was fired. An argument between Smith and Youngblood, which occurred over the telephone, reveals that Smith told Youngblood he was coming to the office to get his check. Upon arrival he was told that the computer was not working and the check was not ready. An employee started preparation of Smith's check by typewriter. While waiting for his check, Smith and Youngblood began arguing again. Smith became very angry, pulled a pistol and threatened to kill everyone in the building if the police arrived or if the phones were used before he received his check. There were seven employees in the building at that time in two offices. Smith moved back and forth down a short hallway to monitor everyone in the building while communicating his threats. After he received his check, he went to his apartment in Van Buren, Arkansas, where the police later arrested him and took possession of the check.
Smith first contends that under Ark.Code Ann. § 5-1-110(a)(5) (1987) his conduct was uninterrupted; therefore, at most he may only be convicted of one count of terroristic threatening and one count of false imprisonment.
Ark.Code Ann. § 5-1-110(a)(5) provides:
(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if: (5) The conduct constitutes an offense defined as a continuing course of conduct and the defendant's course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.
Appellant argues that this section "would prohibit prosecution for multiple counts where the conduct of the defendant is a continuing course of conduct and was uninterrupted." We have considered this argument before and decided that for this subsection to be applicable, the conduct must be defined as a continuing course of conduct crime. Rhodes v. State, 293 Ark. 211, 736 S.W.2d 284 (1987). As we pointed out in Rhodes, the statute clearly states that a defendant may not be convicted of more than one offense if the conduct is defined as a continuing course of conduct.
Neither terroristic threatening nor false imprisonment is defined as a continuing offense. Examples of such offenses are nonsupport [Ark.Code Ann. § 5-26-401 (1987) ], and obstructing a highway [Ark.Code Ann. § 5-71-214 (1987) ]. See Britt v. State, 261 Ark. 488, 549 S.W.2d 84 (1977); Rhodes v. State, supra. Because neither offense is defined as a continuing course of conduct, § 5-1-110(a)(5) has no application to the facts of this case. If Smith had killed seven people, it would hardly be argued that he could only be convicted of one count of murder.
Smith makes two arguments regarding the sufficiency of the evidence. First, he argues that there was insufficient evidence to support convictions of terroristic threatening of two victims, Winona Davis and Minnea Smith; and second, he alleges there was not sufficient evidence to support a conviction for false imprisonment of Minnea Smith.
In a criminal case we will affirm if there is substantial evidence to support the verdict. Robinson v. State, 291 Ark. 212, 723 S.W.2d 818 (1982). Substantial evidence is that which rises above speculation or conjecture and compels a conclusion one way or another. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). We review the evidence in the light most favorable to the appellee, the state in this case. Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977). We consider only testimony tending to support the guilty verdict. Brown v. State, 278 Ark. 604, 648 S.W.2d 67 (1983).
Regarding Smith's first attack on the sufficiency of the evidence, he says that no evidence was presented at the trial which tended to show that two of the seven persons present in the office were actually terrorized. Smith misunderstands the proscription of the criminal code provision on terroristic threatening. Ark.Code Ann. § 5-13-301(a)(1) (1987) provides:
A person commits the offense of terroristic threatening in the first degree if, with the purpose of terrorizing another person, he threatens to cause death or serious physical injury or substantial property damage to another person.
The conduct prohibited by this section is the communication of the threat with the purpose of terrorizing another. It is not necessary that the recipient of the threat actually be terrorized. Richards v. State, 266 Ark. 733, 585 S.W.2d 375 (App.1979). In view of this premise, it is clear that testimony of some witnesses to Smith's statements that "he'd kill everyone in the building" is sufficient to sustain his conviction on all counts of terroristic threatening. A jury could easily conclude that he meant anyone or all of the seven.
In Smith's second sufficiency argument, he asserts that there was no testimony from Minnea Smith that she felt restrained without consent or legal justification, that is, falsely imprisoned. The same logic applies here that applies to the first sufficiency of evidence argument. There is no requirement that the state place every victim on the witness stand to satisfy the burden to prove by substantial evidence every element of a crime. The jury could easily conclude all were falsely imprisoned.
Smith asks that his case be reversed and dismissed because he was not taken before a judicial officer without delay. He was arraigned seven days after his arrest. Our rules provide that a detained person shall be taken before a judicial officer without unnecessary delay. A.R.Cr.P. Rule 8.1. Failure to comply does not dictate a dismissal of the charges. Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978); Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). In Gerstein, the United States Supreme Court said:
[W]e adhere to the Court's prior holding that a judicial hearing is not prerequisite to prosecution by information ... nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction....
The remedy for violation of Rule 8.1 is suppression of the evidence obtained as set forth in Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987). The appellant here concedes that the Duncan test is not satisfied so we need not speak on the matter.
Appellant also seeks reversal based on the trial court's ruling that statements taken after his arrest were admissible. The trial court considered the evidence at a pretrial hearing. The appellant concedes that on this issue it was a "swearing match." We have repeatedly held that any conflict in witnesses' testimony is for the trial court to resolve. Harris v. State, 294 Ark. 484, 743 S.W.2d 822 (1988); Smith v. State, 292 Ark. 162, 729 S.W.2d 5 (1987). We find no abuse of discretion in the court's ruling.
Appellant makes several other general arguments which we find meritless. He contends that his convictions are in violation of the double jeopardy clause of the United States and Arkansas Constitutions. No objection was made on this basis at the trial. So we will not consider it on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). That is true even if...
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