Stewart v. State

• Decision Date: 19 May 2005
• Docket Number: No. CR 05-18.,CR 05-18.
• Citation: 208 S.W.3d 768
• Parties: Natasha Nicole STEWART, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

208 S.W.3d 768

Natasha Nicole STEWART, Appellant, v. STATE of Arkansas, Appellee.

No. CR 05-18.

Supreme Court of Arkansas.

May 19, 2005.

William R. Simpson, Jr., Public Defender, and Sandra S. Cordi, Deputy Public Defender, by: Clint Miller, Deputy Public Defender, Little Rock, for appellant.

Mike Beebe, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., Little Rock, for appellee.

ROBERT L. BROWN, Justice.

Appellant Natasha Nicole Stewart appeals from the circuit court's judgment and disposition order for her failure to appear for plea and arraignment regarding felony charges. She was sentenced to three years' probation and fined $300. The court of appeals reversed the judgment and dismissed the case. See Stewart v. State, 89 Ark.App. 86, 200 S.W.3d 465 (2004). This court granted the State's petition for review. On appeal, Stewart argues that the circuit court erred in denying her motion to dismiss, because the State failed to present substantial evidence that Stewart had actual notice to appear at her plea-and-arraignment hearing in circuit court.¹ We reverse the judgment and disposition order and dismiss the case.

Stewart was arrested in February 2003 for second-degree domestic battering and for obstructing government operations. On February 19, 2003, she was released on bond after her father, Michael Stewart, paid the bond costs. Upon release, Stewart gave her bail bondsman, Will Oliver, her address as 2719 Welch Street in Little Rock. Her father gave Oliver his address as 1716 South Pulaski, also in Little Rock.

On March 24, 2003, the circuit court case coordinator, Summer Studdard, testified that she mailed Stewart a plea-and-arraignment notice to the Welch Street address. The case coordinator never received the letter back for failure of delivery to Stewart or any notice that Stewart had not received the letter. On March 31, 2003, Stewart failed to appear at her plea-and-arraignment hearing for the battering and obstruction of government operations charges and later claimed that she knew nothing about it. Her bail bondsman arranged for Stewart to have another hearing on May 5, 2003. She appeared on that date and pled not guilty.

On July 7, 2003, the State filed a felony information against Stewart for failure to appear at the March 31, 2003 hearing. On September 2, 2003, the circuit court held a bench trial. Stewart was acquitted of domestic battering but was found guilty of obstructing government operations and failure to appear. She was sentenced accordingly, and a judgment and disposition order was entered.

For her sole point on appeal, Stewart claims that the circuit court erred in denying her motion for directed verdict, which in reality was a motion to dismiss because this was a bench trial. See Ark. R.Crim. P. 33.1(b) (2004). The reason for this error, according to Stewart, was that the State failed to produce substantial evidence that she received actual notice of the time and place to appear in court or that she received written notice of the time and place to appear. Specifically, Stewart claims that the State failed to prove by substantial evidence that Stewart received notice of the hearing after Stewart presented her own evidence that she had a reasonable excuse for failing to appear. She also contends that the circuit court only could have found her guilty by relying on an inferred fact premised on an inferred fact, which impermissibly leads to speculation and conjecture. Finally, she points out that the State failed to offer evidence of how long the United States Post Office takes to deliver a letter mailed in Little Rock to another address in Little Rock and that the State merely had the circuit court infer the time frame for such mailing and delivery.

When we grant a petition for review, this court reviews the case as if the appeal had originally been filed in this court. See, e.g., Thompson v. State, 342 Ark. 365, 28 S.W.3d 290 (2000).

A motion to dismiss at a bench trial and a motion for a directed verdict at a jury trial are challenges to the sufficiency of the evidence. See Ark. R.Crim. P. 33.1 (2004). 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. See Gamble v. State, 351 Ark. 541, 95 S.W.3d 755 (2003). Only evidence supporting the verdict will be considered. Id.² The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Whether evidence is direct or circumstantial, it must meet the requirements of substantiality. Id. Substantial evidence is evidence forceful enough to compel the fact-finder to make a conclusion one way or the other without resorting to speculation or conjecture. Id. Direct evidence is evidence that proves a fact without resorting to inference. Id. 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. Id.

In the case at hand, Stewart was convicted of violating Arkansas Code Annotated § 5-54-120 (Repl.1997), for failing to appear at her plea-and-arraignment hearing for the charges of second-degree domestic battering, which was a Class C felony, and obstruction of government operations. Since the failure to appear was in connection with a felony offense, the failure to appear was also a felony. Section 5-54-120 reads in part:

(a) A person commits the offense of failure to appear if he fails to appear without reasonable excuse subsequent to having been:

(1) Cited or summonsed as an accused; or

(2) Lawfully set at liberty upon condition that he appear at a specified time, place, and court.

(b) Failure to appear is a Class C felony if the required appearance was to answer a charge of felony or for disposition of any such charge either before or after a determination of guilt of the charge.

Ark.Code Ann. § 5-54-120(a), (b) (Repl. 1997).

At the bench trial, the State presented the testimony of the case coordinator that notice had been mailed. After the State rested its case, Stewart's counsel moved for a directed verdict, which we will treat as a motion to dismiss, as already discussed. Defense counsel's motion specifically was as follows:

Your Honor, we move for a directed verdict. The State did not prove that under 5-54-120 that she failed to appear. When someone slightly so at liberty, that — upon condition that he failed to appear at a specified time and place in Court, I don't think that they showed that she received sufficient notice of the Court date.

The circuit court denied the motion. The defense then called Stewart, her father, and the bail bondsman as witnesses. There was testimony from Stewart that she received mail at the Welch Street address and paid bills received at that address, but she never received any notice from the case coordinator. After the defense rested its case, Stewart's counsel renewed her motion. The circuit court denied the renewed motion and convicted Stewart of failure to appear.

This court must first determine whether Stewart's rationale for the circuit court's error, which was argued on appeal, was preserved in circuit court. Reviewing the language of the motion to dismiss, Stewart's counsel argued only that the State failed to prove that Stewart violated § 5-54-120(a)(2), because Stewart did not receive "sufficient notice of the Court date," when she was lawfully set at liberty. Counsel did not argue that the State failed to prove that Stewart was not properly cited or summoned as an accused, which would be a violation of § 5-54-120(a)(1). Thus, we will only consider whether the State failed to prove that Stewart violated § 5-54-120(a)(2). See Ark. R.Crim. P. 33.1(c) (2004) (motion for directed verdict or motion to dismiss must specify why the evidence is deficient); Thompson v. State, supra (quoting In Re Rule 33.1, 337 Ark. Appx. 621 (1999)) (defendant in both jury and bench trials must notify the circuit court of the particular reasons why the State's evidence is insufficient in order to preserve that issue for appeal).

Turning to the merits, to be convicted of failure to appear under § 5-54-120(a)(2), the State must prove by substantial evidence that Stewart (1) failed to appear, (2) without a reasonable excuse, (3) after having been lawfully set at liberty, and (4) upon the condition that she appear at a specified time, place, and court. The fact that Stewart failed to appear after being set at liberty is not disputed. There is also no question that she was released after posting bond, which presupposes that she would be available for a later court date. What is disputed is whether she had a reasonable excuse for not appearing for plea and arraignment on March 31, 2003, due to lack of notice.

A judge is ordinarily authorized to release a person on bond contingent on the future appearance of that person in court on a specific date. In the instant case, Stewart had been released on bond, but the bond is not in the record, and we have no proof that appearance in court on a date certain was part of the release decision. Nor does the record contain the judge's first appearance order or any reference to the fact that the judge, in open court, set a future trial date. We do have the...