Turner v. State

• Decision Date: 10 January 2018
• Docket Number: No. CR–17–166,CR–17–166
• Citation: 538 S.W.3d 227
• Parties: Richard Leroy TURNER, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Court of Appeals

538 S.W.3d 227

Richard Leroy TURNER, Appellant

v.STATE of Arkansas, Appellee

No. CR–17–166

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered January 10, 2018

James Law Firm, by: Michael Kiel Kaiser and William O. "Bill" James, Jr., Little Rock, for appellant.

Leslie Rutledge, Att'y Gen., by: Brooke Jackson Gasaway, Ass't Att'y Gen., for appellee.

N. MARK KLAPPENBACH, Judge

Appellant Richard Leroy Turner was found guilty by a jury of kidnapping following a trial in Washington County Circuit Court. This charge related to allegations that Turner attacked April Robertson as she ran on a trail around Lake Fayetteville, dragging her off the trail and into the woods. The jury sentenced Turner, as a habitual offender, to thirty years in prison. Turner appeals and argues that the trial court committed reversible error in the following ways: (1) by denying his motion for directed verdict; (2) by denying his motions for a continuance and mistrial and by improperly restricting his cross examination of a law enforcement witness, all related to alleged discovery violations by the State; (3) by permitting improper Rule 404(b) evidence; and (4) by refusing to appoint a special prosecutor. We affirm.

The evidence presented at trial is as follows. On a Sunday afternoon in September 2015, April Robertson began a run along the paved trail at the lake. She was wearing a headband and had earbuds in her ears to listen to music. Robertson passed by a man, later identified as Turner, whom she described as being a white male of average height and weight, with short dark hair and a scruffy face, wearing a dark shirt, cargo shorts, a ball cap, sunglasses, a backpack, and a ring that had the word "dad" on it. He was not wearing athletic clothing. She said that Turner looked at her, smiled, and waved. Shortly thereafter, Turner ran up behind her, put his arm over her shoulder, grabbed her around the neck, tackled her to the ground, got on top of her, and began to beat her in the face. Robertson testified that Turner pinned her to the ground by straddling her with one leg on either side of her. She lost count of how many times she was punched, but she knew that it was at least seven times and that he used both fists. When she screamed, Turner choked her to get her to stop, wrapping both hands around her neck and making it difficult for her to breathe. She said that Turner alternated between punching her, choking her, and putting his hand over her mouth to stop her from screaming.

Then, Turner grabbed her by the shoulders and dragged her into the woods through brush and briars, so far that she could no longer see the paved running trail. She recalled that he threatened her if she screamed again. Robertson was eventually able to stand up a few feet away from Turner, and she asked why he had attacked her. She said that Turner told her that someone had taken his daughter and that there were "blacks in the woods" with guns who would have picked her off the trail if he had not. Turner also told her that if she called emergency services, someone would kill his daughter. Then, he asked to use her cell phone. Instead, Robertson called her boyfriend to tell him what had happened; Turner was pacing back and forth. She asked Turner where the paved trail was, he pointed it out to her, and he started walking in that direction. When they reached the trail, Turner went left and she went right. Robertson called 911 and described Turner as a white male in his midthirties of average height and weight, and she described what he was wearing.

When police officer Mike Hammons arrived on scene, Robertson was crying, shaking, and visibly upset with scrapes on her arms and legs and marks on her face. Photographs of her injuries were entered into evidence. Another officer, Shawn Allen, searched the area and found Robertson's headband and earbuds along with a pair of sunglasses. Subsequent DNA testing provided a link between the sunglasses and Turner. When he was arrested in November 2015, Turner was wearing a gold ring that had the word "dad" on it; he claimed to have lost another similar ring that was silver.

Seth Creed was biking on the same trail on the same afternoon that Robertson was attacked. Creed testified that he saw Turner twice on the trail that day about thirty minutes apart. Creed's description of what Turner was wearing was very similar to the description given by Robertson. Creed had seen a news report about the attack that night on television, and after hearing the victim's description, he called the Fayetteville police. At trial, Creed identified Turner as the man he had seen that day, stating that he had come within five feet of Turner and had gotten a good look at him.

Jamie Rogers testified that she was running on the Lake Fayetteville trails on Saturday, the day before Robertson was attacked. Rogers testified that she heard a man run up behind her, and when she turned around, they were face to face, he apologized, and he ran in the opposite direction. Rogers said that the man had dark hair, scruff on his face because he was not clean shaven, light eyes, and he was wearing pants that were "regular clothes," a hat, and boots. She testified that she thought the man was going to attack her and that she was very scared. At trial, Rogers was "100% certain" that Turner was that man.

Turner moved for directed verdict at the appropriate times during trial, and those motions were denied. In the motions, Turner argued that there was insufficient evidence to identify him as the perpetrator, to show that he interfered substantially with Robertson's liberty, or to prove that he had the purpose to inflict physical injury or to terrorize her. Turner was convicted, and this appeal followed.

In his first argument on appeal, Turner challenges the denial of his motions for directed verdict. He reasserts the same bases he raised at trial. We find none of his arguments persuasive, which we will now explain.

When we review the denial of a directed-verdict motion challenging the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict. Conway v. State , 2016 Ark. 7, 479 S.W.3d 1. That means we consider only the evidence that supports the verdict and determine whether the verdict is supported by substantial evidence. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Holly v. State , 2017 Ark. 201, 520 S.W.3d 677. We do not weigh the evidence presented at trial or assess the credibility of the witnesses, as those are matters for the fact-finder. Reynolds v. State , 2016 Ark. 214, 492 S.W.3d 491.

Turner was charged with kidnapping pursuant to Arkansas Code Annotated section 5–11–102(a)(4) and (a)(6) (Repl. 2013). The amended felony information alleged that Turner, without Robertson's consent, restrained her and interfered substantially with her liberty with the purpose of inflicting physical injury on her or terrorizing her. "Restraint without consent" includes restraint by physical force, threat, or deception. Ark. Code Ann. § 5–11–101(3)(A). In defining kidnapping, the Criminal Code speaks in terms of restraint rather than removal. Snider v. State , 2010 Ark. App. 694, 378 S.W.3d 264. Hence, the statute reaches a greater variety of conduct because restraint can be accomplished without removal. McFarland v. State , 337 Ark. 386, 989 S.W.2d 899 (1999). A person acts purposely with respect to his conduct or a result of his conduct when it is his conscious object to engage in conduct of that nature or to cause that result. Ark. Code Ann. § 5–2–202(1).

First, Turner challenges the evidence that he was the person who attacked Robertson that day. Turner argues that Robertson's identification was unreliable and that she was unduly influenced by subsequent media coverage. We disagree. Robertson positively identified Turner as the man who attacked her, Creed testified with certainty that he saw Turner on that same date at the lake on the trail, and Rogers testified with certainty that she saw Turner the day before on the same park trails. Turner wore a "dad" ring, which Robertson had told police her attacker wore. Turner's DNA was found on the sunglasses located near Robertson's headband and earbuds. When a witness makes a positive identification of a suspect, any challenge to the reliability of the identification becomes a matter of credibility for the fact-finder to determine. Bowman v. State , 83 Ark. App. 223, 125 S.W.3d 833 (2003). Unequivocal testimony identifying the accused as the culprit is sufficient to sustain a conviction. Haynes v. State , 314 Ark. 354, 862 S.W.2d 275 (1993) ; Tisdale v. State , 311 Ark. 220, 843 S.W.2d 803 (1992). The jury is free to believe all or part of a witness's testimony, and we do not weigh the credibility of witnesses on appeal, since that is a job for the fact-finder and not the appellate court. Williams v. State , 2017 Ark. App. 287, 524 S.W.3d 5. Turner's identification argument holds no merit.

Second, Turner contends that there was insufficient evidence that he substantially interfered with Robertson's liberty. He points out that this encounter lasted "mere minutes," that Robertson was allowed to leave after she had been taken into the woods, and that he did not have a weapon. We disagree that there was a lack of substantial evidence of the type of restraint required by statute.

Substantial interference with another person's liberty does not require that the interference be for a substantial period of time. Davis v. State , 368 Ark. 351, 246 S.W.3d 433 (2007). Restraint alone will suffice; removal is not required. Singleton–Harris v. State , 2014 Ark. App. 436, 439 S.W.3d 720. The State need only prove that the accused restrained the victim so as to interfere with the victim's liberty, without consent, for a specific purpose outlined in the statute. Id. It is the quality and nature of the...