Pinney v. State

2020 Ark. App. 467

609 S.W.3d 671

Johnathan PINNEY, Appellant

v.STATE of Arkansas, Appellee

No. CR-19-875

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered October 7, 2020

Hancock Law Firm, by: Sharon Kiel, Little Rock, for appellant.

Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Senior Ass't Att'y Gen., for appellee.

LARRY D. VAUGHT, Judge

Johnathan Pinney appeals the sentencing order entered by the Van Buren County Circuit Court convicting him of first-degree terroristic threatening and sentencing him to thirty months’ imprisonment. On appeal, Pinney argues that (1) there is insufficient evidence to support his conviction, and (2) the circuit court clearly erred in finding that he knowingly and intelligently waived his constitutional right to counsel. While we hold that substantial evidence supports the terroristic-threatening conviction, we further hold that the circuit court clearly erred in finding that Pinney waived his right to counsel during the pretrial hearings held in this case. Accordingly, we reverse and remand for a new trial.

The events giving rise to this case began in December 2018 when Officer Dallas Clark of Fairfield Bay Code Enforcement was notified by personnel of the Fairfield Bay Community Club that Pinney had purchased a vacant lot in the city and had erected a tent on the property. Clark testified that the city has an ordinance prohibiting temporary structures and debris on undeveloped lots. A week later, Clark visited the lot. Pinney was not there, but Clark observed a tent, pallets, blankets, clothing, and other items on the property. Clark posted a notice on the property stating that the owner of the property was in violation of the city ordinance and had seven days to correct it.

According to Clark, Pinney came to Clark's office to discuss the alleged violation. Clark told Pinney he could not camp on the undeveloped lot and that building permits are required to build on the lot. The two planned to meet at the property later that day. Before going to Pinney's property, Clark visited with the Fairfield Bay chief of police, who informed Clark that Pinney had made threats against law enforcement who came onto his property. Clark testified that people sometimes think he is a police officer—and he is not—so he was afraid to return to Pinney's property, and he did not.

Christopher Waring testified that he is a lieutenant and assistant chief of police at the Fairfield Bay Police Department. He said that one of his duties is to issue citations for violations of city ordinances. He testified that in December 2018, he had received complaints that Pinney was camping in a tent on an undeveloped lot. Waring stated that he spoke with Clark about Pinney's code violation, and on December 30, Waring went to a road near Pinney's property and advised Pinney that living in a tent on the vacant lot was a violation of city ordinances. Waring also told Pinney that in three days Waring would return and issue Pinney a citation if the tent and other debris were not removed.

Waring said that within a day or two of that conversation, he received phone calls from "citizens" and other law enforcement officers advising that Pinney had made Facebook posts wherein he commented about his interaction with Waring and he threatened to kill law enforcement. Waring stated that he does not have a Facebook account, but he nevertheless saw the posts on Facebook and downloaded and copied them. The posts read:

any asshat comes along and causes a threat to me or my property theyre getting dowsed in gas and lit the fuck up.... im done dealing with bullshit....

...

i dont care if a douche is wearing a silver star on his chest he steps foot on my land or fucks with my shit hes dead ... im done dealing with the bullshit

...

Were taking the steps ... we have our own land.... getting info on a bobcat to build a hobbit hole and killing anyone steps foot on my land.... problems solved ...

...

Present plan: only means of entry to my land will be to drive onto my door which will be counterweighted to throw even a fucking tank off the cliff on the other side of the road ...

...

I guess supposedly they have a security guard convinced they can create ordinances banning me from being on my own land until I have permits approving a build site ... Im more apt to show them the world ive faced dig a hobbit hole like I said and they got no business what I do in my home....

Waring testified that he believed Pinney's Facebook posts were a direct threat against him (Waring) because Pinney was talking about protecting his property, and Waring had just been out to Pinney's property, and the threat was to law enforcement—"anybody with a star on their chest"—and he is a police officer. Waring stated that the posts caused him to feel as though his life would be in danger if he returned to Pinney's property.

Pinney testified that he purchased the lot in Fairfield Bay in early December. He said that he and his girlfriend had a tent, a microwave, a space heater, a hotplate, and some other basic resources on the property. Pinney also testified that he saw the notice of the violation posted on his property and that he met with Clark to discuss it. Pinney stated that he recorded the meeting with Clark and uploaded the video to Facebook. Pinney said that after he spoke with Waring, he researched the internet to find ways to defend his property and protect his girlfriend and himself. He admitted that he was preparing to use deadly physical force to defend his land if absolutely necessary. When asked by the prosecutor:

You got on Facebook. You told everyone that you were going to light anyone who came on your property with gasoline – douse them with gasoline and light them up. And that anybody that come on your property, doesn't matter if a silver star was on their chest, they were dead. You then made that statement on Facebook?

Pinney answered, "Being the last resort – option that I could find to keep myself alive, yes." Pinney testified that he did not intend to terrorize Waring. Rather, he was "simply trying to defend my land, defend me and my girlfriend, and make sure that we were going to survive this winter; we had basic resources."

At the conclusion of the trial, the jury found Pinney guilty of first-degree terroristic threatening and recommended a thirty-month prison sentence, which was imposed by the circuit court in its sentencing order. This appeal followed.

Pinney's first argument on appeal is a challenge to the sufficiency of the evidence supporting his terroristic-threatening conviction. We address this issue first since the double-jeopardy clause precludes a second trial when a conviction in a prior trial is reversed solely for lack of evidence. Brenk v. State , 311 Ark. 579, 584, 847 S.W.2d 1, 4 (1993). We must decide this issue on appeal even though the case is being reversed and remanded on other grounds. Id. , 847 S.W.2d at 4. In considering the issue, we disregard other possible trial errors. Id. at 584–85, 847 S.W.2d at 4.

On appeal of a challenge to the sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the verdict. Adams v. State , 2014 Ark. App. 308, at 2, 435 S.W.3d 520, 521. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. , 435 S.W.3d at 521–22. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. , 435 S.W.3d at 522. For circumstantial evidence to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Id. , 435 S.W.3d at 522. Any credibility determinations and the resolution of any conflicts in the evidence are for the finder of fact, not our court on appeal. Id. , 435 S.W.3d at 522.

The State bore the burden of proving the charge of terroristic threatening in the first degree. A person commits this offense if, with the purpose of terrorizing another person, the person threatens to cause death or serious physical injury or substantial property damage to another person. Ark. Code Ann. § 5-13-301(a)(1)(A) (Repl. 2013). A person acts "purposely" with respect to his or her conduct or a result of his or her conduct when it is the person's conscious object to engage in conduct of that nature or to cause the result. Ark. Code Ann. § 5-2-202(1). Our supreme court has held that 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." Smith v. State , 296 Ark. 451, 455, 757 S.W.2d 554, 556 (1988) (emphasis in original). This court has held that the terroristic-threatening statute requires that the defendant must intend to fill the victim with intense fright. Knight v. State , 25 Ark. App. 353, 356–57, 758 S.W.2d 12, 14 (1988).

Pinney argues on appeal that the evidence was insufficient to support his conviction for terroristic threatening because (1) his "general blathering" on his Facebook page did not directly communicate a threat to Waring and did not refer to or mention the Fairfield Bay Police Department, (2) Waring was not tagged on the Facebook post, and (3) Waring does not have a Facebook account. It is not necessary that the terroristic threat be communicated by the accused directly to the person threatened. Richards v. State , 266 Ark. App. 733, 585 S.W.2d 375 (1979) (upholding a conviction for terroristic threatening where the defendant told a third party that he had better get the victim away from the defendant or he would shoot the victim). Therefore, it is of no consequence that Waring did not have a Facebook page on which he directly received Pinney's threat, that Pinney did not tag Waring on the post, or that Waring first heard about the threats from third parties. Waring testified...