Ray v. State

678 S.W.3d 882

Jason RAY, Appellant

v.STATE of Arkansas, Appellee

No. CR-22-537

Court of Appeals of Arkansas, DIVISIONS II & III.

Opinion Delivered November 8, 2023

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION [NO. 60CR-20-1681], HONORABLE LEON JOHNSON, JUDGE

James Law Firm, by: William O. "Bill" James, Jr., Little Rock, and Drew Curtis, for appellant.

Tim Griffin, Att’y Gen., by: Brooke Jackson Gasaway, Ass’t Att’y Gen., for appellee.

WENDY SCHOLTENS WOOD, Judge

₁I. Introduction

Jason Ray appeals from the Pulaski County Circuit Court’s sentencing order convicting him of first-degree domestic battering, first-degree terroristic threatening, and aggravated assault on a family or household member. Ray was sentenced to concurrent terms of forty years’ imprisonment for first-degree domestic battering as a habitual offender, fifteen years’ imprisonment for first-degree terroristic threatening, and fifteen years’ imprisonment for aggravated assault on a family or household member. Ray asserts five points for reversal: (1) the evidence is insufficient to support his conviction for first-degree domestic battering; (2) the circuit court erred in applying the habitual-offender-enhancement statute to his first-degree domestic-batting conviction; (3) the circuit court erred in denying his request to ₂trifurcate the proceedings; (4) the circuit court erred in denying his motion to dismiss for lack of a speedy trial; and (5) the circuit court erred in permitting the State to introduce photographs of the victim. We affirm as modified.

II. Facts

On the night of July 30, 2019, Ray attacked his wife, Victoria Hester, in their home. He was arrested for the incident on March 9, 2020, and charges were filed on May 22. At trial, Hester testified that on the night of the attack, Ray woke her after he had returned home and accused her of cheating on him. She said an argument ensued, and Ray grabbed her by the hair, pushed her to the ground, hit her in the head, strangled her with a phone-charging cable, threatened to kill her, and plunged her face into the dog’s water and food bowls. Hester testified that she suffered long-term injuries from the attack, including permanent scarring to her neck, damage to a vocal cord, and a brain injury. The State introduced photographs from the scene of the attack showing some of Hester’s injuries.

North Little Rock police detective Lonell Tims testified that after he interviewed Hester and reviewed photographs taken of her, he sought an arrest warrant for Ray. Ray presented the testimony of his fiancée, Rachell Gill, who testified it was her opinion that Hester was untruthful.

At the conclusion of the trial, the jury convicted and sentenced Ray. The sentencing order was entered on July 13, 2022, and this appeal followed.

III. Sufficiency of the Evidence

[1] ₃Ray argues that the circuit court erred in denying his motions for directed verdict challenging the sufficiency of the evidence supporting his first-degree domestic-battering conviction. Specifically, he argues that the State failed to present substantial evidence that the prior domestic-battering conduct underlying his previous convictions occurred within the ten years preceding July 30, 2019.

[2–5] On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Caple v. State, 2019 Ark. App. 41, at 5, 569 S.W.3d 353, 357. When reviewing the sufficiency of the evidence, we do not weigh the evidence; we determine whether the evidence in support of the verdict is substantial. Galvin v. State, 323 Ark. 125, 127, 912 S.W.2d 932, 933 (1996). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id., 912 S.W.2d at 933. Evidence is not substantial if it leaves the fact-finder only to speculation and conjecture in choosing between two equally reasonable conclusions and merely gives rise to a suspicion. Surridge v. State, 279 Ark. 183, 185, 650 S.W.2d 561, 562 (1983). A directed verdict should be granted where there is no evidence from which the jury could have found, without resorting to surmise or conjecture, the guilt of the defendant. Winston v. State, 368 Ark. 105, 110, 243 S.W.3d 304, 308 (2006).

A person commits domestic battering in the first degree if the person (1) commits any act of second- or third-degree domestic battering as defined in Arkansas Code Annotated sections 5-26-304 or 5-26-305, and (2) the person has on two previous occasions been convicted of any act of battery or aggravated assault for conduct that occurred within the ten ₄years preceding the commission of the current offense against a family or household member. Ark. Code Ann. § 5-26-303(a)(5)(A), (B) (Supp. 2021). Therefore, the jury had to determine whether Ray had committed either second- or third-degree domestic battering and whether he had twice previously been convicted of third-degree domestic battering for conduct occurring within the ten years preceding the July 30, 2019 incident.

On the morning of Ray’s trial, the circuit court heard several pretrial motions, including a motion to preclude a habitual-offender-sentencing enhancement for first-degree domestic battering and a motion to trifurcate the case—to try the case in three stages—so that the jury would not learn of Ray’s two prior domestic-battering convictions during the guilt phase. Ray asserted that the prior convictions were unduly prejudicial and that the jury should first determine guilt of the current offense of domestic battering in the third degree. He asserted that the prior convictions then should be reviewed by the court and proffered to the jury "just as we do any findings of priors for the habitual allegation."

The court deferred ruling on the issue of the sentencing enhancement, and it denied Ray’s motion for trifurcation, ruling that the prior domestic-battering convictions constituted an element of the State’s case for first-degree domestic battering that had to be proved in the guilt phase of trial. To address Ray’s concerns about undue prejudice from the introduction of the prior domestic-battering convictions, the State said that it would introduce the sentencing orders for Ray’s prior domestic-battering convictions into evidence but would not publish the orders to the jury. The State indicated that it would read to the jury from the orders only that information necessary to prove the requisite element of first-degree₅ domestic battering. The court approved this process and, along with the State, confirmed for defense counsel that the sentencing orders containing the prior convictions for third-degree domestic battering would not be published to the jury.¹

In a bench conference before the first witness was sworn, the State moved to introduce exhibits 1 and 2: (1) a February 12, 2010 Pulaski County third-degree domestic-battering conviction for Ray’s conduct on September 2, 2009; and (2) a November 16, 2012 third-degree domestic-battering conviction for Ray’s conduct on February 28, 2012. Defense counsel renewed his motion to preclude admission of the prior convictions "during the innocence/guilt portion of the trial" and to try the case in three stages, but the circuit court denied the motion and received exhibits 1 and 2. The State then told the jury the following:

Ok - on September 9th — I mean, on September 2nd of 2009, the defendant was convicted of domestic battery in the third degree, Class A Misdemeanor in Pulaski County….

On February 28 of 2012 the defendant was convicted of domestic battery in the third degree, Class A misdemeanor in Pulaski County.

(Emphasis added.) Thus, instead of presenting the jury with the dates on which Ray’s prior conduct "occurred," as required by section 5-26-303(a)(5)(B), the State erroneously informed the jury of the dates of Ray’s "convictions."

₆At the close of the State’s case-in-chief, Ray moved fox· a directed verdict on each charge. He asserted, among other things, that the State failed to prove to the jury the dates on which Ray’s prior domestic-battering offenses had occurred:

They must show … Ray has been convicted on two previous occasions of battery against a family or household member in Arkansas and these acts of battery occurred within 10 years of July 30th of 2019. They haven’t. All we have are convictions from 2009 and 2012. We do not know when the alleged acts of battery occurred with one of them being in 2009 and this offense July 30th of 2019, how could we even say or speculate the actual acts of domestic battery occurred within 10 years of July 30, 2019? … They have to show the acts. What were the acts, not the convictions.

In response, the State asserted that exhibits 1 and 2 had been introduced into evidence and both reflected the dates on which the prior offenses occurred: September 2, 2009, and February 28, 2012. Defense counsel disagreed, and the following exchange ensued:

State: … I wrote down exactly what I was going to say to not get sideways on this, and I wrote September 2nd, the date of occurrence, 2009, the defendant was convicted of domestic battery. I mean I read the dates of occurrence into the record.

The Court: And they were admitted.

Defense: I personally believe she said the word, conviction, but the record will speak for itself because I was listening as well.

The Court: All right, it will be denied. The motion for directed verdict will be denied.

At the close of all the evidence, Ray renewed his motion for directed verdict, and the circuit court denied it.

₇In the State’s case, there was no evidence presented to the jury of when Ray’s prior conduct occurred. Rather, the jury heard only the erroneous characterization of when Ray’s "convictions" occurred. The State concedes on appeal that when reading the sentencing orders to the jury, the prosecuting attorney "misread" them and "misspoke." Further-more, the jury never received exhibits 1 and 2 pursuant to the circuit court’s pretrial ruling. The...