Wynn v. State

2021 Ark. App. 132

CARL WYNN APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-20-320

ARKANSAS COURT OF APPEALS DIVISION I

March 17, 2021

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION

[NO. 60CR-18-2838]

HONORABLE HERBERT WRIGHT, JUDGE

AFFIRMED

LARRY D. VAUGHT, Judge

Carl Wynn appeals the sentencing order entered by the Pulaski County Circuit Court convicting him of first-degree terroristic threatening. On appeal, Wynn argues that (1) insufficient evidence supports his conviction; (2) the circuit court abused its discretion in denying his motions for continuance to obtain a necessary witness for trial; and (3) the circuit court erred in allowing the State to amend the felony information at trial. We affirm.

On August 1, 2018, Wynn was charged as a habitual offender with first-degree terroristic threatening of Joshua LaFever.¹ A bench trial was held on December 18, 2019, at which LaFever testified that in May 2017, he lived with his wife and two sons on Asbury Road in Little Rock. He said that he was preparing to sell his house and had loaded trash into his father's truck, which was parked at his house. On May 25, LaFever left work and went home to drive the trash in the truck to the dump. When he arrived, roofers were working on his house. LaFever exited his vehicle and got into his father's truck, which is when Wynn, who lived across the street, came over to LaFever and angrily screamed, "Why do you have those wetbacks on your roof?" LaFever testified that he closed the truck door, but Wynn yanked it back open, aggressively poked LaFever in the chest, and told him he was going to federal prison for hiring the people on his roof. LaFever testified that Wynn threatened to kill his wife and his children, whom he called "nigglets."

LaFever testified that when he called 911, Wynn ran into his house. However, he came back out with his car keys and continued to yell at LaFever, calling him and his children racial slurs and telling LaFever he was going to need "twenty-four-hour-a-day protection." LaFever recorded part of the encounter on his cell phone, which was played at trial.

LaFever stated that the police arrived pretty quickly after he called 911, but Wynn had already left. LaFever said that he and his wife went to the police department the next morning and spoke with Little Rock Police detective Rick Harmon to whom they gave a statement. LaFever testified at trial that he did not remember Wynn's making a specific threat to kill him, but he believed that when Wynn told him that he needed twenty-four-hour protection, the statement was a direct threat against him and his family.

Danielle Paul, LaFever's sister-in-law, was a college student and was living with the LaFever family in the summer of 2017. Paul testified that she was at the LaFever home to help take the trash to the dump when Wynn, who was "very upset," came out of his house yelling racial slurs at LaFever "about Mexicans working on the roof." She said that LaFever tried to get in his truck, but Wynn pulled the door open and continued to yell at LaFever. She stated that LaFever told her to return to her car. Paul said that she heard Wynn make threats to LaFever, his wife, and their children. She heard Wynn say he was "going to kill [LaFever's] fat wife and his two 'nigglet' children." She testified that Wynn went back to his house when LaFever threatened to call the police. However, he came back out, yelled at LaFever, and then left in his vehicle. She stated that she later gave a statement to Harmon over the phone.

Rose Lott lived on Asbury Road in May 2017. She testified at trial that she was pulling her trash to the street on May 25 when she observed Wynn run over to LaFever's truck and hit it with his hand. She testified that she could hear arguing and yelling between the two men, but she could not hear what they were saying.

Harmon testified that he was assigned to investigate the incident that occurred on May 25. He stated that he reviewed the incident report prepared by another officer and took an in-person statement from LaFever and a telephone statement from Paul. According to Harmon, LaFever and Paul both testified that Wynn threatened LaFever and his family. Harmon testified that because LaFever's and Paul's statements were consistent with each other and with the incident report, he wrote an affidavit for the arrest of Wynn for first-degree terroristic threatening. Harmon testified that Wynn was not arrested until over a year after the incident.

Following the testimony of Harmon, the State rested and moved to amend the felony information to include LaFever's wife and children as victims. Over Wynn's objection, the circuit court granted the motion. Thereafter, Wynn moved to dismiss the case; however, the motion was denied by the circuit court. The defense rested without calling any witnesses. After closing arguments, the circuit court found Wynn guilty of first-degree terroristic threatening and further found that he is a habitual offender with more than four prior felony convictions. Following a sentencing hearing held on January 13, 2020, the circuit court sentenced Wynn to twelve years' imprisonment. This appeal followed.

Wynn's first point on appeal is a challenge to the sufficiency of the evidence supporting his first-degree terroristic-threatening conviction. 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. Pinney v. State, 2020 Ark. App. 467, at 5, 609 S.W.3d 671, 676. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id., 609 S.W.3d at 676. 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., 609 S.W.3d at 676. For circumstantial evidence to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Id., 609 S.W.3d at 676.

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) (Supp. 2020). 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) (Repl. 2013).

Wynn contends on appeal that there is no substantial evidence that he threatened LaFever or his family with serious physical injury or death. He argues that the video fails to include any language by Wynn that constituted a threat of serious physical harm or death against LaFever or his family and that, at most, Wynn "lobbed several racial epithets toward LaFever," which do not constitute a threat to inflict death or serious injury. Wynn also argues that there was no substantial evidence introduced that shows Wynn acted with the purpose to terrorize LaFever or his family. Finally, Wynn argues that the statements and testimony of LaFever and Paul are fraught with inconsistencies and bias such that they cannot constitute substantial evidence supporting the first-degree terroristic-threatening conviction.

Much of Wynn's sufficiency argument is not preserved for appeal. At the close of the State's evidence, Wynn moved to dismiss, arguing:

Based on the testimony that we have here today, I cannot say that the State has met its burden in proving beyond a reasonable doubt that Carl Wynn engaged in the act of [t]erroristic [t]hreatening against Joshua LaFever . . . and . . . his family.

Wynn then argued that there were inconsistencies between LaFever's and Paul's statements and their trial testimony and that LaFever and Paul lacked credibility for various reasons. Wynn's counsel concluded: "I just believe for the overall credibility of the witnesses, the State has not met their burden of proof of this matter, and we ask that it be dismissed."

Rule 33.1(b) of the Arkansas Rules of Criminal Procedure requires that a criminal defendant, in a nonjury trial, make a specific motion for dismissal at the close of all the evidence and that it shall state the specific grounds therefor. Ark. R. Crim. P. 33.1(b) (2019). Rule 33.1(c) provides:

The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense.

Ark. R. Crim. P. 33.1(c).

Wynn's motion to dismiss at trial did not include the arguments that the State failed to prove that his purpose was to terrorize the LaFevers or that the State failed to prove that he threatened LaFever or his family with serious physical injury or death. Because Wynn raises these arguments for the first time on appeal, we hold they are not preserved. Warren v. State, 2019 Ark. App. 33, at 4, 567 S.W.3d 105, 108 (holding that an argument that is not specified in a motion to dismiss is not preserved for appeal).

The sufficiency challenge that is preserved for appeal turns solely on the credibility of the witnesses. With regard to the credibility of witnesses and inconsistencies in witness testimony, it is the province of the circuit court, not the appellate court, to evaluate witness credibility and to resolve any conflicts in the evidence. Washington v....