Rodriguez v. State , 449 S.W.3d 306 ( 2014 )

Cite as 2014 Ark. App. 660ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-14-160
JOEL RAYMOND RODRIGUEZ Opinion Delivered November 19, 2014
APPELLANT APPEAL FROM THE SALINE
COUNTY CIRCUIT COURT
V. [NO. 63 CR-12-471]
STATE OF ARKANSAS HONORABLE GARY ARNOLD,
JUDGE
APPELLEE
AFFIRMED
DAVID M. GLOVER, Judge
Joel Raymond Rodriguez was tried by a jury and found guilty of the offenses of
aggravated assault, first-degree terroristic threatening, and second-degree domestic battering.
He was sentenced to 600 months in the Arkansas Department of Correction. Rodriguez
raises five points of appeal: 1) he was prejudiced when the trial court abused its discretion by
allowing a witness to read a text message into evidence to refresh her recollection; 2) the trial
court erred when it allowed the introduction of an inflammatory text message into evidence;
3) the trial court erred in denying his motion for mistrial based on a juror’s knowledge that
the appellant was in custody; 4) the trial court erred in denying his motion to dismiss charges;
and 5) the trial court erred in denying his motion for directed verdict and new trial. We
affirm.
Cite as 2014 Ark. App. 660Background
The charges against Rodriguez arose from an encounter between him and his
girlfriend, Hannah Logan, on the night of August 8–9, 2012. Hannah testified that on the
evening of August 8, 2012, she picked up Rodriguez from his parents’ house and that they
went several places. She said that after Rodriguez left his friend’s house (she stayed in the
car), his demeanor changed dramatically; that he was usually happy and kind hearted, but that
he became very angry. She testified that she drove to her mother’s house because her car was
overheating, and she needed to put water in it. She said that she went into the house alone,
but that Rodriguez subsequently burst into the house and cursed her; that they shoved each
other; that he grabbed her throat; that he was “enraged”; and that she thought she was going
to black out. She said that she threw a glass of water she had in her hand and hit him with
the cast on her arm; that he was bleeding from his “mouth area”; and that he then pushed her
face-down on the kitchen floor and collapsed on top of her. She testified that she felt a hard
blow on her head; that she thought he hit her with a gun; that he then put the gun in her
mouth; and that she did not see him pull the trigger, but she heard “clanging/clicking” on her
teeth. She stated that they wrestled around on the floor; that he released her for a second; that
she started cursing him, and he held her in a head-lock; that they made their way to her
daughter’s room; that he said, “Bitch, you don’t think I’ll kill you”; and that she thought it
was very possible he was going to kill her.
She said the gun was a semi-automatic pistol. She thought the gun was loaded, but
Rodriguez didn’t make any actions that led her to believe that it was. She said that they had
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Cite as 2014 Ark. App. 660both been drinking a little bit, and they had both taken a Xanax, but that Rodriguez did not
appear to be intoxicated and she was not either. She said that this series of events in her
mother’s house, who was out of town, lasted about fifteen to twenty minutes and took place
a little before midnight. Rodriguez left in her car (she gave him her keys); she cleaned herself
and the house up; she left and went to her brother’s house and then her mom’s friend’s house;
and she called the police about two hours after the incident. She also called Rodriguez
because she wanted her car back.
Hannah further testified that she and Rodriguez “texted” each other, prompting a long
bench conference concerning Hannah being able to “refresh her memory” concerning a text
she testified she received from Rodriguez and other texts that she had sent to him but that had
been erased. The trial court allowed her to read the text message to the jury. She also stated
that it was the last communication she had with Rodriguez and that she forwarded it to Tony
Baugh, a detective who interviewed her the next day.
Hannah explained that Detective Baugh accompanied her in returning to her mother’s
house (who was still out of town); that she noticed a beer can in the yard, which was unusual;
and that normally the front door is left unlocked and the back door locked, but it was just the
opposite when they returned to the house. She got her car back. It was found a couple of
miles from where Rodriguez’s cousins and nieces lived. She identified several photo exhibits
showing her injuries.
On cross-examination, Hannah repeated that, normally, Rodriguez was a happy, kind-
hearted person; that she had known him for two years; and that their relationship was not
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Cite as 2014 Ark. App. 660usually mentally or physically abusive. She stated that she gave Rodriguez the keys to her car
and told him to leave; that she had deleted the texts other than the one she read to the jury;
and that some of those deleted texts were from her and contained “heinous” language of her
own. She corrected some of her statements to the police; stated that she did not want to be
there testifying; and acknowledged that she was the one who brought the Xanax on the night
of the incident.
Discussion
We first address a portion of Rodriguez’s final point of appeal because it challenges the
sufficiency of the evidence supporting his convictions for second-degree domestic battering,
aggravated assault, and first-degree terroristic threatening.
An appellant’s right to freedom from double jeopardy requires us to review the
sufficiency of the evidence before we review any asserted trial errors. Foshee v. State, 2014
Ark. App. 315. The test for determining the sufficiency of the evidence is whether the
verdict is supported by substantial evidence, direct or circumstantial. Id. In reviewing the
sufficiency of the evidence, we view it in a light most favorable to the State and consider only
the evidence that supports the verdict. Id.In addressing Rodriguez’s sufficiency challenges, we must first determine if the
arguments were properly preserved for our review. In order to understand why his challenges
to the aggravated-assault and second-degree-domestic-battering charges were not properly
preserved, it is necessary to put the arguments raised below in context.
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Cite as 2014 Ark. App. 660Here, by amended information, Rodriguez was charged as a habitual offender with the
offenses of attempted capital murder (two counts), terroristic threatening, aggravated assault,
and intimidating a witness; however, the State proceeded to trial on the attempted-capital-
murder counts and terroristic threatening only, nolle prossing the remaining charges. After
the State rested its case in chief, Rodriguez challenged the sufficiency of the evidence
supporting both counts of attempted capital murder and terroristic threatening, but his
“motion to dismiss” was denied. Before Rodriguez began presenting his case, the State
amended the charges against him to two counts of aggravated assault, second-degree domestic
battering, and first-degree terroristic threatening. Rodriguez did not object to the
amendments. He then presented his case, and at the close of the evidence, he moved for a
directed verdict on the charges of second-degree domestic battering, aggravated assault, and
first-degree terroristic threatening. The motion was denied.
In this rather unusual setting, it is clear that after the State rested its case, Rodriguez
challenged the sufficiency of the evidence to the two original counts of attempted capital
murder and terroristic threatening, but, once the charges were amended and before he
presented his case, he did not challenge the amended charges of aggravated assault and second-
degree domestic battering.
Rule 33.1 of the Arkansas Rules of Criminal Procedure provides in pertinent part:
(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made
at the close of the evidence offered by the prosecution and at the close of all of the
evidence. A motion for directed verdict shall state the specific grounds therefor.
....
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Cite as 2014 Ark. App. 660(c) The failure of a defendant to challenge the sufficiency of the evidence at the
times and in the manner required in subsection (a) . . . will constitute a waiver of any
question pertaining to the sufficiency of the evidence to support the verdict or
judgment.
Because there was no objection to the amendment of the charges, and Rodriguez did not
challenge the sufficiency of the evidence supporting his convictions for aggravated assault and
second-degree domestic battering after the State closed its case in chief and before he
presented his own case, his challenges to those convictions were not preserved for our review.
Moreover, with respect to the first-degree-terroristic-threatening charge, the
sufficiency argument made at trial focused more on rehashing evidentiary matters concerning
the text message, which will be discussed infra, rather than arguing specifically why the
evidence that was presented was not sufficient to support the charge. Even so, at the time of
these events, a person committed first-degree terroristic threatening 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). The
text message that Hannah read to the jury, which she testified was from Rodriguez,
contained, for example, statements of “doing a 187 on you,” which she explained stands for
homicide; “[c]hopping” up her parents’ house with bullets; and knocking her teeth out.
Viewing the evidence in the light most favorable to the State, we hold that there was
substantial evidence to support the conviction for first-degree terroristic threatening.
Returning to the points of appeal in the order that they were raised, Rodriguez’s next
two points contend that he was prejudiced when the trial court abused its discretion by
allowing Hannah to read the text message into evidence to refresh her recollection and that
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Cite as 2014 Ark. App. 660the trial court erred when it allowed the inflammatory text message to be introduced into
evidence. For ease of discussion, we address these two points together because they both deal
with the same text message, and many of the arguments overlap. We review a trial court’s
decision to admit or exclude evidence for an abuse of discretion. Holmes v. State, 2014 Ark.
App. 502, 441 S.W.3d 916. We find no basis for reversal concerning either point. We do
agree with the State, however, that the more appropriate basis for allowing the text message
was as an admission by a party opponent pursuant to Rule 801(d)(2) of the Arkansas Rules
of Evidence, rather than to refresh Hannah’s memory. See Neal v. State, 375 Ark. 389, 291
S.W.3d 160 (2009) (affirming where trial court reached the correct result, even if for a
different reason).
Rule 801(d)(2) provides:
(d) Statements Which Are Not Hearsay. A statement is not hearsay if:
....
(2) Admission By Party-opponent. The statement is offered against a party and is (i)
his own statement, in either his individual or a representative capacity, (ii) a statement of
which he has manifested his adoption or belief in its truth, (iii) a statement by a person
authorized by him to make a statement concerning the subject, (iv) a statement by his
agent or servant concerning a matter within the scope of his agency or employment,
made during the existence of the relationship, or (v) a statement by a coconspirator of
a party during the course and in furtherance of the conspiracy.
(Emphasis added.) Rodriguez’s text message constitutes a party admission.
In his reply brief, Rodriguez argues that Rule 801(d)(2) is not applicable because the
text message “was not being offered against the Appellant.” He seems to mean that because
it was read to the jury, instead of the writing marked as State’s Exhibit 1 being introduced
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Cite as 2014 Ark. App. 660into evidence, that it was not “offered” against him. We consider that to be a distinction
without a difference under the circumstances of this case. Rodriguez’s text message was read
to the jury by Hannah and thereby offered against him, even though the writing itself was
inexplicably never provided to the jury and made part of the record.
Rodriguez further contends that because the text message was not offered under
801(d)(2) at trial, he did not have the “opportunity to be heard on the authentication prong,”
and that it would be inappropriate for this court to analyze it under 801(d)(2). We disagree.
Even though the discussion at trial focused on evidentiary rules other than 801(d)(2), it was
always clear that the State took the position that the text was from Rodriguez. Hannah
testified that the text was from Rodriguez, and Rodriguez offered no evidence disputing that
assertion. Thus, even under the other evidentiary rules, authenticity was still at issue, and
Rodriguez did not challenge the authenticity of the text.
Attempting a further demonstration of abused discretion, Rodriguez argues that he is
a Hispanic male and the text contained racially derogatory comments about Hannah, a white
female, and was read by her to a predominantly white jury. The argument was not developed
below and therefore not preserved for our review. He also argues that the text was prejudicial
because it was taken out of context and presented only one side of a two-sided conversation.
In making the argument, he relies upon Rule 106 of the Arkansas Rules of Evidence, which
provides:
Whenever a writing or recorded statement or part thereof is introduced by a
party, an adverse party may require him at that time to introduce any other part or any
other writing or recorded statement which in fairness ought to be considered
contemporaneously with it.
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Cite as 2014 Ark. App. 660The rule is designed to allow the presentation of recorded or written statements in context,
so as to avoid misleading the jury. Here, however, the trial court questioned Hannah about
the existence of other text messages with Rodriguez. She explained that she had deleted
them—that they no longer existed—and acknowledged that she, too, had said some
“heinous” things and that the texts were written by both of them in anger. The trial court
told Rodriguez that in the absence of the other texts, he would have to handle the situation
by cross-examination. There is no indication that the State played any role in the deletions,
and Rodriguez abandons any discovery-violation arguments. Rodriguez had the same access
to all of the texts between him and Hannah, and the text that was read to the jury was the sole
text that Hannah provided to the police and that helped form the basis for the charge of
terroristic threatening. As much context as possible was provided to the jury in light of the
fact that the other texts were deleted, and we find no abuse of the trial court’s discretion in
this respect.
Rodriguez next makes a glancing argument that because the text also contained
derogatory comments directed toward a man named Barney, Hannah’s friend, it constituted
evidence of other bad acts that were not relevant and were prejudicial. We disagree because
the comments directed toward Barney also supported the charge of terroristic threatening.
Rodriguez further argues that the State violated discovery rules by not providing him
with a text message in Spanish from his own mother to Hannah. As noted by the State, the
text was never mentioned to the jury nor introduced at trial. In a bench conference on the
issue, the prosecutor explained that she did not plan to use it unless the mother testified and
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Cite as 2014 Ark. App. 660then it would be used as rebuttal—not as part of the State’s case in chief. It never happened.
Moreover, the State informed the trial court at the bench conference that there was nothing
exculpatory in the text, and if anything it was inculpatory addressing the injuries sustained by
Hannah. Rodriguez never asked the trial court to review the text itself and make its own
determination, and Rodriguez never sought to have the text proffered, so there is nothing for
this court to be able to review. He counters that because the mother’s text was never provided
to him, there was no way he could proffer it. We disagree. He could have sought an in
camera determination from the trial court with the text proffered under cover. Moreover,
we fail to see how Rodriguez was prejudiced because his mother’s text was never used at trial.
Finally, Rodriguez argues that the photograph of the text was not the best evidence
of its contents. We disagree. The State presented an AT&T representative, who testified that
the company does not keep records of the content of text messages. Hannah explained that
the texts had been deleted from her phone, and that the photograph of the text accurately
reflected the text message she received from Rodriguez. Under these circumstances, the
photograph of the text was all there was, and Rodriguez had the opportunity to cross-
examine Hannah about it.
Rodriguez next contends that the trial court erred in denying his motion for a mistrial
based on the fact that, after trial, it was learned that a juror had seen him accompanied by an
officer outside the courthouse. We disagree.
A mistrial is a drastic remedy, and it is proper only where the error is beyond repair
and cannot be corrected by any other curative relief. Banks v. State, 315 Ark. 666, 869
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Cite as 2014 Ark. App. 660S.W.2d 700 (1994). The trial court has wide discretion in granting or denying a motion for
mistrial, and its decision will not be disturbed except where there is an abuse of discretion or
manifest prejudice to the complaining party. Id. Restraints are not per se prejudicial, and the
defendant must affirmatively demonstrate prejudice. Williams v. State, 347 Ark. 728, 67
S.W.3d 548 (2002). We will not presume prejudice when there is nothing in the record to
indicate what impression may have been made on the jurors or where the appellant did not
offer any proof of prejudice. Id.Here, there is not even a contention that Rodriguez was seen in restraints. Rather,
after the verdicts were returned but before Rodriguez was sentenced, his counsel learned that
one juror had seen Rodriguez being escorted into the courthouse by sheriff’s deputies, and
he also argued that there had been other instances where it was obvious that Rodriguez was
in custody by the officers’ proximity to him. The trial court conducted an in-chambers
examination of the juror, asking about her observations. She acknowledged that she had seen
him walking with the officers as she sat in her car that morning. She stated that she just
assumed it was standard procedure. Defense counsel was allowed to question the juror, but
he did not pursue inquiries about possible prejudice. We find no abuse of the trial court’s
discretion in denying Rodriguez’s motion for a mistrial under the circumstances presented
here.
Rodriguez next contends that the trial court erred in denying his motion to dismiss
the charges because his rights against double jeopardy were violated when the trial court did
not dismiss the charge of second-degree domestic battering. He seeks retrial on one count
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Cite as 2014 Ark. App. 660of aggravated assault only. The basis of his argument is his contention that he was engaged
in a continuous course of conduct, not separate offenses, and should not have been tried on
separate offenses. That is, he contends that only one aggravated assault occurred because the
acts all took place during the same episode. We disagree.
The doctrine against double jeopardy protects defendants from receiving multiple
punishments for the same offense. Dilday v. State, 369 Ark. 1, 250 S.W.3d 217 (2007).
Arkansas Code Annotated section 5-1-110(a)(5) provides in pertinent part:
(a) When the same conduct of a defendant may establish the commission of
more than one (1) offense, the defendant may be prosecuted for each such offense.
However, the defendant may not be convicted of more than one (1) offense if:
....
(5) The conduct constitutes an offense defined as a continuing course of
conduct and the defendant’s course of conduct was uninterrupted, unless the law
provides that a specific period of the course of conduct constitutes a separate offense.
A continuing offense is a continuous act or series of acts that are begun by a single impulse
and operated by an unintermittent force, and the test to determine whether a continuing
offense is involved is whether either the individual acts or the course of action that they
constitute are prohibited. Halpaine v. State, 2011 Ark. 517, 385 S.W.3d 838. If it is the
individual acts that are prohibited, then each act is punishable separately. Id. If it is the
course of action that is prohibited, then there can be only one penalty. Id. Where there is
a single impulse, only one charge lies, but if there are separate impulses, separate charges lie
even if all are part of a common stream of action. Id.12
Cite as 2014 Ark. App. 660At trial, in defending against the motion to dismiss, the trial court asked the prosecutor
to identify the acts constituting two aggravated assaults and the second-degree domestic
battering. The prosecutor explained that there were actually three aggravated assaults:
putting the gun in Hannah’s mouth, putting the gun to the back of Hannah’s head, and
choking her, thereby restricting the air she could breathe. With respect to domestic
battering, the prosecutor identified the injuries Hannah suffered from Rodriguez hitting her
on her head with the gun while they were in a dating relationship. We agree that these are
separate acts resulting from separate impulses, even though they happened during the same
criminal episode. They constituted separate and distinct acts and the trial court did not err
in denying the motion to dismiss.
We addressed the first portion of Rodriguez’s final point of appeal, which challenged
the sufficiency of the evidence supporting his convictions, at the outset of this opinion. In
the remaining part of his final point, he contends that the trial court erred in denying his
motion for new trial, which was filed after his trial and was based on his positions that the
trial court erred in admitting the text message, erred in failing to grant a mistrial, and erred
in refusing to dismiss charges because he was overcharged by the State. All of these
arguments were raised and addressed in earlier points, and we found no merit in them. It is
not necessary to address those arguments again here.
Affirmed.
VAUGHT and WOOD, JJ., agree.
Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., for appellant.
Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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