Reynolds v. State

Cite as 2016 Ark. 214

SUPREME COURT OF ARKANSAS
No. CR-15-819

EDWARD JOSEPH REYNOLDS Opinion Delivered May 19, 2016

APPELLANT APPEAL FROM THE GRANT
COUNTY CIRCUIT COURT
V. [NO. 27CR-2014-106-1]

STATE OF ARKANSAS HONORABLE CHRIS E WILLIAMS,
JUDGE
APPELLEE
AFFIRMED.

RHONDA K. WOOD, Associate Justice

Edward Joseph Reynolds appeals a jury’s verdict finding him guilty of kidnapping

and aggravated assault. He was sentenced as a habitual offender to consecutive sentences of

life imprisonment and fifteen years’ imprisonment, respectively. On appeal, Reynolds

contends that the circuit court erred by (1) denying his directed-verdict motions on both

charges; (2) allowing the victim to testify about her injuries despite the prosecutor’s failure

to provide her medical records in discovery; and (3) overruling his objection to remarks

made by the prosecutor during closing argument. We find no error and affirm.

I. Relevant Facts

In October 2014, Rachel Wake, the victim, Reynolds, her boyfriend, and Michael

Watters, Reynolds’s friend, resided together. One evening in late October, Wake

accompanied Reynolds to his workplace. While there, the couple got into an argument

and Reynolds choked her. She screamed, and unbeknownst to either of them, two of

Reynolds’s coworkers witnessed the incident.
 Cite as 2016 Ark. 214

Reynolds lost his job as a result of the incident. He became irate and told Wake that

since he lost his job, she was going to lose her life. He tied her up at the foot of their bed

with cables from an exercise machine. He bound her arms and feet together behind her

back and secured them with padlocks. He then wrapped a cable around her neck and

attached it to the cables restraining her arms and legs so that she had to hold her head up to

keep from choking. He also placed a gag around her mouth. He beat her until her eyes

were swollen shut. Reynolds told Wake he was going to kill her, and he and Watters

discussed where they would drop her body. Reynolds also threatened to behead Wake’s

son and leave his head in the room with her for three days.

Eventually, Reynolds released Wake. He helped her bathe to wash off the blood.

She then got in bed with Reynolds and slept. Wake testified that Reynolds had been doing

drugs throughout the ordeal and that she knew that if she outlasted his drugs, she would

live. Two days later, Reynolds and Wake went to get more drugs at Clarence Stillman’s

home. While at his house, Wake asked Stillman to call her mother. Wake’s mother arrived

and took Wake to her house. She later called the police, and an ambulance took Wake to

the hospital. At the hospital, Wake was treated for a concussion, two minor fractures to her

wrist and pinky finger, and contusions to her neck, throat, and chest.

The police obtained a search warrant for Reynolds’s home a few days later. They

retrieved several cables, which were detached from the exercise machine, and locks. Blood

samples taken from the carpet near the foot of the bed in Reynolds’s bedroom matched

Wake’s DNA. The State filed kidnapping and aggravated-assault charges against Reynolds

and Watters. Watters later pleaded guilty in exchange for a suspended sentence and his

2
 Cite as 2016 Ark. 214

testimony against Reynolds. The jury found Reynolds guilty of both charges. During the

penalty phase of the trial, the State introduced evidence of Reynolds’s eleven prior

convictions. Reynolds was sentenced to life imprisonment for kidnapping and fifteen years

for aggravated assault, with the sentences to run consecutively. Thus, this court’s jurisdiction

is pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2015).

II. Sufficiency of the Evidence

Reynolds argues that the circuit court erred by not granting his motion for directed

verdict because the State failed to introduce substantial evidence that he restrained Wake

for the purpose of terrorizing her or that he engaged in life-threatening activity against her.

A directed verdict is a challenge to the sufficiency of the evidence. Williamson v. State, 2009

Ark. 568, 350 S.W.3d 787. In reviewing a sufficiency challenge, we determine whether

the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial

evidence is that which is of sufficient force and character that it will, with reasonable

certainty, compel a conclusion one way or the other, without resorting to speculation or

conjecture. Id. This court does not weigh the evidence presented at trial or assess the

credibility of the witnesses, as those are matters for the fact-finder. Riding v. State, 360 Ark.

424, 203 S.W.3d 63 (2005). The trier of fact is free to believe all or part of any witness’s

testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.

On appeal from a denial of a directed verdict, this court views the evidence in the light most

favorable to the appellee and affirms if there is substantial evidence to support the verdict.

Id.

3
 Cite as 2016 Ark. 214

A person commits the offense of kidnapping when he restrains another person,

without consent, so as to interfere substantially with the other person’s liberty with the

purpose of terrorizing the person. Ark. Code Ann. § 5-11-102(a)(6) (Repl. 2013).

“Restraint without consent” includes restraint by physical force, threat, or deception. Ark.

Code Ann. § 5-11-101(3)(A). 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).

A person commits aggravated assault when, under circumstances manifesting extreme

indifference to the value of human life, he purposely engages in conduct that creates a

substantial danger of death or serious physical injury to another person. Ark. Code Ann. §

5-13-204(a)(1). “Serious physical injury” is defined as “physical injury that creates a

substantial risk of death or that causes protracted disfigurement, protracted impairment of

health, or loss or protracted impairment of the function of any bodily member or organ.”

Ark. Code Ann. § 5-1-102(21).

Reynolds claims there was insufficient evidence that he restrained Wake for the

purpose of terrorizing her because he eventually untied her hands, allowed her to untie the

remaining restraints, and helped her take a bath. He also points out that Wake did not

attempt to escape from their home.

Reynolds’s argument is without merit. There was overwhelming evidence

introduced at trial that Reynolds restrained Wake and threatened to kill her and her son.

Wake testified in detail how Reynolds restrained her with cables and locks for hours while

he severely beat her. Her eyes were swollen to the point she was unable to see. Because

4
 Cite as 2016 Ark. 214

of the restraints, she was forced to keep her head up to keep from choking. Reynolds

repeatedly told her that he was going to kill her and that he would behead her son.

Watters’s testimony confirmed Wake’s account. He testified that he saw Wake’s

hands and feet bound with cables and locks and a belt wrapped around her neck. He heard

Reynolds beating Wake and later saw that she was bruised and that her eyes were severely

swollen. Watters verified that he and Reynolds had discussed disposing of Wake’s body.

He also recalled Reynolds’s threats to behead Wake’s son. Photographs of Wake, which

were admitted at trial, evidenced the severe bruising to her face and body, as well as ligature

marks to her neck, wrists, and ankles. Police officers also described how they found the

cables and locks in Reynolds’s home and that Wake’s blood was located near the foot of

Reynolds’s bed.

We find that these facts are sufficient to support Reynolds’s kidnapping conviction.

His argument that Wake did not attempt to escape immediately after the restraints had been

removed does not negate his criminal conduct nor does the fact that he later helped her

bathe. Thus, we hold that the circuit court did not err in denying his motion for directed

verdict.

Reynolds also asserts that there was insufficient evidence to support his aggravated-

assault conviction. He first claims that the State failed to prove that he acted purposely

because he had been using drugs during the incident. We agree with the State that this

argument is not preserved for appeal because Reynolds failed to raise it in his directed-

verdict motion to the circuit court. Ark. R. Crim. P. 33.1(c) (2015); Rounsaville v. State,

372 Ark. 252, 256, 278 S.W.3d 486, 490 (2008) (“Arguments not raised at trial will not be

5
 Cite as 2016 Ark. 214

addressed for the first time on appeal, and parties cannot change the grounds for an objection

on appeal, but are bound by the scope and nature of the objections and arguments presented

at trial.”).

Additionally, Reynolds argues that there was insufficient evidence that he acted

under circumstances manifesting extreme indifference to the value of human life because he

did not engage in life-threatening activity against Wake. This argument also is unsuccessful.

The State presented evidence that Reynolds had beaten Wake repeatedly while she was

bound in such a position that she had to hold her head up in order not to choke. The

photographs introduced at trial depicted serious injuries to her face, head, and neck. He

threatened to kill her and talked about disposing of her body. We find that this evidence

was sufficient to support the jury’s verdict, and the circuit court did not err in denying

Reynolds’s motion for directed verdict.

III. Victim’s Testimony of Her Injuries

Reynolds argues that he was exposed to “extreme prejudice” because the circuit

court allowed Wake to testify about her injuries even though “the State failed to provide

the alleged victim’s medical records prior to trial.” This argument also is not preserved for

appellate review. A defendant must object at the first opportunity and then renew his

objection each time the issue is raised. Conte v. State, 2015 Ark. 220, 463 S.W.3d 686;

Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003). Otherwise, he has waived his

argument regarding that issue on appeal. Conte, 2015 Ark. 220, at 29, 463 S.W.3d at 704.

Reynolds’s counsel failed to make a contemporaneous objection when Wake was

first asked about her injuries and testified that she suffered from a “concussion, two minor

6
 Cite as 2016 Ark. 214

fractures, [and] a bunch of contusions to [her] neck and throat, back and chest.” It was not

until later, when the prosecutor returned to the subject of her injuries, that an objection

was made. However, at that point, the jury had already heard this evidence, and Wake’s

statement was merely cumulative of her prior testimony regarding the injuries she suffered.

“Evidence that is merely cumulative or repetitious of other evidence admitted without

objection cannot be claimed to be prejudicial.” Conte, 2015 Ark. 220, at 30, 463 S.W.3d

at 704.

III. Prosecutor’s Remarks

Finally, Reynolds argues that the circuit court erred by overruling his objection to
the prosecutor’s comments in closing argument, which he calls an “improper vouching on
behalf of Ms. Wake.” A circuit court is given broad discretion to control counsel in closing
argument, and we do not interfere with that discretion absent a manifest abuse of discretion.
Jefferson v. State, 372 Ark. 307, 321–22, 276 S.W.3d 214, 225–26 (2008). “Although it is
not good practice for counsel to inject their personal beliefs into the closing arguments,
mere expressions of opinion by counsel in closing argument are not reversible error so long
as they do not purposely arouse passion and prejudice.” Id. (citing Neff v. State, 287 Ark.
88, 94, 969 S.W.2d 736, 740 (1985)). In Parker v. State, 265 Ark. 315, 332–33, 578 S.W.2d
206, 216 (1979), we stated,
The trial judge has a very broad latitude of discretion in supervising and
controlling the arguments of counsel and his action is not subject to reversal unless
there is manifest gross abuse of that discretion or the matter complained of is a
statement of the attorney's opinion made only to arouse passion and prejudice of the
jury, and which necessarily has that effect. . . . It is also significant that the trial judge
had instructed the jury that closing arguments of attorneys are not evidence and that
arguments having no basis in the evidence should be disregarded.

(Citations omitted.)

Here, the prosecutor stated the following during closing argument: “But I also

believe that what happened to her happened to her. I don’t believe, even though I don’t
7
 Cite as 2016 Ark. 214

agree with, bless her heart, the way she lives and the fact that she loves this man still, I

believe that what she has told us today.” The prosecutor’s comments here did not seem to

be calculated or made with the purpose of arousing any passion or prejudice of the jury.

Even though the circuit court overruled Reynolds’s objection, it promptly gave a curative

instruction, informing the jury that the prosecutor’s statements were only argument and

were not evidence. For these reasons, we find that the circuit court did not abuse its

discretion in denying Reynolds’s objection. See Harrison v. State, 276 Ark. 469, 475–76,

637 S.W.2d 549, 553 (1982) (finding no error in denying motion for mistrial because the

attorney’s comments during closing argument did not appear calculated and the court

immediately admonished the jury).

Pursuant to Arkansas Supreme Court Rule 4-3(i), the record has been reviewed for

all errors prejudicial to Reynolds. No reversible error has been found.

Affirmed.

BAKER and HART, JJ., concur.

KAREN R. BAKER, Justice, concurring. Although I concur in the result reached

by the majority, I write separately because the circuit court committed error with regard to

the prosecutor’s remarks in his closing argument. However, because the error was harmless,

I would affirm the circuit court.

In United States v. Young, 470 U.S. 1, 6, (1985) the United States Supreme Court

addressed prosecutors’ conduct and stated:

Nearly a half century ago this Court counselled prosecutors “to refrain from
improper methods calculated to produce a wrongful conviction. . . .” Berger v. United
States, 295 U.S. 78, 88(1935). The Court made clear, however, that the adversary
system permits the prosecutor to “prosecute with earnestness and vigor.” Ibid. In
8
 Cite as 2016 Ark. 214

other words, “while he may strike hard blows, he is not at liberty to strike foul ones.”
Ibid.

The line separating acceptable from improper advocacy is not easily drawn;
there is often a gray zone. Prosecutors sometimes breach their duty to refrain from
overzealous conduct by commenting on the defendant’s guilt and offering unsolicited
personal views on the evidence. Accordingly, the legal profession, through its Codes
of Professional Responsibility, and the federal courts, have tried to police
prosecutorial misconduct. In complementing these efforts, the American Bar
Association’s Standing Committee on Standards for Criminal Justice has promulgated
useful guidelines, one of which states that “[i]t is unprofessional conduct for the
prosecutor to express his or her personal belief or opinion as to the truth or falsity of
any testimony or evidence or the guilt of the defendant.” ABA Standards for
Criminal Justice 3-5.8(b) (2d ed. 1980).

(Parallel citations omitted).

Further, as noted by the majority, in Jefferson v. State, 372 Ark. 307, 321–22, 276

S.W.3d 214, 225 (2008), in addressing a motion for mistrial and affirming the circuit court’s

denial of the motion, we explained “Although it is not good practice for counsel to inject

their personal beliefs into the closing arguments, mere expressions of opinion by counsel in

closing argument are not reversible error so long as they do not purposely arouse passion

and prejudice. Neff v. State, 287 Ark. 88, 94, 696 S.W.2d 736, 740 (1985).”

Here, in his closing remarks, the prosecutor stated,

I believe that what happened to her happened to her. . . . I believe that what she has
told us today.

Reynolds objected to the prosecutor’s remarks asserting that the prosecutor had made

“improper argument, improper vouching on behalf of the witness.” The circuit court

overruled the objection and stated,

Ladies and gentlemen, I instructed you that argument of counsel is not
evidence in the case. It is only to guide you and direct you to where certain things
are. Whether or not these facts are specifically in the case or not, they are in the
general area of the case. But that is not evidence.
9
 Cite as 2016 Ark. 214

Despite this instruction, the prosecutor’s remarks directly prejudiced Reynolds. The

prosecutor improperly placed credibility and support from the prosecutor and the State in

the victim’s testimony. In other words, the prosecutor improperly vouched for the victim.

Further, the curative instruction did not address the improper vouching and did not cure

the prejudice. However, despite this statement being inappropriate and prejudicial to

Reynolds, the evidence presented of Reynolds’s guilt at trial was overwhelming, and the

fundamental fairness of the trial was not compromised. When the evidence of guilt is

overwhelming and the error is slight, we can declare that the error was harmless and affirm.

Barr v. State, 336 Ark. 220, 234–35, 984 S.W.2d 792, 799 (1999); Johnston v. State, 2014

Ark. 110, at 7, 431 S.W.3d 895, 899. Here, in addition to Wake’s testimony, Watters’s

testimony confirmed Wake’s account. Watters testified that he saw Wake’s hands and feet

bound with cables and locks and a belt wrapped around her neck. He further testified that

he heard Reynolds beating Wake and that he later saw Wake’s severely bruised and swollen

eyes. At trial, photographs were introduced into evidence showing severe bruising to

Wake’s face and body, and ligature marks to her neck, wrists, and ankles. Watters further

testified that he and Reynolds had discussed disposing of Wake’s body and that Reynolds’

had threatened to behead Wake’s son. Additionally, law enforcement testified that they

located cables and locks in Reynolds’s home and that Wake’s blood was located near

Reynolds’s bed.

Accordingly, based on my discussion above, the record demonstrates that there is

overwhelming evidence of Reynolds’s guilt, and the error was harmless. Therefore, I would

affirm the circuit court.

10
 Cite as 2016 Ark. 214

Hart, J., joins.

Philip C Wilson, for appellant.

Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.

11