Neal v. State

Cite as 2016 Ark. App. 384

ARKANSAS COURT OF APPEALS

DIVISION IV
No. CR-15-1073

Opinion Delivered: SEPTEMBER 7, 2016

RICKEY NEAL APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT,
FIRST DIVISION [NO. 60CR-13-230]
V.
HONORABLE LEON JOHNSON,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED

KENNETH S. HIXSON, Judge

Appellant Rickey Neal appeals after he was convicted by a Pulaski County jury of

domestic battering in the second degree, theft of property, and fleeing and was sentenced

to serve a total of 300 months in the Arkansas Department of Correction. On appeal,

appellant contends (1) that the trial court erred when it denied his motion for directed

verdict and (2) that the trial court abused its discretion when it denied his motion for mistrial.

We affirm.

Appellant was charged by information with aggravated robbery, domestic battering

in the second degree, theft of property, terroristic threatening in the first degree, and fleeing.

At trial, Officer Stan Wilhite testified that he was dispatched to the residence of the victim,

Betty Frazier, on the evening of December 2, 2012. During his walk-through of the

residence, the officer observed several items in disarray and some furniture turned over,

which indicated to him that there had been some sort of an altercation. He observed several
 Cite as 2016 Ark. App. 384

apparent blood stains at the scene, and he took samples of fresh blood that were found at

Ms. Frazier’s home and at a store across the street. 1 The officer testified that he took several

photographs at the scene. Afterwards, the officer went to the hospital to meet with the

victim, Ms. Frazier. Ms. Frazier had already received medical treatment and had bandages

covering parts of her face. The officer took photographs of Ms. Frazier.

Ms. Frazier testified that she was sixty-five years old at the time of the altercation.

She explained that she had been romantically involved with appellant, that they were living

together, and that he knew her age. She was the owner of a black 2010 Ford Edge.

Ms. Frazier testified that on the night of December 2, 2012, appellant became upset with

her in the bedroom after she told him that she would not marry him. She testified that he

subsequently struck her with her pistol that he had taken out of her dresser drawer. After

the appellant had struck her with the pistol, she explained that she fell against the closet door

and “passed out.” When she came to, appellant had lifted her up by her pockets and was

trying to find her car keys. After he found them, she asked to go to the bathroom because

there was blood on her face and in her eyes. Ms. Frazier indicated that the appellant

followed her throughout several rooms of the home and continued to “terrorize” her. At

one point, the appellant told her that he would kill her and then kill himself. In the main

room of the residence, appellant took a hardened seashell and struck her in the forehead.

Ms. Frazier finally was able to get out of the home by shoving appellant over a chair, and

she fled to a tobacco store located across the street. Ms. Frazier testified that she collapsed

1
Ms. Frazier later testified that after the altercation, she ran across the street to a
tobacco store.
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at the store and was subsequently transported to the hospital by ambulance. After her release

from the hospital, Ms. Frazier discovered that she was missing jewelry and that her Ford

Edge was missing. Ms. Frazier testified that appellant did not have permission to take her

jewelry or her car that night. Throughout her testimony, the prosecutor showed Ms. Frazier

photographs of the scene as she described the chain of events, and she indicated that it was

her blood depicted in the photographs.

Dr. David Edrington testified that he was Ms. Frazier’s treating physician in the

emergency room. He explained that she suffered from a scalp laceration that was ten

centimeters in length on the crown of her scalp; multiple contusions, bruising, and swelling,

predominantly around her left orbital area; and one lost tooth. After using staples to close

the laceration, Dr. Edrington chose to admit her into the hospital for further observation.

Lieutenant Barry Brewer testified that he was the shift commander on duty the night

of the altercation. He explained that he observed the appellant operating a black Ford Edge

and activated his blue lights in an attempt to stop the vehicle. However, the vehicle did

not stop; instead, the appellant led law enforcement officers on a high-speed pursuit lasting

approximately sixteen minutes, with appellant traveling up to 132 miles per hour at one

point. Eventually, law enforcement deployed spike strips to stop appellant’s vehicle, and

the appellant was apprehended.

Officer Nick Kinsey testified that he assisted in the pursuit of the appellant. Kinsey

testified that after the appellant had been apprehended, although he observed some blood

on appellant’s clothing, he did not observe any injuries on appellant. Crime Specialist

Rachel Carver and Detective Reagan Hilgeman testified that they searched the black Ford

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Edge operated by the appellant after appellant’s arrest. They discovered jewelry and what

appeared to be blood in the vehicle.

Detective Brad Silas testified that he took photographs of appellant in an interview

room after he had been arrested. The detective noticed that appellant had blood on his

clothing and a small scratch on his hand and chest. However, appellant did not complain

of any injuries at the time, and none of the injuries were bleeding at that time. Additionally,

appellant did not exhibit any signs of intoxication.

Appellant’s testimony at trial painted a very different version of events. The appellant

openly admitted to the jury that he was guilty of fleeing and that he had been previously

convicted of second-degree battery, theft by receiving, aggravated assault on a family or

household member, and terroristic threatening. He explained that on the night of the

incident he had been out drinking with friends while Ms. Frazier stayed home. The

appellant admitted that he was drunk. When he returned home, the appellant found

Ms. Frazier lying in bed drinking wine. He testified that he went downstairs to eat, drink

some more alcohol, and smoke cigarettes. At some point thereafter, the appellant stated

that he returned to the bedroom and went to sleep. The appellant explained that he woke

up after he had been hit across his chest, and he discovered that his hands had been tied with

two neckties. The lights were off in the home. He further testified that the person

continued to hit him, hitting him on his head, crushing the knuckles of his hand, and

stabbing his big toe with a pocketknife. He managed to get himself loose and fought with

the person around the house. It was only after the appellant had turned the lights on that

he realized that he had been fighting with Ms. Frazier and that it was Ms. Frazier lying on

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the floor. The appellant indicated that he tried to help Ms. Frazier and wanted to take her

to the hospital. However, Ms. Frazier threw a towel at him and left. The appellant denied

that there was any argument about marriage. He further denied hitting Ms. Frazier with a

gun or seashell and stated that he instead hit her with a flashlight in the bedroom only

because he did not know that it was Ms. Frazier. After Ms. Frazier left, the appellant

explained that he left in the Ford Edge because he was afraid that the police would take him

back to prison since he was already on parole. Finally, he denied taking any jewelry from

Ms. Frazier and explained that the jewelry that was found in the Ford Edge had already

been in the vehicle.

The jury found appellant not guilty of aggravated robbery, and the jury was unable

to reach a decision for terroristic threatening in the first degree. However, the jury did find

appellant guilty of domestic battering in the second degree, theft of property, and fleeing.

The appellant was sentenced to serve 300 months for domestic battering in the second

degree, 12 months for theft of property, and 180 months for fleeing in the Arkansas

Department of Correction, to be served concurrently. This appeal followed. 2

Appellant first alleges that the trial court erred in denying his motion for directed

verdict. Specifically, he argues that the jury lacked substantial evidence to convict him of

domestic battering in the second degree because the victim’s version of events was unlikely

based on the evidence of appellant’s physical condition. Instead, he argues that the evidence

was clear that the victim was the initial aggressor. We disagree.

2
Appellant did not appeal his convictions for theft of property and fleeing.
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A motion for a directed verdict is a challenge to the sufficiency of the evidence.

Wyles v. State, 368 Ark. 646, 249 S.W.3d 782 (2007). On an appeal from a denial of a

motion for a directed verdict, the sufficiency of the evidence is tested to determine whether

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

whether there is substantial evidence to support the verdict, this court reviews the evidence

in the light most favorable to the State and considers only that evidence which supports the

verdict. Id. Substantial evidence is that evidence which is of sufficient force and character

to compel a conclusion one way or the other beyond suspicion or conjecture. Id.

It is well settled that the credibility of witnesses is an issue for the jury and not this

court. Airsman v. State, 2014 Ark. 500, 451 S.W.3d 565. Furthermore, the jury is free to

believe all or part of any witness’s testimony and may resolve questions of conflicting

testimony and inconsistent evidence. Id. In doing so, the jury may choose to believe the

State’s account of the facts rather than the defendant’s. Id. Additionally, the jury is not

required to set aside common sense and need not view each fact in isolation, but it may

instead consider the evidence as a whole. Lewis v. State, 2014 Ark. App. 730, 451 S.W.3d

591.

In relevant part, “a person commits domestic battering in the second degree if . . .

[t]he person knowingly causes physical injury to a family or household member he or she

knows to be sixty (60) years of age or older or twelve (12) years of age or younger.” Ark.

Code Ann. § 5-26-304 (Repl. 2013). Here, Ms. Frazier testified that appellant was a

household member living with her at the time, knew that she was sixty-five years old, and

struck her on the head and face with a gun and seashell. Although appellant argues that the

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evidence supported his version of events, the jury was free to believe Ms. Frazier’s version

of events in resolving the conflicting testimony. See Airsman, supra. Thus, there was

substantial evidence to support appellant’s convictions, and we affirm as to appellant’s first

point on appeal.

In appellant’s second point on appeal, he alleges that the trial court abused its

discretion when it denied his motion for mistrial. The appellant more specifically argues

that he made two motions for mistrial that the trial court erred in denying. A mistrial is an

extreme remedy that should not be declared unless there has been error so prejudicial that

justice cannot be served by continuing the trial or when the fundamental fairness of the trial

itself has been manifestly affected. Britton v. State, 2014 Ark. 192, 433 S.W.3d 856. Our

supreme court has held that a cautionary instruction or admonition to the jury can make

harmless any prejudice that might occur. See Green v. State, 2013 Ark. 497, 430 S.W.3d

729. A mistrial is proper only where an error is beyond repair and cannot be corrected by

any curative relief. McClinton v. State, 2015 Ark. 245, 464 S.W.3d 913. The trial court has

wide discretion in granting or denying a motion for mistrial and, absent an abuse of that

discretion, the trial court’s decision will not be disturbed on appeal. Britton, supra.

The first motion for mistrial raised in appellant’s brief on appeal was made during

closing arguments. In his closing statements, the prosecutor made the following comments

to the jury:

But then [defense] counsel said [in his closing statements], the injuries to
Rickey Neal, those aren’t in dispute. Well, I wholeheartedly disagree with him. I
think those injuries very much are in dispute. He kept going on and on about the
knuckles and how during all of this Ms. Frazier broke his knuckles and, look, no
knuckles. But ladies and gentlemen, knuckles, no knuckles. Knuckles, no knuckles.
And Ms. Frazier certainly didn’t come up over here the five seconds I’m doing this
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and break the knuckles on my hand. You heard no medical doctor testify to the
injuries that he observed. You heard no medical doctor testify that this right here,
the bone spur was the result of what happened or that the knot on his head was a
result of what happened. And you didn’t hear that testimony because Mr. Neal made
all of that up. He made up every single bit of the injuries to him, except for the
injuries which you could see. You could see the injuries, the - - the scrapes to his
fingers - -

At that point, defense counsel made a motion for mistrial, arguing that the prosecutor had

improperly shifted the burden of proof to the defendant. The trial court agreed that the

comments were improper but denied the motion for mistrial. Instead, he admonished the

jury to disregard the comment and instructed the jury that the defense did not bear the

burden of proof.

Assuming arguendo that the prosecutor’s statements were improper, the statements

were not of such magnitude that we must find that the court abused its discretion in denying

the motion. Additionally, even where a remark is improper, the trial court may deny the

mistrial motion and cure any prejudice by admonishing the jury to disregard the remark.

Williams v. State, 2014 Ark. 253, 435 S.W.3d 483. An admonition to the jury normally

cures a prejudicial statement unless it is so patently inflammatory that justice could not be

served by continuing the trial. Id. On this record, we conclude that any possible prejudice

was cured by the trial court’s admonition to the jury and that there was no abuse of

discretion in denying appellant’s motion for mistrial.

The second motion for mistrial raised in appellant’s brief on appeal was made during

the direct examination of the victim, Ms. Frazier. Exhibits twenty-seven and twenty-eight

were photographs taken at the hospital depicting the injuries to Ms. Frazier’s face and had

already been admitted into evidence and published to the jury through previous testimony.

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When the prosecutor sought to show the photographs to Ms. Frazier, the prosecutor

predicated his questions by stating, “Ms. Frazier, I’m showing you picture No. 27. And I

apologize. These are some gruesome pictures.” Appellant objected and argued that he was

entitled to a mistrial because the prosecutor was testifying and that the statements were

prejudicial. The prosecutor explained that the witness previously had a very emotional

reaction to those photographs and that the purpose of the comment was to prepare her

before showing her the photographs. The trial court denied appellant’s motion for mistrial

and did not provide any limiting instruction to the jury.

Counsel argues on appeal that appellant was prejudiced by the prosecutor’s comment

that the photographs were gruesome and that the trial court abused its discretion in denying

his motion for mistrial. We disagree. The photographs shown to Ms. Frazier had already

been introduced at trial and had been published to the jury, and the jury was able to evaluate

the evidentiary value of the photographs on their own. Additionally, the trial court is in a

better position to determine whether a remark prejudiced the jury. See Green, supra; see also

Burnett v. State, 299 Ark. 553, 776 S.W.2d 327 (1989) (affirming a trial court’s denial of a

motion for mistrial after the prosecutor commented that the defendant “[h]elped her right

into the morgue” during cross-examination after the defendant stated that he was trying to

help the victim). Because appellant has failed to demonstrate that there was a reasonable

probability of resulting prejudice here, we affirm the trial court’s denial of mistrial as not

manifesting an abuse of discretion.

Finally, to the extent that appellant argues that he was entitled to a mistrial based on

the cumulative effect of the prosecutor’s statements, we hold that his cumulative-error

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argument is without merit. We do not “recognize the cumulative-error doctrine when

there is no error to accumulate.” Green, 2013 Ark. 497, at 34, 430 S.W.3d at 751 (quoting

Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000)). Thus, we affirm.

Affirmed.

KINARD and WHITEAKER, JJ., agree.

Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., for appellant.

Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.

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