concurring. I agree with the majority in
affirming the conviction for terroristic threatening, stemming from Lewis’s ordering her son to release pit bulls upon the police officers. I write separately, however, because I do not agree that the trial court erred in admitting the officers’ testimony that they witnessed the previous attack by pit bulls at the residence where Lewis engaged in the behavior that led to the conviction.
It is not necessary that the State prove that the victims of second-degree terroristic threatening actually were terrorized, and the state of mind of the recipient of the threat is not an element of the offense. Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988). The majority incorrectly expands the holding of Smith, in my view, to defeat the State’s contention that the evidence at issue was admissible as relevant to the victims’ state of mind.
In order to prove the elements of terroristic threatening, the State was required to prove that Lewis’s purpose in telling her son to release the pit bulls upon the police officers was to terrorize them. See Ark. Code Ann. § 5-13-301 (b)(1) (Repl. 1997). This court discussed the elements of terroristic threatening in Knight v. State, 25 Ark. App. 353, 758 S.W.2d 12 (1988), where we stated:
We agree with the State that the gravamen of the offense of terroristic threatening is communication, not utterance. The statute does not require that the threat be communicated by the accused directly to the person threatened. There is no requirement that the terrorizing continue over a prolonged period of time. Nor does the statute require that it be shown that the accused has the immediate ability to carry out the threats. (1979). We do agree, however, with the statement of the court in State v. Morgan, 128 Ariz. 362, 625 P.2d 951 (1981), that to be found guilty of threatening the defendant must intend to fill the victim with intense fright. Under our statute it is an element of the offense that the defendant act with the purpose of terrorizing another person, i.e., it must be his “conscious object” to cause fright.
25 Ark. App. at 356-57, 758 S.W.2d at 14 (some citations omitted). In Knight, a deputy sheriff listening by intercom to an inmates’jail cell overheard the defendant say that some deputies would not die of natural causes because he would be out of the “pen” someday. The Knight court considered as part of the sufficiency of the evidence the deputy’s testimony that he “felt terrorized,” and we noted the State’s proof that he was, in fact, “put in fear.”1
The fear of the victim has also been considered as part of the sufficiency of the evidence for kidnapping, although it is not an element of that crime. See Hickey v. State, 14 Ark. App. 50, 684 S.W.2d 830 (1985). In Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992), the supreme court referred to the victim’s fear although it is not an element of kidnapping, aggravated robbery, and rape, for which the appellant was convicted. The Brooks court wrote the following in addressing the argument that a knife found in the car where the attack occurred could not be tied directly to the attack and that its admission unduly prejudiced the jury:
The knife was found in the car, which was the site of the crime, and the victim was cut by a knife. The instrumentality used to inflict fear is patently relevant to the crimes for which the appellant is charged, all of which include an element of force for perpetration. Whether this was the actual knife used was a matter for the jury to decide, but it was relevant to corroborate the testimony of the victim concerning the stabbings.
308 Ark. at 669, 827 S.W.2d at 124.
Purpose and intent are frequently not subject to proof by direct evidence and may be inferred from the facts and circumstances of the case. Edwards v. State, 40 Ark. App. 114, 842 S.W.2d 459 (1992); see Russey v. State, 322 Ark. 786, 912 S.W.2d 420 (1995). Here, the State was required to prove that Lewis’s purpose was to terrorize the officers, and it introduced proof that the instrumentality she intended to employ was the pit bulls. I would view the officers’ testimony that they had witnessed a previous attack by a pit bull at the same residence where Lewis ordered pit bulls to be released upon them as relevant proof that the officers were fearful of her order, and as circumstantial, relevant proof that her purpose in ordering their release upon the officers was to terrorize them.
For the reasons stated, I concur.
Knight’s conviction was reversed because we did not think that the evidence was sufficient to establish that the appellant, even if aware that he might be overheard, had made the statement with the conscious object of terrorizing the deputy.