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ARKANSAS COURT OF APPEALS DIVISION III No. CR-13-934

Opinion Delivered May 21, 2014 JERRY FOSHEE APPELLANT APPEAL FROM THE POPE COUNTY CIRCUIT COURT [NO. CR-2012-522] V. HONORABLE WILLIAM PEARSON, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED

JOHN MAUZY PITTMAN, Judge

After a jury trial, appellant was found guilty of first-degree terroristic threatening and

was sentenced to three years’ imprisonment in the Arkansas Department of Correction. He

argues that the trial court erred in admitting the victim’s testimony that she was actually

frightened, and that the evidence was insufficient to prove that his utterance was intended to

cause intense fright in the victim. We affirm.

We first address the sufficiency of evidence because an appellant’s right to freedom

from double jeopardy requires a review of the sufficiency of the evidence prior to a review

of any asserted trial errors. Carter v. State,

,

(2005). The test for

determining the sufficiency of the evidence is whether the verdict is supported by substantial

evidence, direct or circumstantial.

In reviewing the sufficiency of the evidence, this court

views the evidence in a light most favorable to the State and considers only the evidence that

supports the verdict.

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Viewed in that light, the record shows that appellant was being represented by the Pate

& Swain law firm in Russellville in connection with a child-visitation issue. While speaking

on the telephone to a secretary of that firm, Jennifer Maladier, appellant became increasingly

angry and profane when told that no hearing date had yet been set and that his attorney was

out of the office. Ms. Maladier testified that appellant responded to that information by

“ranting and raving and cussing at me and getting louder,” then became quieter, changed his

tone, and said “I’ll kill Judge McCain [the circuit judge assigned to appellant’s visitation case].

That’s what I’ll do. I’ll just go kill Judge McCain.” Over objection, Maladier was permitted

to testify that she had been personally frightened for her own safety and that of Judge McCain

by appellant’s threat to kill Judge McCain. Appellant was convicted of committing terroristic

threatening against Maladier by threatening to kill Judge McCain. Appellant argues that the

evidence was insufficient to show that it was appellant’s intent to terrorize Maladier by

threatening to kill Judge McCain. We do not agree.

To sustain a conviction for first-degree terroristic threatening, the State must prove that

the defendant acted with the purpose of terrorizing another person by threatening to cause

serious death or serious physical injury to another person.

(a)(1)(A) (Repl. 2013). One acts “purposely” with respect to his conduct or the

result of his conduct when it is his “conscious object to engage in conduct of that nature or

to cause such a result.”

(1) (Repl. 2013). “Terrorizing” has been

said to mean “to fill the victim with intense fright.” See Knight v. State,

,

(1988). The statute does not require that the threat be communicated by the

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accused directly to the person threatened, and 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 had the immediate ability to carry out the threat.

Appellant argues that any threat that he may have made was directed against Judge

McCain, rather than Ms. Maladier, and that Ms. Maladier could not be a victim of any such

threat. We do not agree. We think that threats against the listener may be communicated

by angry outbursts, tone of voice, and death threats against third parties. It has been held that

no precise words are necessary to convey a threat to injure a person, and that it may be done

by innuendo or suggestion as well as by blunt speech. See, e.g., Griffin v. U.S.,

(D.C. 2004). Moreover, our terroristic-threatening statute does not require that the “victim”

be the same person whose life or safety is being expressly threatened. One commits the

offense if, “with the purpose of terrorizing another person, [the actor] threatens . . . another

person.”

(a)(1)(A). A defendant can intend to terrorize one

person by making threats against another person. We cannot say on this record that the jury

could not reasonably find that appellant’s threat to kill Judge McCain was in fact intended to

terrorize Ms. Maladier.

Nor do we think that the trial court erred in admitting Ms. Maladier’s testimony that

appellant’s words put her in fear for her safety and that of Judge McCain. Appellant’s

objection at trial was that whether Ms. Maladier was actually frightened was irrelevant because

it is not necessary for the victim of a threat to in fact be terrorized. See Lowry v. State,

,

(2005). However, it does not follow from the fact that actual fright

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need not be proved that the victim’s state of mind is irrelevant. A criminal defendant’s state

of mind is seldom capable of proof by direct evidence and thus normally must be inferred

from the evidence, including the type and nature of trauma suffered by the victim. Hooks v.

State,

. Whether evidence is relevant such that it has tendency to make

the existence of any fact that is of consequence to determination of the action more probable

or less probable than it would be without the evidence is a matter of discretion for trial court,

whose determination is entitled to great deference. Hoodenpyle v. State,

.

We will not disturb a trial court’s determination of the admissibility of evidence absent an

abuse of discretion.

On this record, we cannot say that the trial court abused its discretion

in permitting Ms. Maladier to testify concerning her state of mind after hearing appellant’s

threat.

Affirmed.

HIXSON and WOOD, JJ., agree.

John Burnett, for appellant.

Dustin McDaniel, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., and Lindsay Bridges,

Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission

to the Bar of the Supreme Court under the supervision of Darnisa Evans Johnson, Deputy Att’y

Gen., for appellee.

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