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
