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                SUPREME COURT OF ARKANSAS
                                       No.   CR-15-522

ARDWIN FRANK SYLVESTER                            Opinion Delivered   March 31, 2016
                   APPELLANT
                                                  APPEAL FROM THE SEBASTIAN
V.                                                COUNTY CIRCUIT COURT
                                                  [NO. CR-14-633]

STATE OF ARKANSAS                                 HONORABLE J. MICHAEL
                                  APPELLEE        FITZHUGH, JUDGE

                                                  AFFIRMED.


                            KAREN R. BAKER, Associate Justice


       On May 14, 2015, appellant, Ardwin Frank Sylvester, was convicted by a Sebastian

County Circuit Court jury of kidnapping, rape, and aggravated robbery and sentenced to

three terms of life imprisonment. On May 20, 2015, Sylvester timely filed his notice of

appeal. On October 16, 2015, Sylvester filed his brief with this court, and the State timely

responded. Sylvester raises two points on appeal: (1) the State provided insufficient evidence

to find Sylvester guilty of kidnapping, rape, or aggravated robbery; (2) the circuit court erred

when it denied Sylvester’s motion for mistrial. We have jurisdiction pursuant to Ark. Sup.

Ct. R. 1-2(a)(2) (2015).

       Sylvester’s convictions arise from the June 24, 2014 kidnapping, rape, and aggravated

robbery of DeAnn Opitz. The record demonstrates that on June 24, 2014, Opitz went to a

Staples office supply store in Fort Smith, Arkansas, around 11:00 a.m. After completing her

purchase and returning to the driver’s side of her car, Opitz testified that a man approached
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her from behind, was armed with a silver and black automatic weapon, and told her to get

in the car and “scoot over” to the passenger seat. She testified that she tried to give him her

purse, her keys, and her car—anything to leave her there in the parking lot. Opitz testified

that she stood still at his commands and Sylvester said, “I am a bad motherfucker and I will

use this gun”; she then complied and got in the car and moved over to the passenger seat.

Opitz testified that she saw two Staples employees, with one employee on the phone. Opitz

further testified that as Sylvester pulled out of the Staples parking area, the employee gave her

a thumbs-up sign, and she shook her head “No” and gave him a thumbs-down sign. Opitz

testified that they traveled on State Highway 10 and once they got to a residential area,

Sylvester told her to “take [her] titties out so he could see them.” She begged him not to

rape her, and she said he told her he just wanted to see them, while continuing to drive, laid

the gun in his lap, and pointed it at her. Opitz testified that he fondled her breasts with his

right hand and was very rough tearing the straps to her dress. Opitz testified that Sylvester

kept driving and went out to the industrial-park area and at that point asked her to pull up

her dress so he could see her panties. Opitz again asked him not to rape her, and Sylvester

made sure she knew he had the gun; she complied and pulled up her dress. With the barrel

of the gun pointed at her from his lap, Sylvester instructed her to pull her panties to one side,

he inserted his fingers into her vagina over and over. Opitz testified that after this, Sylvester

unzipped his pants and ordered her to touch his penis. She testified that during this time

Sylvester made sure that Opitz knew he could get to the gun and use it if she did not

comply. She testified that after this, that they continued to drive around and were close to


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Ashdown, and Sylvester let her cover herself back up. She testified that Sylvester then began

to go through her purse, took money from her purse, and shoved the money into the

pockets of his jeans. She testified that they were driving through off-road rugged country and

she feared for her life.

       Opitz testified that once they got to Ashdown, Sylvester turned into a Burger King,

instructed Opitz not to make any gestures or signals or talk to people or she would be hurt

as well as people inside the restaurant, and he ordered two drinks. After leaving Burger King,

Sylvester pulled into a nearby EZ Mart because the fuel light in Opitz’s car had come on and

the vehicle needed gas. Opitz testified that when they pulled in the EZ Mart, Sylvester put

the gun into the waist of his jeans and told her again to not make any gestures, moves, or

statements to anybody. Sylvester went inside to prepay for gas. Opitz testified that when he

returned, he was having trouble getting the gas tank open, asked her to exit the car and open

the tank, which she did. Opitz testified that after helping Sylvester open the gas tank, she

returned to the car and did not put her seat belt on. While Sylvester was pumping gas, a

truck with a trailer with lawnmower equipment pulled in a few feet from her door. Opitz

testified that she saw the truck as an opportunity to escape because there was something

between her and Sylvester. She testified that she “threw open the door and ran to the far

side of that trailer and truck so there was something between me and him, and I ran straight

into the door of the EZ Mart and I told him to the lock the door, that he had a gun and I

had been kidnaped.” Surveillance video from the EZ Mart was obtained, admitted into

evidence, and played for the jury. Opitz testified that the video accurately reflected what


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happened that day and also identified Sylvester. Finally, Opitz identified Sylvester at trial as

the perpetrator.

       Staples employee Jimmy Keith testified that he worked the register that day and that

he checked Opitz out with her products. Keith testified that the front of the store is all glass,

and he watched Opitz leave the store. He also testified that he saw a man in the parking lot

in a crouched position with something in his hand, a pipe possibly, that the man headed

toward Opitz’s car and rushed behind Opitz so Opitz could not see him. At this point, Keith

testified that he felt something suspicious was happening and called for his manager, Tad

Steffenson. Keith testified that he first thought the man was carrying a gun, and then he

decided it might be a pipe. Staples manager, Steffenson, testified that once he was

summoned, he ran out the front door, and the car was thirty feet away from him. He

testified that he saw Opitz in the passenger seat and gave her a thumbs-up sign and she shook

her head “No”and gave a thumbs-down sign. Steffenson said when he saw this he was

already calling 911 about a possible abduction and while on the phone with 911 gave her a

second thumbs-up sign and Opitz again responded in the negative and gave him a thumbs-

down sign.

       Sylvester was tried and convicted as recited above, and this appeal followed.

                                A. Sufficiency of the Evidence

       For his first point on appeal, Sylvester asserts that the circuit court erred in denying

his motions for directed verdict because the State provided insufficient evidence to find

Sylvester guilty of kidnapping, rape, or aggravated robbery. In reviewing a challenge to the


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sufficiency of the evidence, this court assesses the evidence in the light most favorable to the

State and considers only the evidence that supports the verdict. Tillman v. State, 364 Ark.

143, 217 S.W.3d 773 (2005). This court will affirm a judgment of conviction if substantial

evidence exists to support it. Id. Substantial evidence is evidence that 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.

       We begin our analysis by reviewing Sylvester’s motions for directed verdict. It is a

well-settled principle of appellate law that arguments not raised at trial will not be addressed

for the first time on appeal. Buford v. State, 368 Ark. 87, 243 S.W.3d 300 (2006); Hinkston v.

State, 340 Ark. 530, 10 S.W.3d 906 (2000). Likewise, parties cannot change the grounds for

an objection on appeal, but are bound by the scope and nature of their objections as

presented at trial. Id. Here, the record demonstrates that at trial, Sylvester based his motions

for directed verdicts exclusively on jurisdiction. Sylvester argued that for all three crimes, the

jury would be “left to guess whether the crimes occurred in Sebastian County” and solely

argued jurisdiction as a basis for his motions for directed verdicts. Therefore, at trial,

Sylvester did not challenge whether the State had proved the elements of the offenses as he

does now on appeal.

       At trial, with regard to the kidnapping, Sylvester made the following motion for

directed verdict:

       DEFENSE
       ATTORNEY:              Your Honor, we would move to dismiss the charge of
                              kidnapping. Your Honor, the basis of that charge would be lack
                              of jurisdiction for the Court. The basis of our motion, Your

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                           Honor, is in the Court section Statute 16-68 –

       THE COURT:          That is the same argument that we had [the] hearing on?

       DEFENSE
       ATTORNEY:           Yes, sir.

       THE COURT:          You are just wanting to renew it or do you want to restate it?

       DEFENSE
       ATTORNEY:           Yes, Your Honor, I don’t mind restating it, Your Honor. I
                           would also add, Your Honor, the additional things that we have
                           heard was we have had positive testimony that he was arrested
                           in Sevier County from Officer Gentry with the Police
                           Department. We heard Officer McWhirter say that he labeled
                           it as a kidnapping case. Your Honor, of course, that statute says
                           that jurisdiction may both lie in any county where someone is
                           abducted or taken, but then in Part (b), the controlling part is
                           that jurisdiction, it says the Court where the Defendant was
                           arrested shall try the case to the exclusion of all others. Your
                           Honor, we feel like that is a jurisdictional statute. The
                           Defendant, as I mentioned before, has a right to raise that. We
                           would ask for a directed verdict of acquittal on that charge on
                           that basis.

       Next, on the rape charge, Sylvester made the following motion for directed verdict:

       DEFENSE
       ATTORNEY:           Your Honor, we would move to dismiss the charge of rape.
                           Your Honor, the basis of our motion on that would also be lack
                           of jurisdiction. We feel like, Your Honor, that jurisdiction was
                           not established because there was testimony of actual or of any
                           kind - - of course, it would be up to the trier of fact. I heard
                           what you said about penetration, but we feel like the testimony
                           was also that that also occurred after they were on 71 highway.
                           We feel like the trier of fact would be left to speculate that that
                           happened in the Fort Smith District of Sebastian County. So, we
                           would move to dismiss the charge of rape for that reason.

       Finally, on the aggravated-robbery charge, Sylvester made the following motion for

directed verdict:

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       DEFENSE
       ATTORNEY:             Your Honor, we would move for a directed verdict of acquittal,
                             . . . on the aggravated robbery charge. Your Honor, the issue is
                             jurisdiction. We feel like there was positive evidence that there
                             was no jurisdiction in this case. Your Honor, we feel like that it
                             was said that it was sometime after they got on Highway 71, the
                             events as far as taking the money or things like that, that the
                             aggravated robbery would have occurred and we feel like the
                             trier of fact would be left to just guess that it happened in the
                             Fort Smith District of Sebastian County, Arkansas. So, we would
                             ask for a directed verdict on the aggravated robbery charge.

       Here, the record demonstrates that Sylvester made directed verdict motions on all

three charged offenses at trial. However, those motions were made based exclusively on

jurisdiction. On appeal, Sylvester has changed those grounds and argues that the kidnapping,

rape, and aggravated robbery convictions are all based on insufficient evidence and asserts that

the State failed to prove certain elements. Specifically, he argues that the elements of

kidnapping were not met because the State did not show that Opitz was restrained nor did

Sylvester substantially interfere with her liberty. Next, Sylvester argues that the rape was not

sufficiently proven because the State did not prove that the acts committed constitute deviant

sexual activity. Finally, he argues that the aggravated robbery was not sufficiently proven by

the State because the State did not prove theft; rather, the testimony was that Opitz made

an unsolicited offer of her purse and its contents, and the State did not prove that Sylvester

threatened Opitz to satisfy the elements of theft occurred. Sylvester also asserts that the State

failed to prove that a theft occurred as a result of a threat. However, because Sylvester has

changed his arguments on appeal and did not present these arguments to the circuit court,

they are not preserved for our review. Consequently, we do not reach Sylvester’s arguments


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regarding the sufficiency of the evidence and affirm the circuit court on this first point.

                                           B. Mistrial

       For his second point on appeal, Sylvester asserts that the circuit court erred when it

denied Sylvester’s motion for mistrial. Our standard of review for the appeal of an order

denying a mistrial is whether the circuit court abused its discretion. In determining whether

or not a circuit court abused its discretion in refusing to declare a mistrial, this court will

consider whether the prosecutor deliberately induced a prejudicial response and whether an

admonition to the jury could have cured any resulting prejudice. King v. State, 361 Ark. 402,

405, 206 S.W.3d 883, 885 (2005) (citations omitted). An admonition to the jury usually cures

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

by continuing the trial. Zachary v. State, 358 Ark. 174, 188 S.W.3d 917 (2004). See also

Burks v. State, 2009 Ark. 598, at 7, 359 S.W.3d 402, 407; Tarkington v. State, 313 Ark. 399,

402, 855 S.W.2d 306, 308 (1993).

       Sylvester asserts that a statement made by Arkansas State Police Special Investigator

Hayes McWhirter during his testimony constituted an improper comment on Sylvester’s

silence and amounted to Doyle violations, which requires our reversal. Doyle v. Ohio, 426

U.S. 610 (1976). Sylvester also asserts that a curative instruction would not have remedied

the prejudice he suffered and urges us to reverse the circuit court. In Doyle, the United

States Supreme Court held that the Due Process Clause bars the use for impeachment

purposes of a defendant’s post-arrest silence. See also Greer v. Miller, 483 U.S. 756, 763 (1987).

       At issue is the following colloquy that occurred during Investigator McWhirter’s


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testimony regarding Sylvester’s arrest and post-arrest interview:

       PROSECUTOR:          What happened in the interview?

       MCWHIRTER :          In the interview at first he asked me what he might be charged
                            with. I told him probably kidnapping, maybe some sexual
                            charges. He made the statement that he couldn’t do anything
                            sexual because he was driving. Then, I asked him, Tell me about
                            Fort Smith. And he said he went up to a car and pushed a
                            woman over and made her get in the passenger’s seat where he
                            could drive. I asked him if he had a gun and he stated that he
                            did.

       PROSECUTOR:          Did that conclude the interview?

       MCWHIRTER :          Then he asked for a lawyer.

       DEFENSE
       ATTORNEY:            Your Honor, could we approach?

       THE COURT:           Sure.

                                    (Conference at the bench).

       PROSECUTOR:          I told him not to say that, but I am not going any further into
                            that.


       DEFENSE
       ATTORNEY:            Your Honor, at this time the Defendant would move for a
                            mistrial based upon the last comment, was a violation of the
                            Defendant’s Miranda rights based upon the decision of Doyle
                            versus Ohio, Your Honor. The State is not allowed to in any
                            shape or form bring up the fact that he asked for a lawyer. We
                            feel like this is an extremely prejudicial comment and we move
                            for a mistrial.

       THE COURT:           I am going to deny it for the time being, but during the lunch
                            break, I want to look through that. I will let you know.

       DEFENSE
       ATTORNEY:            Yes, sir.

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                                  (End of bench conference).

      Later in the trial, the circuit court revisited the issue and again denied Sylvester’s

motion:

      THE COURT:           All right. Well, here was the exact question that was asked,
                           Question by [the Prosecutor], Did that conclude the interview?
                           Answer: “then he asked for a lawyer.”

                           So the answer or the response by the officer or the State Trooper
                           was not responsive to the question that was asked. Also, I think
                           it was or is this case is not similar to Doyle and there are several
                           cases. Two of the most recent ones, one is Stevenson v. State at
                           213 ARK 100, and the other is Holden v. State, that is an ‘86
                           case, it is 290 ARK 458. In both of those cases the State told the
                           jury in opening statements that the Defendant had invoked the
                           right to counsel. Then, the Arkansas Supreme Court said, [t]he
                           issue in Doyle was whether a State Prosecutor may seek to
                           impeach a Defendant’s exculpatory story told for the first time in
                           the trial by cross examining the Defendant about his failure to
                           have told the story after receiving his Miranda warnings. In
                           Holden the specific legal argument on appeal is that it was a
                           comment on the Defendant’s right to remain silent, which can
                           be prejudicial error. This Court stated that the legal issue to us is
                           whether this was a comment on the right of the Defendant to
                           remain silent or whether it was a prejudicial comment requiring
                           a mistrial. We concluded that the case was not exactly the same
                           as in Doyle. There was no direct reference by the State to the
                           Defendant’s silence or emphasis that the Defendant refused to
                           make a statement. It was not cross examination emphasizing the
                           Holden silence to the jury and unlike the situation in Doyle, in
                           the Stephenson case was not cross examined regarding the
                           assertion of the right to remain silent and there was no attempt
                           to impeach Stephenson’s account at the trial with the assertion
                           of his Miranda rights.

                           So, your motion will be denied. They do make reference in
                           some of the cases about a curative instruction. If you want me to
                           say something to the jury to disregard the fact that a trooper said
                           he asked for a lawyer . . . ?


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                             ....

       DEFENSE
       ATTORNEY:             We appreciate the Court offering to, but, Your Honor, we
                             would not ask for a curative instruction. . . . We feel like it could
                             never be cured by a limiting instruction. . . . So, Your Honor,
                             we will not ask for a limiting instruction.

       Here, we agree with the circuit court that there was not a comment or question by the

prosecutor regarding Sylvester’s post-arrest silence. Instead, the witness’s comment that

Sylvester “asked for a lawyer” was not responsive to the question asked and did not directly

refer to Sylvester’s post-arrest silence. Additionally, the prosecutor did not comment on

Sylvester’s post-arrest silence in his argument to the jury. When a comment on a defendant’s

post-arrest silence is not an attempt to impeach the defendant, it is not the type of comment

prohibited by the Court in Doyle. Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996);

Davis v. State, 345 Ark. 161, 176, 44 S.W.3d 726, 735 (2001). Therefore, the statement did

not amount to a Doyle violation. Greer, 483 U.S. 756. Further, Sylvester refused a curative

instruction to the jury. When the possible prejudice could have been cured by an admonition

to the jury, this court has found no abuse of discretion when defense counsel has refused the

circuit court’s offer of such a curative instruction. Ferguson v. State, 343 Ark. 159, 33 S.W.3d

115 (2000). Accordingly, we do not find error and affirm the circuit court.

       Affirmed.

       Victor D. “Trey” Wright III, for appellant.

       Leslie Rutledge, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.




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