                                 Cite as 2014 Ark. App. 660

                  ARKANSAS COURT OF APPEALS
                                        DIVISION III
                                       No. CR-14-160


JOEL RAYMOND RODRIGUEZ                             Opinion Delivered   November 19, 2014

                                APPELLANT          APPEAL FROM THE SALINE
                                                   COUNTY CIRCUIT COURT
V.                                                 [NO. 63 CR-12-471]

STATE OF ARKANSAS                                  HONORABLE GARY ARNOLD,
                                                   JUDGE
                                  APPELLEE
                                                   AFFIRMED


                               DAVID M. GLOVER, Judge


          Joel Raymond Rodriguez was tried by a jury and found guilty of the offenses of

aggravated assault, first-degree terroristic threatening, and second-degree domestic battering.

He was sentenced to 600 months in the Arkansas Department of Correction. Rodriguez

raises five points of appeal: 1) he was prejudiced when the trial court abused its discretion by

allowing a witness to read a text message into evidence to refresh her recollection; 2) the trial

court erred when it allowed the introduction of an inflammatory text message into evidence;

3) the trial court erred in denying his motion for mistrial based on a juror’s knowledge that

the appellant was in custody; 4) the trial court erred in denying his motion to dismiss charges;

and 5) the trial court erred in denying his motion for directed verdict and new trial. We

affirm.
                                 Cite as 2014 Ark. App. 660

                                          Background

       The charges against Rodriguez arose from an encounter between him and his

girlfriend, Hannah Logan, on the night of August 8–9, 2012. Hannah testified that on the

evening of August 8, 2012, she picked up Rodriguez from his parents’ house and that they

went several places. She said that after Rodriguez left his friend’s house (she stayed in the

car), his demeanor changed dramatically; that he was usually happy and kind hearted, but that

he became very angry. She testified that she drove to her mother’s house because her car was

overheating, and she needed to put water in it. She said that she went into the house alone,

but that Rodriguez subsequently burst into the house and cursed her; that they shoved each

other; that he grabbed her throat; that he was “enraged”; and that she thought she was going

to black out. She said that she threw a glass of water she had in her hand and hit him with

the cast on her arm; that he was bleeding from his “mouth area”; and that he then pushed her

face-down on the kitchen floor and collapsed on top of her. She testified that she felt a hard

blow on her head; that she thought he hit her with a gun; that he then put the gun in her

mouth; and that she did not see him pull the trigger, but she heard “clanging/clicking” on her

teeth. She stated that they wrestled around on the floor; that he released her for a second; that

she started cursing him, and he held her in a head-lock; that they made their way to her

daughter’s room; that he said, “Bitch, you don’t think I’ll kill you”; and that she thought it

was very possible he was going to kill her.

       She said the gun was a semi-automatic pistol. She thought the gun was loaded, but

Rodriguez didn’t make any actions that led her to believe that it was. She said that they had


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both been drinking a little bit, and they had both taken a Xanax, but that Rodriguez did not

appear to be intoxicated and she was not either. She said that this series of events in her

mother’s house, who was out of town, lasted about fifteen to twenty minutes and took place

a little before midnight. Rodriguez left in her car (she gave him her keys); she cleaned herself

and the house up; she left and went to her brother’s house and then her mom’s friend’s house;

and she called the police about two hours after the incident. She also called Rodriguez

because she wanted her car back.

       Hannah further testified that she and Rodriguez “texted” each other, prompting a long

bench conference concerning Hannah being able to “refresh her memory” concerning a text

she testified she received from Rodriguez and other texts that she had sent to him but that had

been erased. The trial court allowed her to read the text message to the jury. She also stated

that it was the last communication she had with Rodriguez and that she forwarded it to Tony

Baugh, a detective who interviewed her the next day.

       Hannah explained that Detective Baugh accompanied her in returning to her mother’s

house (who was still out of town); that she noticed a beer can in the yard, which was unusual;

and that normally the front door is left unlocked and the back door locked, but it was just the

opposite when they returned to the house. She got her car back. It was found a couple of

miles from where Rodriguez’s cousins and nieces lived. She identified several photo exhibits

showing her injuries.

       On cross-examination, Hannah repeated that, normally, Rodriguez was a happy, kind-

hearted person; that she had known him for two years; and that their relationship was not


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usually mentally or physically abusive. She stated that she gave Rodriguez the keys to her car

and told him to leave; that she had deleted the texts other than the one she read to the jury;

and that some of those deleted texts were from her and contained “heinous” language of her

own. She corrected some of her statements to the police; stated that she did not want to be

there testifying; and acknowledged that she was the one who brought the Xanax on the night

of the incident.

                                           Discussion

       We first address a portion of Rodriguez’s final point of appeal because it challenges the

sufficiency of the evidence supporting his convictions for second-degree domestic battering,

aggravated assault, and first-degree terroristic threatening.

       An appellant’s right to freedom from double jeopardy requires us to review the

sufficiency of the evidence before we review any asserted trial errors. Foshee v. State, 2014

Ark. App. 315. The test for determining the sufficiency of the evidence is whether the

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

sufficiency of the evidence, we view it in a light most favorable to the State and consider only

the evidence that supports the verdict. Id.

       In addressing Rodriguez’s sufficiency challenges, we must first determine if the

arguments were properly preserved for our review. In order to understand why his challenges

to the aggravated-assault and second-degree-domestic-battering charges were not properly

preserved, it is necessary to put the arguments raised below in context.




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       Here, by amended information, Rodriguez was charged as a habitual offender with the

offenses of attempted capital murder (two counts), terroristic threatening, aggravated assault,

and intimidating a witness; however, the State proceeded to trial on the attempted-capital-

murder counts and terroristic threatening only, nolle prossing the remaining charges. After

the State rested its case in chief, Rodriguez challenged the sufficiency of the evidence

supporting both counts of attempted capital murder and terroristic threatening, but his

“motion to dismiss” was denied. Before Rodriguez began presenting his case, the State

amended the charges against him to two counts of aggravated assault, second-degree domestic

battering, and first-degree terroristic threatening.       Rodriguez did not object to the

amendments. He then presented his case, and at the close of the evidence, he moved for a

directed verdict on the charges of second-degree domestic battering, aggravated assault, and

first-degree terroristic threatening. The motion was denied.

       In this rather unusual setting, it is clear that after the State rested its case, Rodriguez

challenged the sufficiency of the evidence to the two original counts of attempted capital

murder and terroristic threatening, but, once the charges were amended and before he

presented his case, he did not challenge the amended charges of aggravated assault and second-

degree domestic battering.

       Rule 33.1 of the Arkansas Rules of Criminal Procedure provides in pertinent part:

              (a) In a jury trial, if a motion for directed verdict is to be made, it shall be made
       at the close of the evidence offered by the prosecution and at the close of all of the
       evidence. A motion for directed verdict shall state the specific grounds therefor.
                                                ....



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              (c) The failure of a defendant to challenge the sufficiency of the evidence at the
       times and in the manner required in subsection (a) . . . will constitute a waiver of any
       question pertaining to the sufficiency of the evidence to support the verdict or
       judgment.

Because there was no objection to the amendment of the charges, and Rodriguez did not

challenge the sufficiency of the evidence supporting his convictions for aggravated assault and

second-degree domestic battering after the State closed its case in chief and before he

presented his own case, his challenges to those convictions were not preserved for our review.

       Moreover, with respect to the first-degree-terroristic-threatening charge, the

sufficiency argument made at trial focused more on rehashing evidentiary matters concerning

the text message, which will be discussed infra, rather than arguing specifically why the

evidence that was presented was not sufficient to support the charge. Even so, at the time of

these events, a person committed first-degree terroristic threatening if, “with the purpose of

terrorizing another person, the person threatens to cause death or serious physical injury or

substantial property damage to another person[.]” Ark. Code Ann. § 5-13-301(a)(1)(A). The

text message that Hannah read to the jury, which she testified was from Rodriguez,

contained, for example, statements of “doing a 187 on you,” which she explained stands for

homicide; “[c]hopping” up her parents’ house with bullets; and knocking her teeth out.

Viewing the evidence in the light most favorable to the State, we hold that there was

substantial evidence to support the conviction for first-degree terroristic threatening.

       Returning to the points of appeal in the order that they were raised, Rodriguez’s next

two points contend that he was prejudiced when the trial court abused its discretion by

allowing Hannah to read the text message into evidence to refresh her recollection and that

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the trial court erred when it allowed the inflammatory text message to be introduced into

evidence. For ease of discussion, we address these two points together because they both deal

with the same text message, and many of the arguments overlap. We review a trial court’s

decision to admit or exclude evidence for an abuse of discretion. Holmes v. State, 2014 Ark.

App. 502, 441 S.W.3d 916. We find no basis for reversal concerning either point. We do

agree with the State, however, that the more appropriate basis for allowing the text message

was as an admission by a party opponent pursuant to Rule 801(d)(2) of the Arkansas Rules

of Evidence, rather than to refresh Hannah’s memory. See Neal v. State, 375 Ark. 389, 291

S.W.3d 160 (2009) (affirming where trial court reached the correct result, even if for a

different reason).

       Rule 801(d)(2) provides:

               (d) Statements Which Are Not Hearsay. A statement is not hearsay if:

               ....

              (2) Admission By Party-opponent. The statement is offered against a party and is (i)
       his own statement, in either his individual or a representative capacity, (ii) a statement of
       which he has manifested his adoption or belief in its truth, (iii) a statement by a person
       authorized by him to make a statement concerning the subject, (iv) a statement by his
       agent or servant concerning a matter within the scope of his agency or employment,
       made during the existence of the relationship, or (v) a statement by a coconspirator of
       a party during the course and in furtherance of the conspiracy.

(Emphasis added.) Rodriguez’s text message constitutes a party admission.

       In his reply brief, Rodriguez argues that Rule 801(d)(2) is not applicable because the

text message “was not being offered against the Appellant.” He seems to mean that because

it was read to the jury, instead of the writing marked as State’s Exhibit 1 being introduced


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into evidence, that it was not “offered” against him. We consider that to be a distinction

without a difference under the circumstances of this case. Rodriguez’s text message was read

to the jury by Hannah and thereby offered against him, even though the writing itself was

inexplicably never provided to the jury and made part of the record.

       Rodriguez further contends that because the text message was not offered under

801(d)(2) at trial, he did not have the “opportunity to be heard on the authentication prong,”

and that it would be inappropriate for this court to analyze it under 801(d)(2). We disagree.

Even though the discussion at trial focused on evidentiary rules other than 801(d)(2), it was

always clear that the State took the position that the text was from Rodriguez. Hannah

testified that the text was from Rodriguez, and Rodriguez offered no evidence disputing that

assertion. Thus, even under the other evidentiary rules, authenticity was still at issue, and

Rodriguez did not challenge the authenticity of the text.

       Attempting a further demonstration of abused discretion, Rodriguez argues that he is

a Hispanic male and the text contained racially derogatory comments about Hannah, a white

female, and was read by her to a predominantly white jury. The argument was not developed

below and therefore not preserved for our review. He also argues that the text was prejudicial

because it was taken out of context and presented only one side of a two-sided conversation.

In making the argument, he relies upon Rule 106 of the Arkansas Rules of Evidence, which

provides:

               Whenever a writing or recorded statement or part thereof is introduced by a
       party, an adverse party may require him at that time to introduce any other part or any
       other writing or recorded statement which in fairness ought to be considered
       contemporaneously with it.

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The rule is designed to allow the presentation of recorded or written statements in context,

so as to avoid misleading the jury. Here, however, the trial court questioned Hannah about

the existence of other text messages with Rodriguez. She explained that she had deleted

them—that they no longer existed—and acknowledged that she, too, had said some

“heinous” things and that the texts were written by both of them in anger. The trial court

told Rodriguez that in the absence of the other texts, he would have to handle the situation

by cross-examination. There is no indication that the State played any role in the deletions,

and Rodriguez abandons any discovery-violation arguments. Rodriguez had the same access

to all of the texts between him and Hannah, and the text that was read to the jury was the sole

text that Hannah provided to the police and that helped form the basis for the charge of

terroristic threatening. As much context as possible was provided to the jury in light of the

fact that the other texts were deleted, and we find no abuse of the trial court’s discretion in

this respect.

       Rodriguez next makes a glancing argument that because the text also contained

derogatory comments directed toward a man named Barney, Hannah’s friend, it constituted

evidence of other bad acts that were not relevant and were prejudicial. We disagree because

the comments directed toward Barney also supported the charge of terroristic threatening.

       Rodriguez further argues that the State violated discovery rules by not providing him

with a text message in Spanish from his own mother to Hannah. As noted by the State, the

text was never mentioned to the jury nor introduced at trial. In a bench conference on the

issue, the prosecutor explained that she did not plan to use it unless the mother testified and


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then it would be used as rebuttal—not as part of the State’s case in chief. It never happened.

Moreover, the State informed the trial court at the bench conference that there was nothing

exculpatory in the text, and if anything it was inculpatory addressing the injuries sustained by

Hannah. Rodriguez never asked the trial court to review the text itself and make its own

determination, and Rodriguez never sought to have the text proffered, so there is nothing for

this court to be able to review. He counters that because the mother’s text was never provided

to him, there was no way he could proffer it. We disagree. He could have sought an in

camera determination from the trial court with the text proffered under cover. Moreover,

we fail to see how Rodriguez was prejudiced because his mother’s text was never used at trial.

       Finally, Rodriguez argues that the photograph of the text was not the best evidence

of its contents. We disagree. The State presented an AT&T representative, who testified that

the company does not keep records of the content of text messages. Hannah explained that

the texts had been deleted from her phone, and that the photograph of the text accurately

reflected the text message she received from Rodriguez. Under these circumstances, the

photograph of the text was all there was, and Rodriguez had the opportunity to cross-

examine Hannah about it.

       Rodriguez next contends that the trial court erred in denying his motion for a mistrial

based on the fact that, after trial, it was learned that a juror had seen him accompanied by an

officer outside the courthouse. We disagree.

       A mistrial is a drastic remedy, and it is proper only where the error is beyond repair

and cannot be corrected by any other curative relief. Banks v. State, 315 Ark. 666, 869


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S.W.2d 700 (1994). The trial court has wide discretion in granting or denying a motion for

mistrial, and its decision will not be disturbed except where there is an abuse of discretion or

manifest prejudice to the complaining party. Id. Restraints are not per se prejudicial, and the

defendant must affirmatively demonstrate prejudice. Williams v. State, 347 Ark. 728, 67

S.W.3d 548 (2002). We will not presume prejudice when there is nothing in the record to

indicate what impression may have been made on the jurors or where the appellant did not

offer any proof of prejudice. Id.

        Here, there is not even a contention that Rodriguez was seen in restraints. Rather,

after the verdicts were returned but before Rodriguez was sentenced, his counsel learned that

one juror had seen Rodriguez being escorted into the courthouse by sheriff’s deputies, and

he also argued that there had been other instances where it was obvious that Rodriguez was

in custody by the officers’ proximity to him. The trial court conducted an in-chambers

examination of the juror, asking about her observations. She acknowledged that she had seen

him walking with the officers as she sat in her car that morning. She stated that she just

assumed it was standard procedure. Defense counsel was allowed to question the juror, but

he did not pursue inquiries about possible prejudice. We find no abuse of the trial court’s

discretion in denying Rodriguez’s motion for a mistrial under the circumstances presented

here.

        Rodriguez next contends that the trial court erred in denying his motion to dismiss

the charges because his rights against double jeopardy were violated when the trial court did

not dismiss the charge of second-degree domestic battering. He seeks retrial on one count


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of aggravated assault only. The basis of his argument is his contention that he was engaged

in a continuous course of conduct, not separate offenses, and should not have been tried on

separate offenses. That is, he contends that only one aggravated assault occurred because the

acts all took place during the same episode. We disagree.

       The doctrine against double jeopardy protects defendants from receiving multiple

punishments for the same offense. Dilday v. State, 369 Ark. 1, 250 S.W.3d 217 (2007).

Arkansas Code Annotated section 5-1-110(a)(5) provides in pertinent part:

             (a) When the same conduct of a defendant may establish the commission of
       more than one (1) offense, the defendant may be prosecuted for each such offense.
       However, the defendant may not be convicted of more than one (1) offense if:

                                             ....

             (5) The conduct constitutes an offense defined as a continuing course of
       conduct and the defendant’s course of conduct was uninterrupted, unless the law
       provides that a specific period of the course of conduct constitutes a separate offense.

A continuing offense is a continuous act or series of acts that are begun by a single impulse

and operated by an unintermittent force, and the test to determine whether a continuing

offense is involved is whether either the individual acts or the course of action that they

constitute are prohibited. Halpaine v. State, 2011 Ark. 517, 385 S.W.3d 838. If it is the

individual acts that are prohibited, then each act is punishable separately. Id. If it is the

course of action that is prohibited, then there can be only one penalty. Id. Where there is

a single impulse, only one charge lies, but if there are separate impulses, separate charges lie

even if all are part of a common stream of action. Id.




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       At trial, in defending against the motion to dismiss, the trial court asked the prosecutor

to identify the acts constituting two aggravated assaults and the second-degree domestic

battering. The prosecutor explained that there were actually three aggravated assaults:

putting the gun in Hannah’s mouth, putting the gun to the back of Hannah’s head, and

choking her, thereby restricting the air she could breathe. With respect to domestic

battering, the prosecutor identified the injuries Hannah suffered from Rodriguez hitting her

on her head with the gun while they were in a dating relationship. We agree that these are

separate acts resulting from separate impulses, even though they happened during the same

criminal episode. They constituted separate and distinct acts and the trial court did not err

in denying the motion to dismiss.

       We addressed the first portion of Rodriguez’s final point of appeal, which challenged

the sufficiency of the evidence supporting his convictions, at the outset of this opinion. In

the remaining part of his final point, he contends that the trial court erred in denying his

motion for new trial, which was filed after his trial and was based on his positions that the

trial court erred in admitting the text message, erred in failing to grant a mistrial, and erred

in refusing to dismiss charges because he was overcharged by the State. All of these

arguments were raised and addressed in earlier points, and we found no merit in them. It is

not necessary to address those arguments again here.

       Affirmed.
       VAUGHT and WOOD, JJ., agree.
       Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., for appellant.
       Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.



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