Rose v. State

2015 Ark. App. 563

ARI(ANSAS COURT OF APPEALS
DIVISION II
No. CR-15-712

LORI ROSE opinion Delivered October 7, 2075
APPELLANT
APPEAL FROM THE POLK
COUNTY CIRCUIT COURT
lNo. cR-2013-1s81

STATE OF ARKANSAS HONORABLE J.W. LOONEY, JUDGE
APPELLEE

AFFIRMED

CLIFF HOOFMAN, Judge

After a jury trial, appellant Lori Rose was convicted ofaggravated residential burglary,

second-degree domestic battery, aggrevated assault, and terroristic threatening. She was

sentenced to a total of thirty-six years' imprisonment. On appeal, Rose argues that the trial

court erred by denying her motion for directed verdict on the charge ofaggravated residential

'We
burglary. affirm.

At trial, the victim, Billy Vaught, testified that he and Rose were in a romantic

relationship for approximately two years until they broke up on November 79,2073. On the

evening of November 21.,2013, Vaught stated that Rose's teenage daughter, April, phoned

him and asked him to come stay at her home because she was scared and had not been able

to reach her mother. Vaught testified that after he unsuccessfully attempted to contact Rose,

he went to her home, spoke with April, and then slept on the couch. Rose arrived home at

approximately 3:00 a.m. and went to sleep in her room, while Vaught remained on the
2015 Ark. App. 563

couch. He agreed to take April to school the next moming because Rose had to be at work

early. At 6:45 a.m., after Rose had left for work, Vaught stated that he received a text from

her, telling him to get out of her house. He stated that he did not think this was strange, as

they had been texting back and forth earlier that week and Rose had mentioned that he had

no reason to be at her home going forward. He then collected his belongings and left the

home. Vaught denied that he hacl acted inanpronriate'lv toward April that morning. as Rose

later claimed.

The next evening, November 22,2073, Vaught testified that he went to bed early.

He woke up around midnight when Rose entered his bedroom and turned the light on. He

stated that she had a rifle that he had previously loaned to her pointed at his upper body. He

testified that Rose told him not to move and "to prepare to die, Billy Vaught." Vaught asked

her what she was talking about, and she told him that he had hurt her daughter. He denied

hurring her and told Rose to call the police and let them handle the situation. She replied,

"No, they told me to just shoot your ass." Vaught stated that he could tell that the hammer

on the rifle had been cocked and that Rose had been drinking, so he kicked the gun with his

left leg. The rifle went offand shot Vaught in the right leg just below the knee. He briefly

struggled with Rose and retrieved the gun, then called his sister, who drove him to the

hospital. Rose left before Vaught's sister arrived.

Vaught testified that the gunshot broke his kneecap and femur bone and that he had

to have knee-replacement surgery. Vaught admitted that he had initially claimed the shooting

was an accident, explaining that he did not want to cause problems for anyone else and that
2015 Ark. App. 563

he had a prior relationship with Rose. During their relationship, Vaught indicated that they

would frequently stay at each other's homes and that it was not necessary for them to have

an explicit invitation to do so. Vaught testified that he had not told Rose that she was no

longer welcome in his home prior to the shooting.

Chief Depury Scott Sawyer with the Polk Counry Sheriffs Department testified that

he snoke r-r-z!1[ \-/2usht
*-D--- at the hosoita! in the ea-rlv
'-"'!:i mornins
:!!"" '' o
horrrs of November 23.2013.

Although Vaught initially told him that the shooting was an accident, Sawyer stated that after

he told Vaught that was physically impossible, Vaught admitted that Rose had shot him.

Rose was taken into custody that night by Depury Seth Smith, and a statement was obtained

from her. In her first statement, a recording ofwhich was played for the jury, Rose admitted

that she had filed a police report against Vaught for alleged sexual abuse of her daughter, but

she denied that she had been to his home or that she had shot him that night. She instead

stated that she had been out drinking and had then gone home. Rose also claimed that she

and Vaught had been dating until the previous morning. Smith testified that Rose did not

appear to be highly intoxicated at the time he obtained her statement, although he could smell

alcohol on her.

The following day, on November 24,2073, Rose asked to give another statement to

police. In her second statement, which was also played at trial, Rose claimed that she was

scared and intoxicated and had not told the truth during her earlier interview. She admitted

that she had gone to Vaught's home around rnidnight on November 23. Rose stated that she

had been drinking at the Elk's Lodge and had been told by someone there that Vaught had

J
2015 Ark. App. 563

also acted inappropriately toward his son in the past. She indicated that she went to Vaught's

home, not with the purpose of confronting him, but instead with the intention of taking his

son home with her. She did not expect Vaught to be at home, but when she realized that he

was asleep in his bedroom, she testified that she grabbed the rifle sitting by the front door and

went to speak to him. Rose agreed that this was the rifle that Vaught had loaned to her, but

she claimed that she haC retumed it to his house after they had broken up earlier rn the week,

She stated that she grabbed it for protection, wanting only to intimidate Vaught and make

him apologize. Rose then walked into Vaught's bedroom, identified herself, and asked him

why he had hurt her daughter. She stated that the rifle was pointed toward the ground, not

at Vaught. Flowever, when he kicked it, the gun went off and shot him in the leg. She

indicated that they struggled over the gun until Vaught gained control of the weapon. She

handed him his cell phone to call for help and stated that Vaught then told her to leave. Rose

stated that she did not remember the details of her drive home.

Terry Plunkett, a mutual friend ofboth Rose and Vaught, testified that he saw Rose

on November 22, 201.3, and that he was aware of the allegations she had made against

Vaught. Plunkett stated that he received a text from Rose that morning indicating that she

had her gun "fully loaded," although he did not think that she was being serious. Plunkett

also saw Rose at the Elk's Lodge later that night, and he described her as being very

intoxicated. He wanted to drive her home, but she left before he could do so.

At the conclusion of the State's case, Rose moved for a directed verdict only on the

charge of aggravated residential burglary, arguing that there was insufficient proofthat she had
2015 Ark. App. 563

entered or remained in Vaught's residence unlawfully. The circuit court denied the motion.

At trial, Rose stated that she and Vaught had broken up on the Tuesday prior to the

shooting, although they had been involved in a serious relationship for the previous two years.

Rose stated that they had broken up on prior occasions and had gotten back together within

a couple of days; however, she indicated that this particular breakup stood out and that it
qeerrrerl !-hrt the.-, bsth r,r,rsnged to final!.-, mo\./e on- She testiGed that she had taken some of

his belongings, including the rifle, to his house on the day after their breakup and that he had

then texted her that she was always welcome in his home. Rose indicated that Vaught's

house was always unlocked. With regard to the details surrounding the shooting, Rose

testified in conformiry with her second statement to police. She stated that Vaught's door was

not locked and that she grabbed the rifle as a "bound^ry" between them because she "did not

know how he was going to react to [her] being in the house you know after what happened."

However, she testified that she "had every right to go in the house" and that no one had said

that she could not go in there.

After both sides had rested their case, Rose renewed her motion for directed verdict,

which was again denied by the circuit court. The jury found Rose guilry of all charges,

sentencing her to twenry-flour years' imprisonment for the aggravated-residential-burglary

conviction and three years on each of the remaining charges. In addition, Rose received a

rwelve-year sentence enhancement for each offense due to her use of a firearm. The circuit

couft ordered the three-year sentences to run consecutively to each other but concurrent to

the rwenfy-four-year sentence. The court also ran one rwelve-year sentence enhancement
2015 Ark. App. 563

consecutively to Rose's remaining sentences, while the other enhancements were to run

conculTently, for a total of thirry-six years' imprisonment. Rose filed a timely notice of

appeal from the sentencing order.

For her sole argument on appeal, Rose contends that the circuit court erred in denying

her motion for directed verdict on the charge of aggravated residential burglary. Specifically,

Rose ar€ir-res. a-s she dirl rn her rlirected-verdict motions at trial. that the evidence was

insufficient to support her conviction because the State failed to prove that she entered or

remained unlawfully in Vaught's home.

A motion for a directed verdict is a challenge to the sufticiency of the evidence.

Williams u. State,2010 Ark. App.759. On appeal from a denial of a motion for directed

verdict, the sufficiency ofthe evidence is tested to determine whether the verdict is supported

by substantial evidence, direct or circumstantial. Id. In determining whether there is
substantial evidence to support the verdict, this court reviews the evidence in the light most

favorable to the State and considers only that evidence which supports the verdict. Id.

Substantial evidence is that evidence which is of sufficient force and character to compel a

conclusion one way or the other beyond suspicion or conjecture. Id. The jury is free to

believe all or part of a witness's testimony, and we do not weigh the credibiliry of witnesses

on appeal, as that is a job for the fact-finder and not the appellate court. Young u. State,371

Ark. 393, 266 S.W.3d744 (2007).

A person commits the offense of residential burglary if he or she enters or remains

unlawfully in a residential occupiable structure of another person with the purpose of
2015 Ark. App. 563

committing in the residential occupiable structure any offense punishable by imprisonment.

Ark. Code Ann. $ 5-39-201,(a) (Repl. 2013). A person "enters or remains unlawfully" when

he or she does not have a license or a privilege to enter or remain upon the premises. Ark.

Code Ann. S 5-39-101(2)(A) (Repl. 2013). Furthermore, a person commits aggravated

residential burglary ifhe or she commits residential burglary as defined above and (1) is armed

';'ith a deadly.;,'eapon cr represents by...,,s1al or conduct that he or she is armecl rrnth a deadl,v

weapon; or (2) inflicts or attempts to inflict death or serious physical injury upon another

person. Ark. Code Ann. $ 5-39-204(a) (Repl. 2013).

Rose argues that she had a privilege or a license to enter Vaught's home during their

relationship and that, according to his testimony at trial, he never revoked this privilege or

license prior to the shooting. While Vaught did admit on cross-examination that he had

never explicitly told Rose that she was no longer welcome in his home after their breakup,

the State asserts that any privilege or license Rose had as Vaught's girlfriend was implicitly

revoked when that relationship ended and that no express revocation was necessary. Rose

admitted in her testimony that, even though they had broken up on previous occasions, this

time was different in that they both wanted to "move on." Although Rose testified that

Vaught had sent her a text stating that she was always welcome in his home, she did not

introduce this text message into evidence. As the State argues, the jury was not required to

believe her self-serving testimony, nor was it required to set aside its common sense and

experience in reaching a verdict. Dauis u. State, 325 Ark. 96, 925 S.W.2d 768 (1,996). As

such, the jury could have reasonably found from the evidence that Rose no longer had a
2015 Ark. App. 563

license or privilege to enter Vaught's home on the night of the shooting, especially late at

night when he was asleep. See Holt u. State,2011 Ark. 397,384 S.W.3d 498 (stating thar rhe

jury could have easily determined that the defendant's invitation to enrer his ex-girlfriend's

home was not so extensive as to include entry in the middle of the night while she was

asleep).

Furtherrnore, er.zen if Rose's initia! entry into Vaught's home $/as not considererl to

be unlawful, the residential-burglary statute also states that a person cannot remain in the

residence unlawfully. Ark. Code Ann. $ 5-39-201(a). In this regard, our supreme court has

held that a person's license or privilege to enter a home is revoked once that person inflicts

injury upon the owner. See, e,g., Holt u. State, supra (holding that even if the jury believed

the defendant's testimony that he had been invited to the victim's residence, he was not

privileged to remain there once he began telling the victim "I told you I could get in anytime

I wanted to" and "if I can't have you, no one car,," and stabbing her); Young u. State, supra

(holding that substantial evidence supported the defendant's conviction for residential burglary

where the defendant was licensed or privileged to enter the victim's residence but was

certainly not licensed or privileged to remain there after he began stabbing the owner and

removing his properry).

Here, the evidence showed that Rose entered Vaught's home while he was asleep,

grabbed a loaded rifle, and then pointed the gun at him, telling him not to move and to

"prepare to die." Vaught pleaded with Rose to call the police and was then shot in the leg

as he attempted to kick the gun away. After Vaught regained control of the gun, he phoned
2015 Ark. App. 563

for help and told Rose to leave. Under the circumstances in this case, there was substantial

evidence to support a finding by the jury that Rose unlawfully entered or remained in

Vaught's home, and we therefore affirm her conviction for aggravated residential burglary.

Affirmed.

GraowtN, CJ., and WHITEAKER, J., agree.

Witt Law Firm, P.C., by: Ernie Witt, for appellant.

Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't Att'y Gen., for appellee.

9