JONATHAN RYAN HILL V. STATE OF ARKANSAS

Officer Eric Woodward of the Faulkner County Sheriff’s Office relayed the

following facts constituting probable cause in an affidavit signed on August 20, 2015.



According to Woodward, the Faulkner County Sheriff’s Office responded to a Damascus

residence in the early morning hours of July 10, 2015, for an alleged home invasion.

Deputy Brian Kesterson met the two residents, Cornenia “Cle” Dillard and Donna Salvo,

and performed a search of the premises. After discovering that the suspects had left the

residence, he interviewed Dillard and Salvo. Dillard stated that he was asleep on the living

room couch when a white male intruder woke him, held a knife against his throat, and

demanded money and pills. Dillard stated that he did not have those items but that Salvo

may have them. According to Dillard, the intruder proceeded toward Salvo’s bedroom, and

“a scuffle ensued.” Dillard grabbed a small .25-caliber pistol and went into the bedroom

where he saw the intruder holding a shotgun that had been stored in the bedroom. Dillard

stated that he fired at the intruder until his gun jammed but did not know if he had hit the

suspect. The intruder dropped the shotgun and exited the residence by jumping out the

bedroom window. Dillard then felt a pain in his back and turned around to discover that

an unknown white female had struck him. Dillard told the female that the male intruder

had left, and she exited the residence at that time. The deputy investigated the scene,

processed blood stains and personal effects, and found a spent shell casing in the bedroom

that matched the type of pistol that Dillard had fired.

Faulkner County police alerted surrounding law enforcement that a male suffering

from a gunshot wound might seek medical treatment at a nearby hospital. The Clinton

Police Department received a call and went to the hospital. There, the officers met Hill and

his girlfriend, Stacy Wright, who had driven him to the hospital and who initially gave the







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officers a fictitious name. Hill was transported to Conway Regional Hospital, and Wright

was transported to the detention center for multiple outstanding warrants. Salvo later

identified Hill as the intruder in a photograph lineup. Testimony revealed that Dillard had

passed away before trial.

On September 30, 2016, the State filed an amended felony information charging

Hill as a habitual offender with aggravated robbery, aggravated residential burglary, and

aggravated assault. Before trial, the State filed a motion in limine to exclude testimony

pursuant to Arkansas Rules of Evidence 404(a)(2) and 405. In its motion, the State

requested that the circuit court grant the motion to prevent the defense from calling

witnesses to provide testimony regarding specific instances of Dillard’s conduct. The circuit

court granted the motion.

On February 22, 2017, the circuit court held a jury trial. After the State’s case-in

chief, Hill moved for a directed verdict. The circuit court denied the motion and found

that the State had made a prima facie case on all three counts. After the defense presented

its case, Hill renewed his motion for directed verdict, and the circuit court again denied the

motion. The jury found Hill guilty of aggravated residential burglary and sentenced him to

a term of life imprisonment. The jury acquitted him of aggravated robbery and aggravated

assault. Hill timely filed a notice of appeal and now brings his appeal to this court.

II. Motion for Directed Verdict

For the first point on appeal, Hill argues that the circuit court erred in denying his

motion for directed verdict. Specifically, Hill contends that the State lacked substantial







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evidence to support the residential-burglary element of the aggravated-residential-burglary

offense, as set forth in Arkansas Code Annotated section 5-39-204 (Repl. 2013). He claims

that the State failed to prove that he illegally entered or remained in a dwelling. Hill does

not challenge the second element that he was armed with a deadly weapon or that he

inflicted or attempted to inflict death or serious physical injury upon another person.

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

Marshall v. State, 2017 Ark. 347, 532 S.W.3d 563. In a challenge to the sufficiency of the

evidence, this court considers only the evidence supporting the conviction in the light most

favorable to the State and determines whether the verdict is supported by substantial

evidence. Sweet v. State, 2011 Ark. 20, 370 S.W.3d 510. Substantial evidence is evidence

that is forceful enough to compel a conclusion beyond suspicion or conjecture. Id., 370

S.W.3d 510. Finally, the credibility of witnesses is an issue for the jury. Kinsey v. State, 2016

Ark. 393, 503 S.W.3d 772. 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., 503 S.W.3d 772.

Hill was convicted of aggravated residential burglary. A person commits aggravated

residential burglary if he or she commits residential burglary, as defined in section 5-39

201, of a residential occupiable structure occupied by any person, and he or she (1) is

armed with a deadly weapon or represents by word or conduct that he or she is armed with

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

another person. Ark. Code Ann. § 5-39-204(a). A person commits residential burglary if he







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or she enters or remains unlawfully in a residential occupiable structure of another person

with the purpose of committing in the structure any offense punishable by imprisonment.

Ark. Code Ann. § 5-39-201(a)(1). Serious physical injury is defined as a 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).

In the case at bar, Salvo testified at trial that she had been asleep in bed when she

heard her name and awoke. She saw Hill walk in the door, and he asked, “Where’s the

pills? Where’s the money?” According to Salvo, Hill grabbed her and threw her down.

When she “got up and went toward him,” Hill threw her on the bed, grabbed Dillard’s

twelve-gauge shotgun propped in the bedroom corner, pointed the gun at her, and pulled

the trigger. She heard the click, but the gun did not fire. Salvo stated that Dillard then

entered the room. Hill pointed the shotgun at Dillard, and Dillard fired a shot. Salvo said

that she heard two shots, but she did not know who had been shot. Salvo testified that Hill

pushed her backward and jumped out the window. She stated that she and Dillard went

into the living room, where she saw “a lady” who asked, “Is he still in there?” Salvo

responded, “No. Get out of here.” She then called the police.

Here, Salvo’s testimony provides substantial evidence to support Hill’s conviction.

Her testimony reveals that Hill entered and remained in the bedroom and demanded

money and pills. She testified that Hill picked up Dillard’s shotgun and pointed it at her.

According to Salvo, Hill pulled the trigger, and she heard a click. This testimony supports







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the elements of aggravated residential burglary because Hill (1) remained unlawfully in

Salvo’s bedroom with the purpose of committing an offense punishable by imprisonment

(2) while armed with a deadly weapon (3) attempting to inflict serious bodily harm on

Salvo. Thus, we hold that the circuit court did not err in denying Hill’s motion for directed

verdict.



III. Character and Reputation Evidence

For the second point on appeal, Hill argues that the circuit court erred in sustaining

the State’s objection to the admission of evidence from other witnesses about Dillard’s

character and reputation for engaging in sexual assaults. Hill asserts that this testimony

should have been admissible pursuant to Rule 401 and Rule 405 of the Arkansas Rules of

Evidence, because it was relevant to corroborate Wright’s testimony at trial.

During an in camera proceeding before trial, defense counsel stated that Hill’s

defense was that Dillard and Hill’s girlfriend, Wright, had a relationship during which she

periodically bought pills from him. Defense counsel claimed that he assaulted her the night

of the offense, and that Hill “heard her scream and went in.” Defense counsel sought to

admit the testimony of other women to show that Dillard “would use that [time] as an

opportunity to assault young women.” The circuit court stated, “I think Ms. Wright can

testify as to what she says occurred the night she went into the house. We’re not going to

bring all these other folks in here to testify about that.” The circuit court further ruled that







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Wright could testify about what had occurred the night of the offense and stated that Hill

could proffer the “other witnesses at some point during the proceedings today.”

At trial, testifying for the defense, Wright stated that she and Hill went to Dillard’s

residence to buy some pills on the night of the offense. She stated that she frequently

bought pills from Dillard and would often resell the pills and turn a profit. Wright

testified,

We were sitting on the couch and he kind of forced hisself [sic] over on me and started fondling like my crouch [sic] and my breast and I just started screaming and tell him get to off me [sic] and that’s when Johnny [Hill] come in and we—I— when Johnny [Hill] come to the right side where I was and Cle pulled a gun out and it was in my face and I run around the back side of the—over the couch, stepped along the couch and went around to the left side and he started firing the gun and Jonathan ran into the bedroom that was right there to the right and he kept firing the gun and I—I didn’t see Jonathan after that.



Defense counsel later proffered the testimony of two witnesses who allegedly would

corroborate Wright’s testimony. Defense counsel stated,

Your Honor, the defense would have called Megan Schwartz. If called to testify, she would testify that within a month or two before this event happened, she also would seek Cle Dillard to buy drugs and that the last time she went out there to his house he also sexually accosted her in exchange for the drugs rather than money and that she was able to get away from him herself but she used mace to spray him and ran from him through the front door and ran and got in the car with a friend waiting on her and got away. We would proffer that as evidence of corroboration of what happened out there that evening. . . . .



Oh, and we would have also proffered the testimony of Amanda West who would have testified similar to Megan Schwartz. She would have testified that she knew Cle Dillard and also knew of his reputation as being a drug dealer and a lecherous old man who attacked women and—and knew a woman who lived out there with him, that she went out there one time to see this woman who lived there and [the] way Mr. Dillard treated her and what their relationship was for pills.







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So we would have had those two witnesses to testify and corroborate the story.



At that time, the circuit court stated, “All right, sir. Thank you very much. We’ve

concluded the proffer and we will stand in recess until the jury returns with their verdict.”

Evidence of other crimes, wrongs, or acts are admissible for proof of motive,

opportunity, intent, preparation, knowledge, identity, or absence of mistake or accident.

Ark. R. Evid. 404(b). Specific instances of conduct are admissible only when the character

or a trait of character of a person is an essential element of a charge, claim, or defense. Ark.

R. Evid. 405(b). Here, any proffered witness testimony alleging that Dillard acted in

conformity with his alleged reputation of trading sex for drugs is barred by Rule 404(b).

Additionally, the evidence is barred by Rule 405(b). Although the proffered witness

testimony would have provided evidence of specific instances of conduct to show the

reason that Hill entered the home, it would not have provided specific instances to show

the reason that Hill entered or remained unlawfully in Salvo’s bedroom. Thus, this

proffered witness testimony would not have supported an essential element of the

aggravated-residential-burglary charge or his general-denial defense. For these reasons, we

hold that the circuit court did not abuse its discretion in refusing to allow this witness

testimony.

IV. Cell Phone

For the third point on appeal, Hill contends that the circuit court abused its

discretion in admitting several text messages from his cell phone. He also contends that the







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circuit court erred in admitting testimony concerning the meaning of certain phrases

contained in the text messages.

Rule 401 of the Arkansas Rules of Evidence defines relevant evidence as “evidence

having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.” Arkansas Rule of Evidence 402 provides that “[e]vidence which is not relevant is

not admissible.” Relevant evidence “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice.” Ark. R. Evid. 403.

At trial, the circuit court admitted some of Hill’s text messages during the testimony

of Billy Don Kennedy, a narcotics investigator. The text messages included the following:

“I’m going to pull a Jack move tonight for about 90 roxy 30’s and close to 60 K-4’s.”



“Can’t talk right now . . . I’m creepen through the woods . . . I’ll hit you up when I’m thrue with this ok I LOVE YOU BABY AND I’M MISSING YOU LIKE CRAZY!!!!!!!!!!”



“Ok baby I will . . . I promise you!!! I’m gonna be ok so don’t worry . . . but if something does ever happen to me just KNOW and REMEMBER forever that you have my heart and ALWAYS have from day one and that I was ALWAYS on your side and willing to do anything for you . . . because I love you so much!!!!



“I went to pay sale tax on my car. . . I thought it was $590. . . . WRONG!! More like $1017. . . I went off and walked out n went straight to dealership and got a extension. . . gonna try to get the contract restructured and include the sale tax in my monthly payments????



“I’m sorry baby my phone been dead and I just got home. . . I feel bad after reading your message!!! I’ve missed you like crazy all day. . . I had to drive out of town to go pick up another pair of skates so I’m straight now!!! I hope to see you







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again soon?? I’ve got to hustle hard these next two weeks and save $1117 to pay taxes and at least $850 more to keep my business afloat!!!!!



The circuit court ruled that these text messages

are up to and including the time of the event which gave rise to these charges. They reference jack moves and roxy’s and things—and all conclude about the time of the event that gave rise to these charges. I think that [the text messages] are relevant and will be admittable [sic] at this point.



Here, the circuit court ruled that the text messages were admissible because they

were close in time to the offense, and they corroborated Salvo’s testimony that Hill entered

the premises and demanded pills and money, thereby establishing his motive for the crime.

We agree with the circuit court’s conclusion that the text messages were relevant for

purposes of corroborating the victim’s testimony and were close in time to the offense.

Accordingly, we hold that the circuit court did not abuse its discretion in admitting these

text messages from Hill’s cell phone.

Further, Hill argues that Investigator Kennedy lacked the expertise to comment on

the meaning of the slang terms for the drugs listed in the text messages. The officer

testified that “roxy 30’s” and “K-4’s” referred to opioid-based narcotics. He testified that a

“jack move” meant “to steal something or to rob something.” He also testified that

“creepen” meant “sneaking or creeping around about to maybe to do a jack move on

somebody.” At trial, Hill objected that the officer’s testimony was purely speculative, and

the circuit court ruled that the police officer had “indicated some measure of experience

with this, and I’m going to allow him to testify.”







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Arkansas Rule of Evidence Rule 701 permits opinion testimony of a lay witness

when the opinions are rationally based on the perception of the witness and are helpful to

a clear understanding of the witness’s testimony or the determination of a fact in issue. See

Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990). Rule 701 is not a rule against

opinions but is a rule that conditionally favors them. Moore v. State, 323 Ark. 529, 915

S.W.2d 284 (1996).

Here, Investigator Kennedy’s testimony meets the requirements of Rule 701. We

cannot say that the circuit court abused its discretion in allowing the officer to give his lay

opinion testimony about the drug terminology in Hill’s text messages because the circuit

court determined that the officer possessed some experience in that area. We affirm the

circuit court’s ruling.

V. Officer’s Statement

For the final point on appeal, Hill argues that the circuit court abused its discretion

in denying Hill an opportunity to cross-examine Officer Woodward with a prior

inconsistent statement. Woodward testified that he did not attempt to obtain a DNA

sample from the shotgun, yet he allegedly made a prior statement to Wright that police

officers had obtained DNA from the shotgun and that it would prove whether Hill had

handled the shotgun. Hill claims that he should have been allowed to cross-examine

Woodward with the prior inconsistent statement that he had obtained a DNA sample

from the shotgun. The State responds that the circuit court did not abuse its discretion by

limiting such impeachment evidence arising from the investigating officer’s efforts to







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induce an admission by a witness. The State also contends that Hill cannot show prejudice

from such a limitation.

The relevant facts are as follows. At trial, on cross-examination, Woodward

admitted that he had not taken a DNA sample from the shotgun. Defense counsel stated,

“[T]hat’s not what you told Stacy Wright when you took her interview; is it?” The State

objected, and the circuit court sustained the objection. On redirect examination, the

officer testified that “DNA on the firearm is what we call touch DNA . . . . [I]t’s left behind

by skin cells, dead skin cells. That’s different from DNA that’s contained in blood.”

Woodward stated that, based on his experience, he had “very very little success with touch

DNA.” Defense counsel moved to impeach Woodward with a prior inconsistent statement

that the officer made to Wright during the investigation when he stated that officers had

obtained DNA on the shotgun. The circuit court denied Hill’s motion to use the prior

inconsistent statement to impeach the officer, stating, “I think that he’s testified he didn’t

find any of that. If [Wright] wants to try to testify to that, that’d be up [to] her, but we’re

not going to go into that with him.”







When Wright testified, she discussed her conversation with Woodward. During

direct examination, the following colloquy occurred:







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STATE: You responded to Detective Woodward on a question concerning DNA on the shotgun. Do you recall what that was?



WRIGHT: Yes.



STATE: And what was it?



WRIGHT: It was just, “Good. That’ll prove that there wasn’t—he wasn’t—had—that he didn’t have a gun.”

We conclude that Hill’s argument lacks merit. The jury heard Woodward’s alleged inconsistent statement through Wright’s testimony. This court has stated that a defendant cannot complain about receiving the relief he or she requested. See, e.g., Wyles v. State, 357 Ark. 530, 182 S.W.3d 142 (2004). For this reason, we affirm the circuit court’s ruling on this point.



VI. Rule 4-3(i)



In compliance with Arkansas Supreme Court Rule 4-3(i), the record has been

examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no prejudicial error has been found.



Affirmed.