Summary
noting that appellant's flight and attempt to evade police were proper considerations in determining guilt
Summary of this case from Guana-Lopez v. StateOpinion
CA CR 10-645
Opinion Delivered March 2, 2011
Appeal from the Crittenden County Circuit Court, [No. CR-2009-1371], Honorable Ralph Wilson, Jr., Judge, Affirmed.
Appellant Samuel Smith, Jr., was charged with one count of residential burglary, in violation of Arkansas Code Annotated section 5-39-201 (Supp. 2009), and he was convicted by a Crittenden County jury of the lesser-included offense of breaking or entering, a Class D felony, in violation of Arkansas Code Annotated section 5-39-202 (Supp. 2009). He was sentenced, as a habitual offender, to a term of fifteen years in the Arkansas Department of Correction and fined $10,000. He challenges the sufficiency of the evidence supporting his conviction. We affirm.
On October 5, 2009, appellant entered Brandon Gilliam's house without permission, rifled through the contents of the house, and was caught by Gilliam. He was arrested and charged with one count of residential burglary and with being a habitual criminal.
At the jury trial on March 10, 2010, appellant admitted to entering the structure. But he denied committing any crime, taking or destroying any property, or committing any crime that would have subjected him to imprisonment. At the close of the State's case, pursuant to Arkansas Rule of Criminal Procedure 33.1 (2010), appellant moved for a directed verdict. He renewed his motion for directed verdict at the close of his case, as well as at the close of all of the evidence. In these motions for directed verdict, appellant specifically asserted that the State failed to prove that the building he entered was a residential occupiable structure and also that he had the purpose to commit a crime. The circuit court denied appellant's motions for directed verdict, and he was convicted of breaking or entering and sentenced as previously set forth in a judgment and commitment order filed on March 10, 2010. He filed a timely notice of appeal on March 31, 2010, and this appeal followed.
A motion for directed verdict is a challenge to the sufficiency of the evidence. Reese v. State, 371 Ark. 1, 262 S.W.3d 604 (2007). In reviewing an appeal of the denial of a motion for directed verdict, the court views evidence in the light most favorable to the State and considers only the evidence that supports a guilty verdict. Jordan v. State, 356 Ark. 248, 147 S.W.3d 691 (2004). Whether direct or circumstantial, evidence is sufficient to support a conviction if it compels a conclusion and goes beyond mere suspicion and conjecture. Hall v. State, 361 Ark. 379, 206 S.W.3d 830 (2005). Convictions will be affirmed if there is substantial evidence to support them. Brown v. State, 2010 Ark. 420, ___ S.W.3d ___.
Appellant contends that, even viewing the evidence in the light most favorable to the State, the circuit court committed reversible error in denying his motions for directed verdict. While it is undisputed that appellant went into Gilliam's structure, he initially raises the question of whether the State proved that he entered an "occupiable structure." Testimony was put forth by Gilliam that the utilities at the structure had been turned off for quite some time, and appellant introduced an exhibit that established the cut-off date for the utilities at December 2008, some ten months before the October 5, 2009 incident. Further, appellant notes that Gilliam testified that he only kept some clothing in the structure but was staying with his grandmother at her home and only came by this structure every other day to check on it. He contends that this evidence demonstrated that the structure simply was a structure and not "occupiable" as required by Arkansas Code Annotated section 5-39-201.
Next, appellant contends that the State failed to meet its burden of proof with respect to whether he had the purpose to commit a crime. Pursuant to section 5-39-201, residential burglary establishes that crime as "any offense punishable by imprisonment." Appellant submits that the State tried to prove that this requirement was met by either a theft or possession of a controlled substance. He argues that there was insufficient evidence put forth on either of those charges, even viewing the evidence in the light most favorable to the State. Gilliam testified about missing a bike and shoes, but he acknowledged that appellant did not leave with the bike nor was he wearing the shoes. Therefore, appellant contends that the offense of theft simply does not apply.
As to the offense of possession of a controlled substance, appellant also maintains that there was insufficient evidence. Gilliam testified that when he saw appellant, "he was blowing some kind of smoke out of his mouth, it has a funny smell[;] I think it was dope." Appellant denied such activity, but notes that even assuming Gilliam did see what he described in his testimony, he is not an expert who can testify as to what kind of smoke it was. Further, appellant suggests that with the structure having been boarded up for ten months without heat or air, the "funny smell" easily could have come from the structure itself.
Under Arkansas Code Annotated section 5-39-202(a)(1), breaking or entering requires proof that the defendant broke or entered into any building, structure, or vehicle with the purpose of committing a theft or felony. Appellant urges that the same rationale-as stated with regard to residential burglary also applies with respect to this charge. He maintains that there simply was not enough evidence put forth to establish either crime.
We disagree. Although appellant argues that the evidence did not show he entered an "occupiable structure" as required for the original charge of residential burglary because the utilities had been turned off for several months, this argument is misplaced, because appellant was convicted of breaking or entering. A person may be convicted of breaking or entering as a lesser-included offense of burglary whether a building is occupiable or not. Julian v. State, 298 Ark. 302, 767 S.W.2d 300 (1989).
The State proved that on October 5, 2009, appellant entered Gilliam's house without permission, rifled through the contents of the house looking for items to take, and was caught by Gilliam. On that day, Gilliam had stopped by the house to check on things and when he pulled up he noticed that his front door, which he had closed the day before, was open. Gilliam entered the house, noticed that the couch pillows had been thrown on the floor and that drawers had been opened and clothes pulled out and thrown around the room. Additionally, he saw that a window had been broken in the back bedroom. While Gilliam was walking around assessing the situation, appellant came walking out of the bathroom. Gilliam had never seen appellant before that day.
Gilliam then went to the front door and asked his mother, who was waiting in the car, to call the police. Evidence also indicated that appellant ran out the front door, went around to the back of the house, and jumped over a gate to try to evade the responding officers.
Michael Butler, a neighbor of Gilliam's, was playing dominos and cards with several neighbors in a nearby vacant lot. Butler saw appellant run through the lot and then stop to kneel down beside Butler and a tree to catch his breath. Butler noticed that appellant had a jacket wrapped around his arm. Appellant told Butler and the others not to say anything to the police because they had seen him smoking crack behind a house. The police came by the lot looking for appellant, and Butler told them that appellant had just run around the corner. Butler pointed out the tree where appellant had stuffed his jacket. Butler subsequently learned that appellant had broken into a nearby house, and after learning which house had been broken into, he went by Gilliam's house, to give Gilliam appellant's name.
The existence of criminal intent or purpose is a question for the trier of fact when criminal intent may be reasonably inferred from the evidence. Kendrick v. State, 37 Ark. App. 95, 823 S.W.2d 931 (1992). Additionally, because intent cannot ordinarily be shown by facts and circumstances, the jury was allowed to draw upon its own experiences and common knowledge to infer that intent from the circumstances presented. See id. Here, the jury had the duty to weigh the credibility of the witnesses and determine the weight to be given their testimony. They determined that appellant's behavior evinced conduct that he entered Gilliam's house with the purpose to commit a theft or felony. Appellant was caught red-handed in Gilliam's house with the contents of the house thrown around and a broken window in the back of the house. Appellant ran away from the scene at the first opportunity, and Butler saw appellant running away carrying the jacket that was later recovered by the police. Moreover, appellant admitted being in Gilliam's house and having the jacket. Appellant's flight from the scene and overt act of hiding from the police may be considered in determining his guilt. Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002).
Contrary to appellant's claim that he simply entered the house to go to the restroom, we hold that the jury could reasonably conclude that he entered Gilliam's house for the purpose of committing a theft or felony. Sufficient evidence supports appellant's conviction; accordingly, we affirm.
Affirmed.
VAUGHT, C.J., and MARTIN, J., agree.