Opinion
CA CR 09-131
Opinion Delivered September 30, 2009
Appeal from the Pulaski County Circuit Court, [NO. CR 08-1692], Honorable Barry Sims, Judge, Affirmed.
A Pulaski County jury convicted Nickarlos Banks of felony robbery and misdemeanor theft, crimes that were committed on February 28, 2008. The misdemeanor conviction was merged into the felony conviction, and Banks was sentenced as a habitual offender to ten years' imprisonment in the Arkansas Department of Correction. On appeal he contends that the evidence was insufficient to show that he exercised physical force against the victim. He preserved this issue for our review by raising it in motions for directed verdict made at the conclusion of the State's case against him and at the close of all the evidence, motions which the trial court denied. We affirm the conviction.
A person commits Class B felony robbery if, "with the purpose of committing a felony or misdemeanor theft . . ., the person employs or threatens to immediately employ physical force upon another person." Ark. Code Ann. § 5-12-102(a) (Repl. 2006). "Physical force" is defined for the crime of robbery as bodily impact, restraint, or confinement; or the threat of bodily impact, restraint, or confinement. Ark. Code Ann. § 5-12-101 (Repl. 2006).
The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, either direct or circumstantial. Walley v. State, 353 Ark. 586, 594, 112 S.W.3d 349, 353 (2003). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id at 594, 112 S.W.3d at 353. When reviewing a challenge to the sufficiency of the evidence, the evidence is viewed in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id at 594, 112 S.W.3d at 353. The assessment of credibility and the weight of testimony are matters to be decided by the trier of fact rather than the reviewing court. Magana-Galdamez v. State, 104 Ark. App. 280, ___ S.W.3d ___ (2009). Furthermore, a jury is entitled to draw upon its common sense and experience in reaching its verdict. Walley, supra.
Toni White testified that Banks stopped her around 7:15 a.m. on February 28, 2008, as she approached the entrance to the school where she worked. White testified that after having a conversation in which they directly faced one another, she turned to go into the building and he turned as if to walk in the other direction. She stated that he grabbed her purse as she turned, when she was "kind of turned to the side"; that she did not notice any injury, markings, or bruising until a couple of days after the incident; and that she told a detective about her bruises when she identified Banks's picture on a photo spread on March 5, 2008. The police report of that date, also introduced into evidence at trial, included her hand-written statement, "He snatched my purse from my right arm causing pain and bruises to my hand and right arm."
Banks concedes that White's testimony shows that she sustained bruising as a consequence of his pulling her purse off her arm, but he argues that this evidence merely showed "purse snatching." He argues that the element of physical force was not proven because there was no proof of bodily impact, which our statute requires as an element of robbery. He asserts that the State did not introduce evidence of a struggle or fight, of more force than necessary to pull the purse from White's arm, or of his touching any part of her body or clothing.
Our supreme court has stated that the mere snatching of money or goods from the hand of another is not robbery "unless some injury is done to the person or there be some struggle for possession of the property prior to the actual taking or some force used in order to take it." Parker v. State, 258 Ark. 880, 885, 529 S.W.2d 860, 863 (1975). Here, there was evidence that Banks pulled White's purse from her arm after she turned away from him, that bruises on her hand and arm arose in a few days, and that she attributed her bruising to the incident. The jury could have concluded from this evidence that injury was done, that force was used in taking the purse, and that bodily impact occurred, meeting our statutory requirement of "physical force." See, e.g., Fairchild v. State, 269 Ark. 273, 275, 600 S.W.2d 16, 17 (1980) (holding that evidence showed "sufficient restraint and bodily impact to constitute physical force" where appellant demanded money from the victim, jerked open a door that she was holding, cornered her in a back hallway, and grabbed her dress); Turner v. State, 270 Ark. 969, 606 S.W.2d 762 (1980) (holding that there was substantial evidence to find that appellant restrained the victims by obstructing their path and employed physical force upon one victim by seizing her wrist with sufficient force to compel her to release the billfold: in view of the near helplessness of the legally blind wife and visually impaired husband, the force was sufficient to accomplish its purpose and amounted to robbery); Baldwin v. State, 48 Ark. App. 181, 892 S.W.2d 534 (1995) (holding that jerking the victim's hand from the car horn; blocking her exit from the automobile with a large, long duffle bag; and contact of their bodies as she got out of the car and he got into the car showed "bodily impact" to support the robbery conviction).
Affirmed.
VAUGHT, C.J., and HART, J., agree.