Kennedy Lee Hinton v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

KENNEDY LEE HINTON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-390

FEBRUARY 23, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR02-4030]

HONORABLE JOHN W. LANGSTON, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

A Pulaski County jury found appellant Kennedy Lee Hinton, an habitual offender, guilty of aggravated robbery, residential burglary, and misdemeanor theft of property for which he was sentenced to a total of thirty-five years' imprisonment. On appeal, appellant challenges only his aggravated-robbery conviction, claiming that the trial court erred by denying his motions for directed verdict. We find no error and affirm.

We treat a motion for directed verdict as a challenge to the sufficiency of the evidence and consider such a challenge prior to the review of any other claims of trial error. See Dodson v. State, 341 Ark. 41, 46, 14 S.W.3d 489, 492 (2000). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Smith v. State, 346 Ark. 48, 52, 55 S.W.3d 251, 254 (2001). Substantial evidence is that which is forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When a defendant challenges the sufficiency of the evidence, the evidence is viewed in the light most favorable to the State, and only evidence supporting the verdict will be considered. Id. In order to be sufficient to sustain a conviction, circumstantial evidence must exclude every reasonable hypothesis consistent with innocence. Booker v. State, 335 Ark. 316, 984 S.W.2d 16 (1998). The question of whether evidence excludes every reasonable hypothesis consistent with innocence, however, is one to be answered by the jury. Edmond v. State, 351 Ark. 495, 95 S.W.3d 789 (2003).

On the afternoon of October 6, 2002, eighty-seven-87-year-old Amelia Long was sitting on her front porch at 4423 24th Street in Little Rock. A young black man carrying a foot-long, metal stick approached her, claimed to know someone she knew, and asked to use her telephone. As she went inside to get her telephone, the man followed her and pushed her inside the house, all the way back to into her bedroom. Although it is not clear from the record, Ms. Long demonstrated some kind of motion that the man made with the metal stick and stated, "I think that's what he was going to do" with it. Ms. Long stated that he never hit her with the stick, and she thought that he never threatened her with it. However, she went on to relate that in her opinion he had it by his side just "in case he wanted to use it[.]"

After they were inside the house, the man asked her if she had any money and, when Ms. Long said she did not have any, he asked her where her purse was. When she stated that it was "around here somewhere[,]" he found it on the floor and took $86.00 from it. He then threw her on the bed, began beating her, and told her to take her clothes off. Ms. Long refused and sat up on the side of the bed. When the man informed her that he was going to rape her, she told him that he was not going to and kicked him between the legs. After kicking the man, Ms. Long jumped up, ran out of the room, grabbed her telephone, went out on the front porch, and called the police. Subsequently, Ms. Long sought medical treatment for the injuries inflicted from the beating including what she perceived to be a broken bone. Although no bones were broken, she was severely bruised about her head and chest, and her face was cut and bleeding.

By the time the police arrived, the man was gone, but had managed to go through a cigar box in Ms. Long's house that contained important papers. Although Ms. Long could not identify the man, another man, who was across the street and saw the man enter the house behind Ms. Long and later exit it at the side, identified him as appellant, and a fingerprint of appellant's was found on the cigar box, even though appellant had never previously been inside of Ms. Long's house to her knowledge. Five days later, when a police officer attempted to arrest appellant, he tried to run, but the officer subdued him and handcuffed him.

Appellant argues that the trial judge erred in denying his motions for directed verdict regarding the aggravated robbery charge because the State failed to introduce substantial evidence that the State's exhibit number 2, a metal stick that appellant held during his encounter with the victim, was a deadly weapon because the State failed to introduce substantial evidence that appellant used, attempted to use, or threatened to use the metal stick to cause death or serious physical injury to the victim.

Arkansas Code Annotated section 5-12-103(a)(1)(Repl. 1997) provides that a "person commits aggravated robbery if he commits robbery as defined in § 5-12-102, and he ... [i]s armed with a deadly weapon or represents by word or conduct that he is so armed[.]"

Arkansas Code Annotated section 5-1-102(a) (Repl.1997), in turn, provides that "[a] person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another." For purposes of § 5-1-102(a),"`physical force' means any bodily impact, restraint, or confinement or the threat thereof." Ark. Code Ann. § 5-12-101(Repl. 1997). For purposes of § 5-1-103(a)(1), a deadly weapon includes "[a]nything that in the manner of its use or intended use is capable of causing death or serious physical injury[.]" Ark. Code Ann. § 5-12-102(4)(B)(Supp. 2001). When these statutory provisions are read in accordance with their plain language, see Bush v. State, 338 Ark. 772, 2 S.W.3d 761 (1991), and are applied to the evidence of this case, the court properly denied appellant's directed verdict motion.

The evidence at trial established that appellant committed robbery when he pushed Ms. Long in her home, thereby using physical force on her, and asked her for money and where her purse was located. During this exchange, appellant was carrying a foot-long, metal stick. The victim testified that he was hitting this against his own leg and she believed he had would use it if he chose. The jury reasonably and properly relied on its common sense, see Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996), to conclude that a young man who approaches an elderly woman sitting on her porch, pushes her, and robs her while carrying a stick did not intend to use the stick only as a pry tool, but also used it or intended to use it as an instrument to cause or threaten death or serious physical injury. In accordance with the clear language of the statue, it was not necessary for the prosecution to show the object's actual use to inflict death or serious physical injury. Under these circumstances, intended use could readily be inferred from the evidence before the jury.

Moreover, the credibility of the witness and the weight to be accorded her testimony are for the trier of fact, and such determinations will not be disturbed on appeal when there is substantial evidence to support the factfinder's conclusion. See Jenkins v. State, 60 Ark. App. 122, 125-26, 959 S.W.2d 427, 428 (1998).

Affirmed.

Pittman, C.J., concurs.

Glover, J., agrees.