Stephens v. State
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Cite as 2010 Ark. App. 363
ARKANSAS COURT OF APPEALS
No.
DIVISION I
CACR09-1190
MARCUS LAKEITH STEPHENS
APPELLANT
Opinion Delivered APRIL 28, 2010
V.
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT
[CR-09-381]
STATE OF ARKANSAS
HONORABLE WILLARD
PROCTOR, JR., JUDGE
APPELLEE
AFFIRMED
RITA W. GRUBER, Judge
Marcus Stephens was charged by felony information with aggravated residential
burglary and first-degree criminal mischief. He was tried in a bench trial, was convicted of
residential burglary and first-degree criminal mischief, and was sentenced to five years’
probation, thirty hours of community service, and restitution. He brings this appeal from the
judgment and commitment order entered on July 9, 2009, challenging only the sufficiency
of the evidence to support the burglary conviction. He argues that the State presented no
proof of intent to commit an imprisonable act, a required element of residential burglary. We
disagree and affirm.
A person commits residential burglary if he enters or remains unlawfully in a residential
occupiable structure of another person with the purpose of committing in the residential
occupiable structure any offense punishable by imprisonment. Ark. Code Ann. § 5-39-
Cite as 2010 Ark. App. 363
201(a)(1) (Repl. 2006). A person commits aggravated residential burglary if he commits
residential burglary as defined in section 5-39-201 of a residential occupiable structure
occupied by any person, and he is armed with a deadly weapon or represents by word or
conduct that he is armed with a deadly weapon, or inflicts or attempts to inflict death or
serious physical injury upon another person. Ark. Code Ann. § 5-39-204(1), (2) (Supp.
2009).
Larry Johnson, a witness for the State, testified that the following events took place
when he visited Martisha Bell at her home the evening of April 8, 2008. Bell’s cell phone
rang while they were in her living room engaging in sexual relations, and she did not answer
it. The couple were interrupted when “a guy came through the [front] door shooting,”
despite the fact that furniture was propped against it. Johnson thought the man was trying
to get in and pulled his own gun immediately. Johnson observed the arm, head, and face of
someone he had never seen before, with a chrome .380, “the same make and model as . . .
my wife carries.” Johnson testified that the man could not get through the door and shot
once, “[not] like he was shooting at me. He shot in the house.” Johnson, who had a permit
to carry a concealed weapon, lacked a clear shot and did not return the fire. Bell panicked
and disappeared, and Johnson telephoned police after making sure that children in the home
were safe in their rooms. The intruder was outside, shouting and screaming “in a rage.”
Johnson went out when the police arrived, and he saw that all his tires were slashed and flat.
At trial Johnson identified the man as Stephens and could not recall telling police that
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Cite as 2010 Ark. App. 363
he had never seen Stephens the night of these events. When reminded, Johnson agreed he
had said that he was on the couch watching a movie when he heard someone trying to get
in the front door, that he saw just an arm, and that he heard two or more shots.
Officer William Farnam testified that he and another officer responded to a call about
a home intrusion with shots fired. They observed Stephens walking from Bell’s home toward
the street, and in the bushes they found a silver Bryco .380 automatic handgun. Farnam
talked to Stephens, who said that he had kicked in the door upon seeing a male inside the
home and becoming angry and that he waited outside after Bell told him she had called the
police. Farnam also interviewed Johnson, who said there had been banging on the door, the
door opened, he observed a silver pistol, and one shot was fired. Farnam said Johnson stated
that Bell jumped up and ran out after grabbing her children, that he called 911, and that he
waited inside for officers.
Farnam placed Stephens under arrest and read him his Miranda rights. Stephens then
told officers that the gun by the bushes was his. He also said that after observing Bell and
Johnson having sex, he kicked in the door, observed Johnson reaching into his front pocket,
and exited the residence. Stephens told officers that he fired two shots in the air once he was
outside, attempting to scare the couple, and that he threw his gun in the bushes when he saw
officers arrive. Officers found no shell casing or other evidence of a shot being fired inside,
and Bell told officers that apparent signs of gunfire inside the residence were previously there.
Detective Edmond Brooks testified about interviewing Stephens after re-Mirandizing him:
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Stephens admitted being at the residence, getting his arm and shoulder all the way inside,
possessing a handgun, firing twice in the air, and cutting Johnson’s tires, and Stephens
reiterated that Johnson was first to reach for a gun.
Stephens moved to dismiss all charges at the close of the State’s testimony. He argued
that the State had not made a prima facie case for aggravated residential burglary because it
failed to prove 1) that he unlawfully entered Bell’s home “with the purpose of committing
therein any offense punishable by imprisonment while armed with a deadly weapon,” and 2)
that he represented by word or conduct that he was armed. The trial court denied the
motions, and Stephens testified in his own behalf.
Stephens explained that he had a twelve-year relationship with Bell, his fiancée and
the mother of his three children. He said that the couple “shared” two residences, but the
South Harrison residence was rented in her name. He testified that Bell and the children had
spent family time with him at the other residence on April 8, 2008, and he stayed behind
when she took the children to South Harrison that evening. He said that Bell telephoned
him and said she would call back after the last child went to sleep, but she had not phoned
an hour later and he decided to drive over. He said there was a strange truck in the backyard
where he normally parked. Through front-door windows he could see Bell having sex with
a man (Johnson) whom Stephens did not know, so he called her on his cell phone. He
watched her pick up her phone, set it back down, and appear to indicate to Johnson that he
should get up. Johnson grabbed Bell by the neck and forced her back on the couch.
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Stephens pounded the door open, knowing there had been previous problems with getting
their keys jammed.
Stephens admitted trying “to bust in” with the intention to “put it in their face.” He
testified that he ran back to his car for his gun because by the time he stuck his head past the
barricaded door, Johnson had pulled a weapon. Stephens testified that he fired two shots in
the air out of fear and distress, and to let Johnson “know that I had a gun . . . as well.” He
then got a Boy Scout knife from his car, ran to the backyard, and flattened the truck’s four
tires. He waited for police to arrive because “pretty much everybody” had called them. He
told the officer that his children and a man with a gun were inside.
The defense rested, and Stephens renewed his motions to dismiss, again arguing that
the State failed to make a prima facie case of aggravated residential burglary. He recounted
his own testimony that he fired two shots in the air, as well as testimony that only one shot
was heard and no shell casings were found. The motions were denied. Following further
argument by counsel, the trial court pronounced appellant guilty of residential burglary and
criminal mischief.
On appeal Stephens again points to the statutory element of residential burglary that
the perpetrator intended to commit an imprisonable act other than the illegal entry. Because
he was found guilty of residential burglary rather than aggravated residential burglary, he
asserts that the “fact finder concluded that appellant did not have a gun or represent that he
had a gun when he entered the residence.” He cites no statements or specific findings in the
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record, however, to support his argument.
Because specific intent and illegal entry are separate elements of the crime of burglary,
specific criminal intent cannot be presumed from a mere showing of illegal entry of the
occupiable structure. Norton v. State, 271 Ark. 451, 609 S.W.2d 1 (1980). In Booker v. State,
our supreme court further explained:
The crime of burglary can be complete even though the intention to commit
a crime after unlawfully entering the structure is not consummated. However, the
facts must show circumstances of such probative force as to reasonably warrant the
inference of the purpose on the part of the accused to commit an offense punishable
by imprisonment, other than the entry itself. Purpose can be established by
circumstantial evidence, but that evidence must be such that the requisite purpose can
be reasonably inferred, and the evidence must be consistent with the guilt of the
accused and inconsistent with any other reasonable conclusion.
335 Ark. 316, 321–22, 984 S.W.2d 16, 19–20 (1998) (citations omitted).
Stephens relies upon such cases as Norton, supra, and Wortham v. State, 5 Ark. App. 161,
634 S.W.2d 141 (1982), where burglary convictions were reversed because the requisite
criminal intent was not found from the “mere presence” of the defendants in places they were
not supposed to be. Those cases are, however, distinguishable from the one before us. The
evidence in Norton revealed only that the defendant was standing inside a doorway of an office
building he had illegally entered and from which nothing was taken. The Wortham court
found it not unreasonable to assume that the defendant had no criminal purpose when he
entered a house where he did not belong, despite the fact that he ran when a young girl
screamed: it was daytime and loud music was playing, and nothing indicated that he was
armed, improperly approached anyone, or touched anything in the household.
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Cite as 2010 Ark. App. 363
When reviewing a challenge to the sufficiency, we will affirm the conviction if there
is substantial evidence to support it. Lewis v. State, 2009 Ark. App. 504. We view the
evidence in the light most favorable to the verdict and consider only evidence that supports
it. Id. Credibility determinations are made by the trier of fact, which may choose to believe
the State’s version of events rather than that of the defendant. Ross v. State, 346 Ark. 225, 57
S.W.3d 152 (2001). Under these standards, the evidence shows that an angry Stephens
attempted to “bust in” Bell’s front door to “put it in [the couple’s] face,” pushing his arm and
body partially through the door and shooting his handgun into the residence. This is
circumstantial evidence from which the trier of fact could reasonably have inferred that
Stephens committed an offense punishable by imprisonment other than the entry itself;
further, the evidence is consistent with his guilt and inconsistent with any other reasonable
conclusion.
Affirmed.
VAUGHT, C.J., and GLOVER, J., agree.
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