B.J. v. State

B.J. and D.R., Juveniles v. STATE of Arkansas

CA 96-378                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
               Opinion delivered February 5, 1997


1.   Evidence -- sufficiency of evidence -- factors on review. --
     In resolving the question of the sufficiency of the evidence
     in a criminal case, all evidence is viewed in the light most
     favorable to the appellee, and the decision is affirmed if
     there is substantial evidence to support the conclusion of the
     trier of fact; substantial evidence is that which is of
     sufficient force and character that it will, with reasonable
     certainty and precision, compel a conclusion one way or the
     other, without resorting to speculation or conjecture; it is
     the duty of the trier of fact to resolve any contradictions,
     conflicts, and inconsistencies in a witness's testimony and to
     determine the amount of credibility to be given to each
     witness's testimony.  

2.   Evidence -- judge weighed witness credibility  -- conviction
     supported by substantial evidence. -- Where the trial judge
     was more persuaded by the testimony of those witnesses who
     testified that they had seen appellant B.J. hit the victim and
     who had not, to her knowledge, lied under oath, and she found
     little or no credibility in any of the witnesses called by the
     defense, some of whom had admitted to lying under oath, she
     was properly weighing the credibility of the witnesses; there
     was substantial evidence to convict appellant B.J. of third-
     degree battery.

3.   Sentencing -- sentence enhancement properly applied -- court's
     order modified so that Ark. Code Ann.  5-74-108 did not
     appear as a separate offense. -- The trial court's order
     finding appellants guilty of two counts of battery in the
     third degree, Class A misdemeanors, and one count of engaging
     in violent criminal activity, a Class D felony, was modified
     so that Ark. Code Ann.  5-74-108, which provides for
     enhancement of the punishment where the defendant is found
     guilty of engaging in violent criminal activity, would not
     appear as a separate enumerated offense in the court's orders;
     because the elements of engaging in violent criminal activity
     were proved, the trial court properly applied the sentence-
     enhancement statute to appellants.


     Appeal from Faulkner Chancery Court, Juvenile Division; Karen
Baker, Juvenile Judge; affirmed as modified.
     Robert A. Newcomb, for appellants.
     Winston Bryant, Att'y Gen., by:  Kent G. Holt, Asst. Att'y
Gen., for appellee.

     Margaret Meads, Judge.
     Appellants, B.J. and D.R., are juveniles who were adjudged
delinquent for having each committed two counts of battery in the
third degree and one count of violent criminal group activity.  On
appeal, they argue that the trial court erred in adjudicating them
delinquent on the charge of engaging in violent criminal group
activity under Ark. Code Ann.  5-74-108 (Repl. 1993).  Appellant
B.J. also contends that the evidence is insufficient to support the
finding that he committed battery in the third degree with regard
to Charles Sypret.  We find these arguments without merit and
affirm the convictions as modified herein.
     The charges stem from two separate incidents which occurred on
December 12, 1995.  B.J., D.R., Tony Cragar, and Dana Reed were
riding in a car driven by Daniel Reed.  They followed a truck
carrying Robert Washburn and passenger Nick Summers into a cul-de-
sac, blocked the truck's path, and a fight between occupants of the
respective vehicles ensued.  
     Summers testified that both he and Washburn were pulled from
the truck, he was hit several times, was chased down the street,
and was kicked repeatedly after he fell down.  Summers identified
both D.R and B.J. as his assailants.  Beth Longing testified that
she saw three or four men pulling another young man out of the
truck and then chasing him down the street.  She went inside her
house to call 911 and saw that the young man was bloody when she
came back outside. 
     Later that day, Charles Sypret was attacked by four
individuals as he walked home from school.  Sypret testified that
Daniel Reed, B.J. and Tony Cragar surrounded him, that B.J. hit him
in the nose and broke it, and that he would require surgery. 
Sypret testified that D.R. was also present during the fight. 
Marcus Joliett testified that he witnessed the altercation between
Sypret and Cragar, Daniel Reed, B.J., and D.R. and corroborated
Sypretþs testimony that B.J. hit Sypret.
     Tony Cragar, Dana Reed, Daniel Reed, B.J., and D.R. testified
that neither B.J. nor D.R. hit or kicked Summers during the first
fight, and that Daniel Reed had taken B.J. home before the Sypret
incident.  However, Sypret testified that B.J. hit him in the nose,
and Marcus Joliett testified that B.J. was both hitting and kicking
Sypret.  Both Dana and Daniel Reed admitted they had lied under
oath at the detention hearing.
     B.J. contends there was insufficient evidence to support his
conviction of battery in the third degree regarding Charles Sypret. 
The offense of battery in the third degree is defined at Ark. Code
Ann.  5-13-205 (Repl. 1993) as follows: 
     (a)  A person commits battery in the third degree if:
     (1)   With the purpose of causing physical injury to
     another person, he causes physical injury to any person;
     or
     (2)   He recklessly causes physical injury to another
     person; or
     (3)   He negligently causes physical injury to another
     person by means of a deadly weapon; or
     (4)   He purposely causes stupor, unconsciousness, or
     physical or mental impairment or injury to another person
     by administering to him, without his consent, any drug or
     other substance.
     (b)  Battery in the third degree is a Class A
     misdemeanor.

     In resolving the question of the sufficiency of the evidence
in a criminal case, all evidence is viewed in the light most
favorable to the appellee, and the decision is affirmed if there is
substantial evidence to support the conclusion of the trier of
fact.  D.D. v. State, 40 Ark. App. 75, 842 S.W.2d 62 (1992). 
Substantial evidence is that which is of sufficient force and
character that it will, with reasonable certainty and precision,
compel a conclusion one way or the other, without resorting to
speculation or conjecture.  Id.  It is the duty of the trier of
fact, the trial judge in the instant case, to resolve any
contradictions, conflicts, and inconsistencies in a witnessþs
testimony, Id.; and to determine the amount of credibility to be
given to each witnessþs testimony.  Galvin v. State, 323 Ark. 125,
912 S.W.2d 932 (1996).  
     Here, the trial judge stated that she was þmore persuaded by
the testimony of Beth Longing, Mr. Summers, and Mr. Washburn, and
Marcus Joliett, who have not, to my knowledge, lied under oath in
this court, previously.  I do not find any credibility, to speak
of, in any of the witnesses called by the defense.þ  Based upon the
foregoing facts, there is substantial evidence to convict B.J. of
third-degree battery in the Sypert incident.    
     Appellants also contend the trial court erred in finding them
guilty of two counts of battery in the third degree, Class A
misdemeanors, and one count of engaging in violent criminal
activity, a Class D felony, because engaging in violent criminal
activity is merely an enhancement of punishment statute, not a
substantive offense.  Therefore, engaging in violent criminal
activity, as enumerated in Ark. Code Ann.  5-74-108, would not be
a Class D felony in itself, but rather would raise a third-degree
battery Class A misdemeanor to a Class D felony.  Appellants
contend that the sentence imposed was excessive and improper due to
the misapplication of the statute.  
     Arkansas Code Annotated  5-74-108 (Repl. 1993) provides, in
pertinent part:  
     (a)  Any person who violates any provision of Arkansas
     law which is a crime of violence while acting in concert
     with two (2) or more other persons shall be subject to
     enhanced penalties.

     (b)  Upon conviction of a crime of violence committed
     while acting in concert with two (2) or more other
     persons, the classification and penalty range shall be
     increased by one (1) classification.
     Appellee concedes, and we agree, that inasmuch as the
commitment orders suggest that Ark. Code Ann.  5-74-108 requires
a separate sentence, they are in error.  Yet, because the elements
of engaging in violent criminal activity were proved, the trial
court properly applied the sentence enhancement statute to
appellants.
     The trial judge found both appellants guilty of third-degree
battery and imposed punishments prescribed in the juvenile code.
See Ark. Code Ann.  9-27-330 (Supp. 1995).  Clearly, the trial
judge has the authority to deal with delinquents in the manner she
deems appropriate.  Each of the punishments is specified in Ark.
Code Ann.  9-27-330(a)(Supp. 1995); therefore, we cannot say that
the penalties were excessive or improper.  
     We affirm the decision of the trial court with the
modification that Ark. Code Ann.  5-74-108 should not appear as a
separate enumerated offense in the court's orders.
     Affirmed as modified.
     Cooper and Stroud, JJ., agree.