McGill v. State

James David McGILL v. STATE of Arkansas

CA 97-186                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                        Divisions I & IV
               Opinion delivered February 11, 1998


1.   Motions -- directed verdict -- factors on review. -- A motion
     for a directed verdict is a challenge to the sufficiency of
     the evidence; in reviewing the sufficiency of the evidence in
     a delinquency case, the appellate court applies the same
     standard of review as in criminal cases; when the sufficiency
     of the evidence is challenged on appeal from a criminal
     conviction, the appellate court considers only the proof that
     tends to support the finding of guilt, and views the evidence
     in the light most favorable to the State; if the conviction is
     supported by substantial evidence it will be affirmed;
     substantial evidence is that which is of sufficient force and
     character to compel a conclusion one way or the other without
     resorting to speculation or conjecture.   

2.   Criminal law -- criminal mischief -- essential element of. --
     Pursuant to Ark. Code Ann.  5-38-203(a)(1) a person commits
     the offense of criminal mischief in the first degree if he
     purposely and without legal justification destroys or causes
     damage to any property of another; a person acts purposely
     with respect to his conduct or a result thereof when it is his
     conscious object to engage in conduct of that nature or to
     cause such a result; it is not enough to show merely that the
     property was damaged or destroyed, for one essential element
     of this crime is that the damage was willfully caused and not
     accidental.

3.   Juveniles -- delinquency adjudication based upon first-degree
     criminal mischief -- not supported by substantial evidence. --
     Appellant's delinquency adjudication based upon criminal
     mischief in the first degree was not supported by substantial
     evidence; viewed in the light most favorable to the State, the
     appellate court could not say that the evidence indicated that
     appellant purposely damaged the car; although the evidence
     that appellant fishtailed the car indicated appellant's intent
     to surrender some degree of control over the car, this
     evidence was not sufficient to show that appellant willfully
     intended to have a wreck and damage the car.  

4.   Juveniles -- appellant acted recklessly -- appellant's acts
     sufficient to constitute second-degree criminal mischief. --
     Under Ark. Code Ann.  5-38-204 (a)(1), a person commits
     criminal mischief in the second degree if he recklessly
     destroys or damages any property of another; the evidence
     supported the conclusion that appellant acted recklessly where
     it indicated that appellant fishtailed the car as he drove
     around a corner, so that he lost control of the car and struck
     a fence; by driving in this fashion, appellant consciously
     disregarded the risk that he could lose control of the car and
     have a wreck, resulting in the destruction of or damage to
     someone else's car; appellant's conscious disregard of the
     risk of a wreck was sufficient to support a finding of
     delinquency for committing criminal mischief in the second
     degree.

5.   Appeal & error -- standard of review -- evidence viewed in
     light most favorable to State. -- Under the appellate court's 
     standard of review, only the proof that tends to support the
     finding of appellant's guilt is considered, and the evidence
     is viewed in the light most favorable to the State. 

6.   Juveniles -- finding of delinquency supported by substantial
     evidence -- basis of trial court's delinquency determination
     modified to second-degree criminal mischief. -- Where the
     owner gave appellant the keys to the car, a witness stated
     that appellant drove the car, and appellant gave two
     inconsistent statements when confronted about the matter,
     there was substantial evidence to support the trial court's
     finding of appellant's delinquency; however, the appellate
     court modified the basis for the trial court's finding of
     delinquency to criminal mischief in the second degree. 

7.   Criminal law -- second-degree criminal mischief is lesser
     included offense of first-degree criminal mischief -- how  
     second-degree criminal mischief established. -- Criminal
     mischief in the second degree is a lesser included offense of
     criminal mischief in the first degree; second-degree criminal
     mischief is established by proof of the same elements as
     first-degree criminal mischief; the crimes are of the same
     generic class, and the distinction between the two offenses is
     based upon grades of intent or degrees of culpability.  

8.   Juveniles -- modification of delinquency charge -- case
     remanded for assessment of penalty. -- Although the appellate
     court modified the underlying basis for finding appellant
     delinquent to criminal mischief in the second degree, the
     trial court's punishment options did not depend upon the
     degree or classification of the underlying charge; thus
     modifying the basis for the delinquency charge to criminal
     mischief in the second degree left the court with little or no
     guidance for fixing appellant's punishment; the case was
     remanded to the trial court for assessment of the penalty. 


     Appeal from Washington Chancery Court; Charles N. Williams,
Chancellor; affirmed as modified and remanded.
     Virginia Y. Middleton, for appellant.
     Winston Bryant, Att'y Gen., by:  Brad Newman, Asst. Att'y
Gen., for appellee.
     D. Franklin Arey, III, Judge
     After a bench trial in the Juvenile Division of the Washington
County Chancery Court, the appellant, James David McGill, was found
to be delinquent for committing criminal mischief in the first
degree.  He was sentenced to thirty days in the juvenile detention
center with twenty-eight days suspended; he was also placed on
supervised probation for twelve months, required to make
restitution, and ordered to perform 100 hours of public service,
among other terms and conditions.  On appeal, appellant argues that
the trial court erred by denying his motion for directed verdict
because the evidence was not sufficient to prove he purposely
destroyed or damaged any property.  We affirm as modified and
remand the case.
     Appellant asked his high school classmate, Malanda Jo Gardner,
if he could sit in her car to smoke a cigarette and listen to the
radio.  She gave him her keys.  He did not ask Gardner if he could
drive the car; likewise, she did not tell him he could drive the
car.  
     Another classmate, Carl Shoffitt, was present when Gardner
gave appellant her keys.  Shoffitt saw appellant walk to the
passenger side of the car and throw the keys over the top of the
car to another student named Gene Duggin.  Duggin got in the car,
put the keys in the ignition, and turned the key over so he could
use the cigarette lighter; appellant got in the passenger seat. 
Shoffitt testified that as he was about to go inside, he heard the
vehicle start and turned around to look.  He saw Duggin driving
Gardner's car, with appellant in the passenger seat.  He next saw
the car thirty minutes later on the parking lot, after it had been
wrecked.
     Gardner testified that her car was in excellent condition
before appellant borrowed the keys.  The car was returned to her in
a wrecked condition.  Gardner's mother testified that the car had
been "totaled," and that the frame was bent or warped.  Gardner's
mother further testified that Gardner's father "had $2,500 in the
car."
     Duggin and appellant gave conflicting statements.  Duggin
claimed that appellant drove the car and was "fishtailing" it
around corners.  Duggin stated that as appellant fishtailed around
one corner, the back end of the car went to the right and swung up
against a fence.  The bumper was damaged, and the two students
tried to put it back on.  They brought the car back to the school
after the accident.
     Appellant gave two statements.  In his first statement,
appellant said nothing about leaving the school in the car.  In his
second statement, he admitted that he and Duggin took the car out
of the parking lot, with Duggin driving.  He claimed that Duggin
lost control of the car, slid to the right, and hit a fence post. 
They tried to fix the damaged bumper and returned the car to the
parking lot.  
     The State originally sought appellant's adjudication of
delinquency based upon acts of criminal mischief in the first
degree and theft of property.  At trial, the court granted
appellant's motion for directed verdict on the theft of property
charge.  The court denied the motion as to the remaining charge,
and found appellant guilty of juvenile delinquency by reason of
criminal mischief in the first degree.  
     Appellant contests the trial court's denial of his motion for
directed verdict.  He argues that the proof is not sufficient to
establish that he purposely destroyed or damaged Gardner's car. 
     A motion for a directed verdict is a challenge to the
sufficiency of the evidence.  D.D. v. State, 40 Ark. App. 75, 842 S.W.2d 62 (1992).  In reviewing the sufficiency of the evidence in
a delinquency case, we apply the same standard of review as in
criminal cases.  C.H. v. State, 51 Ark. App. 153, 912 S.W.2d 942
(1995).  When the sufficiency of the evidence is challenged on
appeal from a criminal conviction, we consider only the proof that
tends to support the finding of guilt, and we view the evidence in
the light most favorable to the State.  Id.; D.D., 40 Ark. App. at
76, 842 S.W.2d  at 63.  We will affirm if the conviction is
supported by substantial evidence.  C.H., 51 Ark. App. at 154, 912 S.W.2d  at 943.  Substantial evidence is that which is of sufficient
force and character to compel a conclusion one way or the other
without resorting to speculation or conjecture.  Id.  
     A person commits the offense of criminal mischief in the first
degree if he purposely and without legal justification destroys or
causes damage to any property of another.  Ark. Code Ann.  5-38-
203(a)(1)(Repl. 1997).  A person acts purposely with respect to his
conduct or a result thereof when it is his conscious object to
engage in conduct of that nature or to cause such a result.  Ark.
Code Ann.  5-2-202(1).  "It is not enough to show merely that the
property was damaged or destroyed, for one essential element of
this crime is that the damage was willfully caused and not
accidental."  Bray v. State, 12 Ark. App. 53, 670 S.W.2d 822, 823
(1984). 
     Appellant's delinquency adjudication based upon criminal
mischief in the first degree is not supported by substantial
evidence.  Viewed in the light most favorable to the State, we
cannot say that the evidence indicates that appellant purposely
damaged the car.  Although Duggin's statement that appellant
fishtailed the car indicates appellant's intent to surrender some
degree of control over the car, this evidence is not sufficient to
show that appellant willfully intended to have a wreck and damage
the car.  
     The State argues, in the alternative, that we should modify
the delinquency adjudication by finding that it is based on an act
that would constitute criminal mischief in the second degree.  In
his reply brief, appellant responds that he did not recklessly
destroy or damage the car; rather, he simply borrowed Gardner's
keys.  
     A person commits criminal mischief in the second degree if he
recklessly destroys or damages any property of another.  Ark. Code
Ann.  5-38-204(a)(1).  A person acts recklessly with respect to
attendant circumstances or a result of his conduct when he
consciously disregards a substantial and unjustifiable risk that
the circumstances exist or that the result will occur.  The risk
must be of the nature and degree that disregard thereof constitutes
a gross deviation from the standard of care that a reasonable
person would observe in the actor's situation.  Ark. Code Ann.  5-
2-202(3). 
     We agree that the evidence supports the conclusion that
appellant acted recklessly.  Duggin's statement indicates that
appellant fishtailed the car as he drove around a corner, so that
he lost control of the car and struck a fence.  By driving in this
fashion, appellant consciously disregarded the risk that he could
lose control of the car and have a wreck, resulting in the
destruction of or damage to someone else's car.  Thus, appellant's
conscious disregard of the risk of a wreck would support a finding
of delinquency for committing criminal mischief in the second
degree.
     Appellant argues that he never admitted to driving the car,
and that his statements are corroborated by the testimony of
Shoffitt.  But, under our standard of review, we consider only the
proof that tends to support the finding of appellant's guilt, and
we view the evidence in the light most favorable to the State.  See
C.H., supra.  Gardner gave appellant the keys to the car, Duggin
stated that appellant drove the car, and appellant gave two
inconsistent statements when confronted about the matter.  There is
substantial evidence to support the trial court's finding of
appellant's delinquency.
     Therefore, we modify the basis for the trial court's finding
of delinquency to criminal mischief in the second degree.  See Ark.
Code Ann.  16-67-325(a)(1987).  
     Where the evidence presented is insufficient to sustain
     a conviction for a certain crime, but where there is
     sufficient evidence to sustain a conviction for a lesser
     included offense of that crime, this court may "reduce
     the punishment to the maximum for the lesser offense,
     reduce it to the minimum for the lesser offense, fix
     it... at some intermediate point, remand the case to the
     trial court for the assessment of the penalty, or grant
     a new trial either absolutely or conditionally."

Tigue v. State, 319 Ark. 147, 152-53, 889 S.W.2d 760, 762
(1994)(citing Trotter v. State, 290 Ark. 269, 719 S.W.2d 268
(1986)).  Criminal mischief in the second degree is a lesser
included offense of criminal mischief in the first degree.  Cf.
McElhanon v. State, 329 Ark. 261, 948 S.W.2d 89 (1997)(articulating
the factors to consider in finding a lesser-included offense). 
Second-degree criminal mischief is established by proof of the same
elements as first-degree criminal mischief; the crimes are of the
same generic class; and the distinction between the two offenses is
based upon grades of intent or degrees of culpability.  Compare 
5-38-203(a)(1) with  5-38-204(a)(1).
     While we modify the underlying basis for finding appellant
delinquent to criminal mischief in the second degree, we note that
the trial court's punishment options did not depend upon the degree
or classification of the underlying charge.  See Ark. Code Ann. 
9-27-330 (Repl. 1993).  Thus, unlike the situation typified by
Tigue, modifying the basis for the delinquency charge to criminal
mischief in the second degree leaves us with little or no guidance
for fixing appellant's punishment.  For this reason, we remand this
case to the trial court for assessment of the penalty.  See Ark.
Code Ann.  16-67-325(a); Tigue, supra.  We announce no opinion on
the suitability of appellant's current punishment.  
     Affirmed as modified and remanded for further proceedings not
inconsistent with this opinion.  
     Robbins, C.J., and Rogers and Crabtree, JJ., agree.
     Neal and Roaf, JJ., dissent.


             Andree Layton Roaf, Judge, dissenting.

     It is well settled that, because of double jeopardy
considerations, this court must reverse and dismiss a criminal
conviction where the evidence is insufficient to support the
conviction.  This has been the law of the land since 1978. See
Pollard v. State, 264 Ark. 753, 574 S.W.2d 656 (1978) (citing 
Burks v. United States, 437 U.S. 1 (1978) and  Greene v. Massey,
437 U.S. 19 (1978)).  It is also axiomatic that this court may
reduce the conviction to a lesser-included offense where the trial
court erred by refusing to give a requested instruction on the
lesser-included offense.  See Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884 (1977).
     However, the disposition of this case presents an example of
a third and apparently equally well-established tenet of appellate
review in Arkansas -- that we may, in the absence of other trial
error, reduce a conviction gained upon insufficient evidence to a
lesser-included offense not charged, requested, or even mentioned
at trial, in lieu of reversing the conviction outright.  Tigue v.
State, 319 Ark, 147, 889 S.W.2d 760 (1994).  This is to be
distinguished from the power of our reviewing courts to modify a
sentence or punishment deemed excessive or illegal. Hudgens v.
State, 324 Ark. 169,919 S.W.2d 939 (1996).
     Much could be said about the origins and evolution of this
authority; I will not attempt to do so, in the interest of holding
the readerþs attention.  Suffice it to say that the distinction
between reducing a sentence and reducing the degree of the offense
has been somewhat blurred in the past.  The supreme court has done
one or the other, or a combination of the two, commencing in the
nineteenth century, see Brown v. State, 34 Ark. 232, (1879),
Simpson v. State, 56 Ark. 8, 19 S.W. 99 (1892), and continuing on
into the decades that followed.  Noble v. State, 75 Ark. 246, 87 S.W. 120 (1905); King v. State, 117 Ark. 82, 173 S.W. 852 (1915);
Brooks v. State, 141 Ark. 57, 216 S.W. 705 (1919).   We have
persisted in reducing convictions, such as McGillþs, during the
years where we had the option of remanding such cases for new
trial, see Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977);
Bailey v. State, 206 Ark. 121, 173 S.W.2d 1010 (1943); and after
1978, when we did not. See Tigue v. State, supra; Bishop v. State,
294 Ark. 303, 742 S.W.2d 911 (1988); Mills v. State, 270 Ark. 141,
603 S.W.2d 416 (1980).
     The majority relies upon Tigue, supra, for the authority to
reduce McGillþs conviction in this case.  Tigue in turn relied upon
Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1994). 
Unfortunately, both  Tigue and Trotter quote from Dixon v. State,
supra, a 1977 pre-Pollard decision which stated that where the
evidence is insufficient to sustain a conviction for a particular
crime, the court may
     reduce the punishment to the maximum for the lesser
     offense, reduce it to the minimum for the lesser offense,
     fix it. . . at some intermediate point, remand the case
     to the trial court for the assessment of the penalty or
     grant a new trial either absolutely or conditionally.

Dixon, 260 Ark. at 862, 545 S.W.2d  at 609 (emphasis added). Of
course, after 1978, this is no longer an accurate statement of the
law.
     Nevertheless, as it stands today, we are authorized by our
supreme court to reduce a conviction when faced with the situation
now confronting us and confronting young Mr. McGill.  When we may
do so is presumably solely within our discretion.  In McGillþs
case, we are prodded to employ this discretion by the State, most
likely because it sees the handwriting on the wall for its
conviction based upon first-degree criminal mischief.  The State
now recommends to us an alternative it did not present to McGill or
to the trial court -- we may find McGill guilty of second-degree
criminal mischief.
     Although both offenses are felonies because of the alleged
value of the automobile that was totaled, McGill was adjudicated a
delinquent because of his age and faces only two daysþ
incarceration in a juvenile detention center.  However, our
appellate courts have most often exercised the prerogative to
reduce rather than dismiss a conviction when reversing felony
convictions from both jury and bench trials.
     It may well be that our courts have, since 1978, reversed and
dismissed some criminal convictions based on insufficiency of the
evidence because the State did not suggest in its appellee brief a
lesser-included offense, and we did not ferret one out on our own. 
For criminal appellants as a whole, the glass may be half full
rather than half empty.  However, each case stands on its own, and
each defendant is entitled to fair and equal treatment in light of
our avowed dedication to the uniform administration of justice.
See, e.g., State v. Zawodniak, 329 Ark. 179, 946 S.W.2d 936 (1997).
     In the case before us, the prosecutor has already exercised
his considerable discretion in the proceedings below.  I choose to
exercise my much more limited discretion by casting my vote to
reverse and dismiss this conviction.
     Neal, J., joins this dissent.

                  Olly Neal, Judge, dissenting.


     Although I join in Judge Roaf's dissenting opinion, I must
write separately to illuminate a point we all have apparently
overlooked.  The appellant here, Christopher McGill, a juvenile,
was found guilty of a felony offense, and the majority can point
only to the uncorroborated out-of-court statement of an accomplice
as substantial evidence to support the conviction.
     Arkansas Code Annotated  16-89-111 (e)(1) (1987) provides
that a felony conviction may not be had upon the testimony of an
accomplice unless corroborated by other evidence tending to connect
the accused to the commission of the offense.  Felony convictions
supported only by uncorroborated accomplice testimony should be
dismissed on appeal to avoid running afoul of the double jeopardy
clause.  See Williams v. State, 328 Ark. 487, 944 S.W.2d 822
(1997).
     The test for determining whether accomplice testimony is
sufficiently corroborated to render it sufficiently reliable is
whether, when the accomplice's testimony is totally stricken, the
remaining evidence independently establishes the crime and tends to
connect the accused to its commission.  Peeler v. State, 326 Ark.
423, 932 S.W.2d 312 (1996).  Here, without the accomplice's
testimony, the other evidence establishes that 1) the victim left
her car keys with appellant and the accomplice; 2) a disinterested
witness saw the accomplice driving the car; and 3) when the victim
later returned to the school parking lot her car was "totalled." 
Because there was uncontradicted testimony that the victim left her
car keys with both appellant and the alleged accomplice, neither
factor nor any combination thereof is sufficient to independently
connect appellant to the commission of the crime.   Because the
testimony of Duggin, the alleged accomplice, was not corroborated,
we should reverse and dismiss this appeal, consistently with our
established practice when we find the evidence insufficient to
sustain a conviction.