Chet Lee Murry v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION II

CHET LEE MURRY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-980

APRIL 11, 2001

APPEAL FROM THE MONROE

COUNTY CIRCUIT COURT

[NO. CR-99-131]

HONORABLE L. T. SIMES, II,

CIRCUIT JUDGE

AFFIRMED

Appellant Chet Murry was convicted in a bench trial of commercial burglary, which is committed if a person "enters or remains unlawfully in a commercial occupiable structure of another with the purpose of committing therein any offense punishable by imprisonment." See Ark. Code Ann. § 5-39-201(b)(1) (Repl. 1997). He was sentenced to five years in prison, and now appeals. For reversal, Mr. Murry argues that there was insufficient evidence to support his conviction. We affirm.

The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, whether direct or circumstantial. Miller v. State, 68 Ark. App. 332, 6 S.W.3d 812 (1999). Evidence is substantial if it is of sufficient force and character to compel a conclusion one way or the other beyond suspicion or conjecture. Id. We will affirm the conviction if there is substantial evidence to support it, when viewed inthe light most favorable to the State. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999).

Officer Thomas Bevins of the Clarendon Police Department testified for the State. He stated that, on the night of August 4, 1999, he received an alarm call and was dispatched to the housing authority office. Upon arriving, he found a broken window and noticed movement inside the building. A backup officer arrived, and then someone from the housing authority arrived with a key and unlocked the door.

Upon entering, Officer Bevins found Mr. Murry hiding under a desk, and another officer removed Mr. Murry from his hiding place and arrested him. The officers also arrested Tony Abston, who was hiding in a cabinet. According to Officer Bevins, nothing had been taken, but the desk drawers had been ransacked. He also noticed a sock on one of Mr. Murry's hands.

Mr. Abston testified on behalf of the defense, and he admitted that he broke the window and entered the building to look for money. However, he stated that Mr. Murry "just came in behind me," and was not looking for anything. He surmised that Mr. Murry only followed him into the building to keep him company.

Mr. Murry testified on his own behalf, and acknowledged being in the housing authority office on this occasion. However, he explained that he entered the building only because his aunt had recently ejected him from her house, and he was looking for a place to stay. He testified that he did not know that Mr. Abston entered the facility with an intent to take anything.

For his argument that there was no substantial evidence to support his conviction,Mr. Murry does not deny that he was caught inside a building that had been broken into. Rather, he argues that the State failed to prove that he entered the building with the purpose of committing a crime. Mr. Murry cites Forgy v. State, 302 Ark. 435, 790 S.W.2d 173 (1990), for the proposition that illegal entry, alone, is not sufficient to prove burglary. He notes that Mr. Abston testified that he was not attempting to steal anything, and further refers to his own testimony that he was merely looking for a place to stay.

The State argues that Mr. Murry's challenge to the sufficiency of the evidence is not preserved for review because he failed to move for dismissal at the close of the evidence pursuant to Ark. R. Crim. P. 33.1(b). We agree. Rule 33.1(b) provides:

In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution's evidence, then the motion must be renewed at the close of all of the evidence.

Pursuant to Rule 33.1(c), a defendant's failure to make a timely motion for dismissal constitutes a waiver of any question pertaining to the sufficiency of the evidence.

In the instant case, Mr. Murry failed to move for dismissal at the close of the evidence. He addressed the sufficiency of evidence in his closing argument, but even if we considered this to constitute a motion to dismiss, it was untimely because it was made after the State's closing argument and not at the close of the case. J.R. v. State, Ark. App. S.W.3d (April 4, 2001). See Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997). Mr. Murry's failure to make a timely motion for dismissal precludes our review of his sufficiency argument.

We note that, even if Mr. Murry's challenge to the sufficiency of the evidence had been properly preserved, the argument would be of no avail since there was substantial evidence of his intent to commit a theft. It is well established that a criminal defendant's intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Stegall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000). In the case at bar, the State presented evidence beyond mere entry into the building. Considering the evidence in the light most favorable to the State, Mr. Murry entered the building with an individual who was admittedly looking for money, and he was found hiding, with a sock on his hand, under a desk in which desk drawers had been ransacked. This evidence was sufficient to support the finding that he entered the building with the purpose of committing an offense punishable by imprisonment.

Affirmed.

Vaught and Crabtree, JJ., agree.