Robert Jordan, Jr., v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION II

ROBERT JORDAN, JR.

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CA 00-00469

MARCH 7, 2001

APPEAL FROM THE SEBASTIAN COUNTY CHANCERY COURT, JUVENILE DIVISION

[NO. J-99-504]

THE HONORABLE MARK HEWETT, CHANCELLOR

REVERSED AND DISMISSED

The chancery court adjudged the appellant, Robert Jordan, Jr., a delinquent juvenile for committing the offense of second-degree battery and ordered him to serve one year of probation and forty hours of community service. Jordan's sole argument on appeal is that the trial court erred when it denied his motion for a directed verdict. We reverse and dismiss.

On July 24, 1999, a confrontation occurred between Keith Green, age 16, Tony Moore, age 15, and Robert Jordan, Jr., age 14. Keith Green testified that he was in his apartment with his mother when a friend, "T.C.," told him that he was wanted outside in the parking lot. T.C. told Green that someone wanted to see his compact disk player. Green went outside and showed a compact disk player to Tony Moore while Jordan stood nearby. Green stated that after Moore decided the compact disk player was not his, he took it back inside, returned to the parking lot, andstood by his mother's car. Moore then accused Green of stealing his disk player from the car of "Fats," a friend who had driven Jordan and Moore to Green's house and was waiting nearby. Moore then punched Green once and broke his nose, dislocating the bridge. Green stated that Jordan swung at him afterwards, but he missed.

Green's mother, Dorothy Green, observed the incident from her apartment window and her testimony was essentially the same as her son's. She stated that Moore and Jordan arrived in the parking lot in a car driven by "Fats." Ms. Green testified that the three were talking quietly until Moore suddenly punched Green in the nose. Ms. Green went to the parking lot to stop the fight. When she threatened to call the police, "Fats" got out of the car and said it was time to go. She stated that Jordan never hit her son, but he did swing at him after Moore punched him. She said that her son swung at the boys after he was hit but that he also missed.

Officer Doug Brooks of the Fort Smith Police Department investigated Green's complaint. Officer Brooks testified that when he arrived, Green's nose was swollen and deformed and that Green identified Tony Moore and Robert Jordan as the suspects. He stated that Green's mother told him that Jordan and Moore were talking in the parking lot before Moore hit her son.

The State filed a petition alleging that Jordan and a co-defendant had committed the offense of second degree battery, a Class D felony. The chancery court hearing was held on September 15, 1999. The trial court denied Jordan's motion for a directed verdict after the State rested, and again denied the motion at the close of all evidence. The trial court found that Jordan committed second degree battery and ordered him to serve one year of probation plus forty hours of community service, pay restitution of $1,736.34, and submit a DNA sample.

Jordan's sole point on appeal is that the trial court erred in denying his motion for a directed verdict because there was insufficient evidence that he committed second degree battery. A motionfor a directed verdict is a challenge to the sufficiency of the evidence. Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, whether direct or circumstantial. Brown v. State, 315 Ark. 466, 869 S.W.2d 9 (1994). Evidence is substantial if it is of sufficient force and character to compel a conclusion one way or the other beyond suspicion or conjecture. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). This court will affirm the conviction if there is substantial evidence to support it when viewed in the light most favorable to the State as appellee. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). In cases such as the instant one, when the theory of accomplice liability is implicated, this court will affirm a sufficiency challenge if substantial evidence exists that the defendant acted as an accomplice in commission of the alleged offense. See Ark. Code Ann. § 5-2-402(2) (Repl. 1997).

At trial, Jordan argued at the close of the State's case that he never made contact with Green and "the swing that made contact that hit, that injured the actual victim was by Tony Moore. And I don't believe the State has met its burden showing Battery Second as to my client, Robert Jordan. He did not cause any physical injury." At the end of trial, Jordan renewed his motion and argued there was no evidence that he caused physical injury to Green. The trial court, in finding Jordan guilty of second degree battery stated, "I think these two young men along with the driver of the vehicle went over there for one purpose. And that was to confront Mr. Green . . . and they go over and confront him [Green] again rather than drive off and leave. If they had driven off, none of this would have happened."

Arkansas Code Annotated section 5-13-202 (Repl. 1997) provides that "[a] person commits battery in the second degree if with the purpose of causing physical injury to another person, he causes serious injury to any person." Arkansas Code Annotated section 5-2-403(a)(2) (Repl. 1997)provides that a person acts as an accomplice of another person in the commission of an offense, if, with the requisite intent, he aids, agrees to aid, or attempts to aid the other person in the commission of the offense. See also Nelson v. State, 306 Ark. 456, 816 S.W.2d 159 (1991); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990). As the State points out, factors relevant to determining whether a person is an accomplice include the presence of the accused near the crime, the accused's opportunity to commit the crime, and association with a person involved in the crime in a matter suggestive of joint participation. Banks v. State, 315 Ark. 666, 869 S.W.2d 700 (1994).

Jordan argues that the State offered no evidence that he caused physical injury to Keith Green. He asserts that both Green and his mother testified that Jordan did not hit Green, there was no evidence that Green and Jordan were arguing before the fight, and that the only parties arguing were Green and Moore. Jordan argues the State never produced testimony that he aided or encouraged Moore's actions in hitting Green. He asserts that there was no testimony of a plan to hit the victim, Jordan never instructed anyone to hit Green, and he did not hold or restrain Green while Moore hit him. We agree. The offense as alleged was battery, not engaging in a verbal confrontation. Testimony offered by the State and uncontradicted was that the boys were talking quietly until Moore suddenly punched Green. While it is true that Jordan was in close proximity to Moore when he hit Green, there was no evidence that Jordan aided, abetted, or encouraged Green in carrying out the single discrete act that constituted this offense.

Reversed and dismissed.

Pittman and Baker, JJ., agree.