Kevin Wilkerson v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION II

CACR01-791

JULY 3, 2002

KEVIN WILKERSON AN APPEAL FROM THE PULASKI APPELLANT COUNTY CIRCUIT COURT

v. [CR 2001-62]

STATE OF ARKANSAS HONORABLE WILLARD PROCTOR, APPELLEE JR., JUDGE

AFFIRMED

After a bench trial, Kevin Wilkerson was convicted of third-degree domestic battery. He was sentenced to three years' supervised probation and fined $300 plus court costs. In addition, Wilkerson was ordered to serve one-hundred days in the county jail and ordered to complete anger management and domestic abuse classes.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, Wilkerson's counsel filed a motion to withdraw on the grounds that this appeal is without merit. The motion was accompanied by a brief referring to everything in the record that might arguably support an appeal. The clerk of this court furnished Wilkerson with a copy of counsel's brief and to notify him of his right to file pro se points for reversal. Wilkerson failed to file points for reversal. We hold that the appeal is without merit and grant counsel's motion to withdraw.

Wilkerson and Miranda Stephenson began dating in March of 2000 and lived together up until November 25, 2000, when Stephenson ended their relationship and asked Wilkerson to leave. When Wilkerson returned the following day to retrieve his belongings, he and Stephenson engaged in a domestic altercation. As a result of their altercation, Stephenson sustained abrasions and bruises. Wilkerson was arrested and charged with third-degree domestic battery. At Wilkerson's bench trial, the State orally amended the information to allege that Wilkerson had committed another domestic battery offense within the last five years, thus enhancing the current offense to a Class D felony.

Stephenson testified that on November 25, 2000, she ended her relationship with Wilkerson and asked him to leave their home. She stated that Wilkerson returned the next day with his mother, Becky Wilkerson, to pick up his things and that while there, Wilkerson accused her of cheating on him. Stephenson testified that she pleaded with appellant to just take his things and leave. Stephenson further testified that as Wilkerson's anger escalated, he began to push her and throw things. She stated that at one point, Wilkerson choked her until she passed out. Stephenson stated that Wilkerson's mother tried to get him to leave and that after Wilkerson left, she called the police and later went to the hospital. She testified that as a result of the altercation, she sustained bruises to her throat, arms, breast, and head.

Deputy Michael Straun of the Pulaski County Sheriff's Office testified that on November 26, 2000, he answered a domestic disturbance call involving Wilkerson and Stephenson. Straun stated that when he arrived, he found Stephenson with bruises on herarms and neck and reddening around her throat. He also stated that the house was in disarray and that it looked like a struggle had occurred. Straun testified that Stephenson told him that he could find Wilkerson at 1308 Tamara Park. Straun stated that when he arrived at the address, Wilkerson's mother informed him that Wilkerson was in a bedroom. Straun stated that upon making contact with Wilkerson, Wilkerson asserted that Stephenson had assaulted him with a package of frozen meat.

Wilkerson's mother, Becky Wilkerson, testified that on November 26, 2000, she took her son to retrieve his clothes. She stated that while there, she observed her son and Stephenson arguing. Ms. Wilkerson testified that she never saw her son hit Stephenson. She did admit that during the argument, she left three or four times to take her son's things out to the porch. She also asserted that Stephenson choked herself.

At the close of the State's evidence and again at the close of all the evidence, Wilkerson moved for a directed verdict on the charges against him. The court denied the motions and found Wilkerson guilty of third-degree domestic battery. The State then introduced, without objection, evidence that Wilkerson had been convicted of third-degree domestic battery in 1999. The court determined that Wilkerson was guilty of a Class D felony.

The only adverse ruling that occurred during Wilkerson's trial was the denial of his motions for directed verdict. A directed-verdict motion is a challenge to the sufficiency of the evidence. Leaks v. State, 345 Ark. 182, 45 S.W.3d 363 (2001). When reviewing a challenge to the sufficiency of the evidence, we will affirm the conviction if there issubstantial evidence to support it, when viewed in a light most favorable to the State. See Curtis v. State, 76 Ark. App. 458, 68 S.W.3d 305 (2002). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation and conjecture. Moses v. State, 72 Ark. App. 357, 39 S.W.3d 459 (2001).

Arkansas Code Annotated section 5-26-305 (Supp. 2001) provides that a person commits domestic battery in the third degree, if with the purpose of causing physical injury to a family or household member, he causes physical injury to a family or household member. Physical injury is defined as "(A) the impairment of physical condition; (B) infliction of substantial pain; or (C) infliction of bruising, swelling, or visible marks associated with physical trauma." Ark. Code Ann. § 5-1-102 (14) (Supp. 2001).

Wilkerson and Stephenson lived together; thus, Stephenson was a household member. When Wilkerson returned to retrieve his belongings after Stephenson ended their relationship, the two engaged in a physical altercation. As a result of their altercation, Stephenson sustained bruises to her throat, arms, breast, and head. Wilkerson's mother testified that she never saw her son hit Stephenson and that Stephenson choked herself. We have long held that the trier of fact is free to believe all or part of a witness's testimony. Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001). The credibility of witnesses is an issue for the fact finder and not for this court. See id. The fact finder may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State's account of the facts rather than the defendant's. See id. Therefore, we hold there wassubstantial evidence to support Wilkerson's conviction.

The record has been reviewed in accordance with Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals. We conclude that there were no errors with respect to rulings adverse to Wilkerson and that this appeal is without merit. Accordingly, counsel's motion to be relieved is granted, and the judgment of conviction is affirmed.

Affirmed.

Jennings and Griffen, JJ., agree.