Lionel Haynes and Robert Lester v. State of Arkansas

DIVISION II

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CA02-297

December 18, 2002

LIONEL HAYNES and AN APPEAL FROM SEBASTIAN

ROBERT LESTER COUNTY CIRCUIT COURT,

APPELLANTS JUV. DIV. [JV01-709 (IV); JV01-711]

V. HON. MARK HEWETT, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Lionel Haynes and Robert Lester appeal from an order adjudicating them delinquents for committing second-degree battery, in violation of Ark. Code. Ann. § 5-13-202 (Supp. 2001). They argue that the trial court erred in denying their motions for directed verdict. We disagree and affirm.

On October 31, 2001, Daphne Haynes, Derrick Robinson, Darnell Anderson, and the appellants were at the Sixth Street Park in Fort Smith playing basketball when they all left to go to a Total store. As the group proceeded to the Total store, they noticed Ronnie Butler. Appellant Haynes approached Butler to ask him if he was the person who had "bothered" his sister earlier that day. Butler responded, "No." After this encounter, a fight ensued in which Butler was struck several times from behind and had to be taken to the hospital. Kevin Chitwood, who is an officer with the Fort Smith Police Department and was off dutyat the time, was driving in his white Suburban down North Sixth Street toward the Total store when he noticed four males "beating" Butler. Officer Chitwood stated that he pulled into the parking lot of the Total store, exited the vehicle, identified himself as a police officer, and told the four males to stop. However, all four immediately fled the scene. Robinson and Anderson fled on foot, and appellants left by moped. Officer Chitwood pursued the appellants while calling for assistance. Once a marked patrol car arrived, the appellants were stopped and placed under arrest for battery.

At trial, Butler and Officer Chitwood testified to the events as noted above. Daphne Haynes and the appellants testified that it was Robinson and Anderson that attacked Butler, and not the appellants. The appellants moved for a directed verdict after the presentation of the State's case and again at the close of all the evidence. The trial court denied both motions. The trial court found the appellants guilty of second-degree battery and sentenced them to a suspended sentence of thirty days in the Sebastian County Juvenile Detention Center, placed them on probation for eighteen months, and ordered them to pay court costs and restitution to the victim. It is from this order that the appellants now appeal, arguing that the trial court erred in not granting their motions for directed verdict.

On appeal, this court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). In resolving the question of sufficiency of the evidence in a juvenile delinquency case, the standard of review is the same as in a criminal case. Pack v. State, 73 Ark. App. 123, 41 S.W.3d 409 (2001). That is, we review the evidence in the light most favorable to the Stateand affirm a conviction if there is substantial evidence to support it. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002). Evidence is substantial if it is of sufficient force and character that it will, with reasonable certainty, compel a reasonable conclusion one way or the other, without having to resort to speculation or conjecture. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). Only evidence supporting the verdict will be considered. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000). It is important to note that this court makes no distinction between circumstantial and direct evidence when reviewing the sufficiency of the evidence. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000). However, for circumstantial evidence to be substantial, it must exclude every other reasonable hypothesis consistent with a defendant's guilt and inconsistent with any other reasonable conclusion, which is a question of fact to be determined by the trier of fact. Harshaw v. State, 348 Ark. 62, 71 S.W.3d 548 (2002).

Butler testified that as he was walking to the Total store, one of the persons walking in front of him called him over to ask him if he had slapped that person's cousin. Butler responded that he did not know the person's cousin. However, according to Butler, someone then struck him from behind, and when he tried to swing back, another person hit him from behind. Butler could not identify who or how many people actually hit him, but he believed that he was attacked by at least two people. As a result of the attack, Butler said he suffered a large one-inch gash on his forehead, a large knot under his right eye, and a knot in the back of the head. Anita Butler, Butler's mother, testified that he had approximately nineteen hundred dollars in medical bills.

Officer Chitwood testified that he saw four males beating Butler. Although he could not tell who was kicking and who was hitting, he stated that all four males were involved in the attack. Officer Chitwood testified that when he approached the scene, he identified himself as a police officer and told all four males to stop. However, two males started running on foot and the other two left on a moped. He followed the two males on the moped until they were finally stopped with the assistance of an officer in a marked patrol car. The appellants both testified that neither of them struck Butler. Appellant Haynes said that he asked Butler if he had "bothered" his sister, but walked away from Butler when he responded no. According to Haynes, as he was leaving, Robinson and Anderson struck Butler. Haynes stated that he did not notice Officer Chitwood's white Suburban until after he and appellant Lester left the store, but he assumed that whoever was in the white Suburban was either Butler's parents or friends chasing them for something they did not do. Appellant Lester also testified that it was Anderson and Robinson who hit Butler from behind. Lester stated that he knew a white Suburban was chasing him and Haynes, but thought that it was someone with Butler coming to get them.

For their first argument, the appellants allege that the circumstantial evidence was not sufficient to convict because it was not consistent with their guilt and inconsistent with any other reasonable conclusion. Specifically, the appellants claim that the trier of fact was left to speculate about their involvement because Butler could not identify them as his attackers or specify how many people attacked him, and because Officer Chitwood could not identify which of the four males were kicking and which were hitting. Although Officer Chitwoodadmitted that he could not tell who was kicking and who was hitting, he said all four males around Butler were involved. He identified the appellants as the two males who fled the scene on the moped and were subsequently arrested for battery. The supreme court has held that the uncorroborated testimony of a single witness is sufficient to sustain a conviction. Galvin v. State, 323 Ark. 125, 912 S.W.2d 932 (1996). Furthermore, although the appellants denied attacking Butler and fleeing from Officer Chitwood, the trial court was not required to believe their account of the facts. Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998).

Alternatively, the appellants contend that even if Officer Chitwood's testimony could reasonably be viewed as substantial, the circumstances and conditions under which he observed the attack made his identification and observations less than reliable. According to the appellants, Officer Chitwood's testimony was unreliable (1) because he did not mention that there was a dumpster on the side of the Total store, which appellant Haynes testified was present at the scene; (2) because it is unclear how much lighting was available for Officer Chitwood to see and analyze the situation; (3) because there was no evidence to suggest that the appellants heard or understood Officer Chitwood when he identified himself as an officer; and (4) because Officer Chitwood could not identify who was kicking and who was hitting, his observation lacked clarity indicating that he did not have a clear picture of what happened that night. However, these issues go to the weight and credibility of the evidence, not to the sufficiency of the evidence, which are matters to be resolved by the trier of fact. Barnett v. State, 346 Ark. 11, 53 S.W.3d 527 (2001); Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998).

Upon consideration of the evidence, we conclude that the testimony is legally sufficient to support the verdict. Therefore, we hold that the trial court did not err in denying the appellants' motions for directed verdict.

Affirmed.

Pittman and Neal, JJ., agree.