Donald Owens v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CACR03-534

JANUARY 28, 2004

DONALD OWENS AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT [CR02-1106]

V.

STATE OF ARKANSAS HONORABLE MARION HUMPHREY, JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

This appeal challenges the sufficiency of the evidence found to convict appellant, Donald Owens, of battery in the third degree. The court, sitting as trier of fact, sentenced appellant to one year probation and ordered restitution in the amount of $5,486.63. We affirm.

Directed-verdict motions are treated as challenges to the sufficiency of the evidence. Saulsberry v. State, 81 Ark. App. 419, 102 S.W.3d 907 (2003). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Id.

The facts deduced at trial are that on July 1, 2002, Tony Holley and his girlfriend Terry Wooten were in the parking lot of the Discovery Club in Little Rock when appellant, after numerous altercations at the club with Holley's associates, came up behind Holley and "sucker punched" him.

At trial, Wooten testified that:

As we walked out [of the club], [appellant] said, `There goes that old man there.' And so, we kind of stopped and turned around. And I told Tony, `just let it alone; let's go.' And, so, we'd turned around and walked to the car. And, about that time, he'd ran, he'd already hit Tony from behind. And I turned around and called him a little [b****] and told him to leave him alone. And, about that time, he spit on me and told me he was going to whip my [a**]. And, in the meantime, that's when Tony turned back around and went towards him, and his two friends went and grabbed my Tony. And I pretty much just pulled Tony away from them. . . . I did not see the defendant strike Tony Holley. I mean, he just come and hit him so fast from behind; but we knew it was him. There was nobody around the defendant at the time. I mean, we had walked off to ourselves and he literally lunged at him from behind and hit him. And that's when I turned around. We realized it was him and I told him, you know, just leave him alone.

Additionally, Holley's friend Alan Tarkington testified that as they came out of the club, someone called Holley an "old man" and that appellant started talking "verbally mean." Tarkington testified that Terry Wooten:

said something, you know, `just leave us alone,' or something and then [appellant] turned his attention toward Terry and then he tried to spit on her. And, of course, that's Tony's girlfriend. Tony Holley. And, Tony got upset and said, `man,' you know, `don't do that to my girlfriend.' One of [appellant's] friends grabbed Tony Holley, holding him back, which at the time it was not, I don't consider that to be unfriendly at the time. I thought, okay, he's doing Tony a favor. He's just getting upset, because he was talking mean and trying to spit on his girlfriend and he's keeping him from saying something back or maybe he thought he was going to go toward him, which at that point, I don't think Tony was. It was just the friend thought he was going to.

Tarkington testified that Holley "somehow [came] out of his shirt and wiggled out of it and said, `let go of me.'" Tarkington stated that at that point, more words were exchanged and everybody in his group decided to leave and started going towards their cars. He testified that:

Tony and Terry started walking off back toward the back parking lot. And I was looking for two other people that were with us, that wasn't there with us when we walked out. I was looking for them cause I was trying to get them in the car. And then I seen Tony and Terry turned around; talking to somebody. And I was keeping my eye, I kept glancing back at him, hoping, you know, seeing if he was okay. And about this time, [appellant] here starts walking real briskly, kind of high stepping like a, it reminded me of a Nazi Hitler type of march. He started quickly stepping fast, briskly toward them. And they didn't see him. He went behind a car and was watching them from a distance. And I kept glancing back and forth, and I kept walking. And I stopped. I was almost to my car and I stopped and turned around and looked. And about that time, when I turned around that last time, [appellant] did a dead run as hard as he could about a car length and a half and hit Tony from the side. Blindsided him. And when he did, Tony stumbled three or four steps to catch his, his balance so he didn't fall.

Appellant asserts on appeal that "[t]he witnesses presented by the State were not credible." However, it is well-settled that the trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Robinson v. State, 353 Ark. 372, 108 S.W.3d 622 (2003). We do not weigh the evidence presented at trial nor do we weigh the credibility of the witnesses. Polk v. State, 82 Ark. App. 210, 105 S.W.3d 797 (2003). Further, the testimony of one eyewitness alone is sufficient to sustain a conviction. Winbush v. State,82 Ark. 365, 107 S.W.3d 882 (2003). Here, the trial court obviously believed the State's witnesses and resolved any question of conflicting testimony and inconsistent evidence in its favor. Accordingly, we affirm.

Affirmed.

Pittman and Vaught, JJ., agree.