Kimberly Michelle Hinton v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

KIMBERLY MICHELLE HINTON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-856

April 27, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR2003-1532]

HON. TIMOTHY DAVIS FOX,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

Appellant Kimberly Michelle Hinton was convicted in a non-jury trial of first-degree battery and, consequently, had her probated sentence for a previous felon-in-possession-of-a-firearm conviction revoked. She was sentenced to fifteen years' imprisonment on the battery conviction and six years' imprisonment on the revocation of probation, with those sentences to be served concurrently. On appeal, appellant challenges the sufficiency of the evidence supporting the first-degree battery conviction and the circuit court's authority to revoke her probationary sentence. We affirm.

On February 28, 2000, appellant pleaded guilty to a felon-in-possession-of-a-firearm charge, for which she was sentenced to five years' probation. On May 1, 2003, the State filed an information charging appellant with first-degree battery for shooting Rita Mitchell in the arm on February 26, 2003, and a petition to revoke appellant's probation, alleging the same.

On January 25, 2004, a bench trial was held on both the new substantive charge and the petition for revocation. Both appellant's motion for directed verdict at the close of the State's case and renewed motion at the close of the evidence were denied. Additionally, appellant's motion to deny the petition for revocation on the ground that the State had failed to introduce appellant's written conditions of probation was denied. On appeal, appellant argues that there was insufficient evidence to support the conviction for first-degree battery,1 and accordingly, that the trial court erred in revoking her probation on the ground that no evidence of her conditions of probation was introduced.

I. Evidence Supporting Appellant's Conviction For First-Degree Battery

It is well settled that a motion for a directed verdict is a challenge to the sufficiency of the evidence. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). In a non-jury trial, a motion for dismissal is the equivalent of a motion for a directed verdict in a jury trial. Green v. State, 79 Ark. App. 297, 87 S .W.3d 814 (2002). For evidence to be sufficient, there must be substantial evidence, direct or circumstantial, to support the verdict, meaning that the evidence must be forceful enough to compel a conclusion one way or the other without having to resort to speculation and conjecture. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). In reviewing a challenge to the sufficiency of the evidence, the court will view the evidence in a light most favorable to the State and consider only the evidence that supports the conviction. Id. Circumstantial evidence may constitute substantial evidence to support a defendant's conviction, but only if it excludes every reasonable hypothesis consistent with innocence. Simmons v. State, __ Ark. App. __, __ S.W.3d __ (Dec. 8, 2004). The question of whether circumstantial evidence excludes every reasonable hypothesis other than guilt is generally reserved for the factfinder. Id.

Arkansas Code Annotated section 5-13-201(a)(7) states that a person commits first-degree battery if, "[w]ith the purpose of causing physical injury to another person, he causes physical injury to any person by means of a firearm." Additionally, Ark. Code Ann. § 5-2-202(1) provides that "[a] person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result."

There was direct testimony from Mitchell that appellant was the person who shot her in the arm. The two women had argued earlier in the day about money owed, and the shooting took place in another neighborhood around noon. Additionally, Rodrick Pride, who was "romantically involved with Mitchell," testified that he saw appellant's car outside his house when he looked out his window after hearing shots fired. Finally, Carl Gray, who lived with Pride, testified that he saw the two women exchange words and actually saw appellant fire a shot at Mitchell from the spot where he was standing on the porch of the house. Although the two men testifying for the State may have been predisposed in favor of Mitchell's side of the story, the trial court was free to believe all or part of any witness's testimony and could resolve questions of conflicting testimony and inconsistent evidence by choosing to believe the State's witnesses' accounts of the facts rather than appellant's. See Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001).

Substantial evidence exists to sustain the conviction despite appellant's arguments. Although appellant denied that she shot Mitchell, the trial court was not required to believe her, or any other witness's, self-serving testimony. See Sera v. State, 341 Ark. 415, 17 S.W.3d 61, cert. denied, 531 U.S. 998 (2000). After reviewing the evidence in the light most favorable to the State, we hold that substantial evidence supports appellant's conviction on the substantive count.

II. The Revocation Of Appellant's Probation

To revoke probation, the burden is on the State to prove the violation of a condition of probation by a preponderance of the evidence. Cheshire v. State, 80 Ark. App. 327, 95 S.W.3d 820 (2003). The State need only prove one violation of the probation conditions for the trial court to revoke a probation. Sisk v. State, 81 Ark. App. 276, 101 S.W.3d 248 (2003). On appeal, the trial court's findings will be upheld unless they are clearly against the preponderance of the evidence. Id. Because the determination of a preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the trial judge's superior position. Id.

Arkansas Code Annotated section 5-4-303(g) specifically provides that, "if the court suspends the imposition of sentence on a defendant or places him on probation, the defendant shall be given a written statement explicitly setting forth the conditions under which he is being released." As a rule, criminal statutes are strictly construed with any doubts resolved in favor of the accused. Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998). All conditions for a suspended sentence must be in writing if the suspended sentence is to be revocable. See Zollicoffer v. State, 55 Ark. App. 166, 934 S.W.2d 939 (1996). Therefore, courts have no power to imply and subsequently revoke conditions that were not expressly communicated in writing to a defendant as a condition of his suspended sentence. See Nelson v. State, 84 Ark. App. 373, 141 S.W.3d 900 (2004); Neely v. State, 7 Ark. App. 238, 647 S.W.2d 473 (1983).

The parties failed to include a copy of appellant's conditions of probation in their briefs; and, in fact, in our review of the record in this case, we do not find a list of appellant's conditions of probation anywhere in it. However, appellant did not raise this issue at the first available opportunity at the original trial on January 25, 2004, but, rather, waited until the parties reconvened for sentencing on January 26, 2004. We hold that appellant's objection on this issue was waived because it was not timely made and, accordingly, the revocation is affirmed.

Affirmed.

Bird, and Glover, JJ., agree.

1 Although appellant argues insufficiency of the evidence supporting the new substantive charge as her second point on appeal, double-jeopardy principles require us to consider that argument first. Edwards v. State, __ Ark. __, __ S.W.3d __ (Jan. 27, 2005).