David Andrew McElroy v. State of Arkansas
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
TERRY CRABTREE, JUDGE
DIVISION II
CACR 06-174
October 4, 2006
DAVID ANDREW McELROY
APPELLANT
APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT
[NO. CR-03-2055]
V.
HONORABLE WILLARD PROCTOR, JR.
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
Appellant David McElroy was charged by the State with residential burglary, domestic
battering in the third degree–second offense, and violation of a protection order. After a
bench trial in the Fifth Division Circuit Court of Pulaski County, he was found guilty of all
three offenses and was sentenced as an habitual offender to six years in the Arkansas
Department of Correction. He appeals his convictions for residential burglary and domestic
battery in the third degree arguing there is not sufficient evidence upon which to sustain the
convictions.
We first consider the conviction for residential burglary. Arkansas Code Annotated
section 5-39-201 (Repl. 1997) provides that a person commits residential burglary if “he or
she enters or remains unlawfully in a residential occupiable structure of another person with
the purpose of committing in the residential occupiable structure any offense punishable by
imprisonment.” Appellant contends on appeal that this conviction is not supported by
sufficient evidence because appellant did not enter the victim’s home with the purpose of
committing a felony. He argues that the victim was unintentionally injured during a struggle
over a baseball bat, and therefore, he lacked the requisite intent to commit domestic battering
in the third degree. He asserts that because the underlying battery charge should not stand,
it cannot support his conviction for residential burglary. Appellant misconstrues the law.
At the trial Ms. Kimberly Grisby testified that she and appellant dated for ten years
and that they have a child together. On June 21, 2002, a permanent order of protection was
entered finding that domestic abuse existed and ordering that appellant have no contact with
Ms. Grisby for two years. The last paragraph of the order provides that violation of the order
carries “a maximum penalty of up to one (1) year imprisonment in the county jail or a fine
of up to One Thousand Dollars ($1,000.00) or both and any law enforcement officer with
proper jurisdiction shall enforce the terms herein.” Ms. Grisby testified that on December
27, 2002, at 2:00 a.m., appellant knocked on the door of her apartment and told her that he
wanted to come in and talk to her. She told him that she did not want to talk to him, and she
did not let him enter. Appellant left the apartment, but he returned at approximately 4:00
a.m. and broke in the door. Ms. Grisby testified that she did not want appellant in her
apartment, and she did not believe he just wanted to talk to her, so when he kicked in the
door, she grabbed a baseball bat and started swinging it. During the scuffle, appellant hit Ms.
Grisby in the face and took the bat away from her. She testified that when appellant hit her
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in the face it caused pain and it caused her eyes to swell. Ms. Grisby was able to get away
from appellant and call the police.
Officer John Roberts of the North Little Rock Police Department testified that he went
to Ms. Grisby’s apartment at approximately 4:30 a.m. on December 27, 2002. He said that
she was very upset and that both of her eyes were swollen. Officer Roberts testified that it
appeared to him as if the door frame to the apartment had been kicked in or that bodily force
had been used to break into the door.
Appellant testified at the trial, and he did not contest that he went to Ms. Grisby’s
apartment at 2:00 a.m. and again at 4:00 a.m. He said that he went to the window of the
apartment and asked Ms. Grisby to let him in, but she told him she did not want to talk. He
testified that the door frame was already broken because “I already kicked the door in about
two weeks before then because I didn’t have my key.” Appellant said that he “mashed the
door with my shoulder” and entered the apartment because “it was just on my mind, just to
get my woman back.”
Appellant acknowledged that he was “guilty of violating my
protection order,” but he denied intentionally hitting Ms. Grisby. Appellant testified that,
once he got into the apartment, Ms. Grisby was swinging the bat and screaming and
hollering, and he was trying to take the bat away from her. He stated that if Ms. Grisby “got
a swollen something it’s by me and her just swapping around with the bat and me trying to
catch the bat.” Appellant said that when he took the bat away from Ms. Grisby she “took out
running,” and at that point he knew she was going to call the police so he “went on and left.”
After the State’s case and again after his defense, appellant moved for a dismissal arguing
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that there was not sufficient evidence to support the residential burglary and domestic battery
charges. The trial court convicted appellant, and this appeal ensued.
A motion for directed verdict or to dismiss is a challenge to the sufficiency of the
evidence. Tester v. State, 342 Ark. 549, 30 S.W.3d 99 (2000). The test for determining the
sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct
or circumstantial. Id. Substantial evidence is evidence that is of sufficient certainty and
precision to compel a conclusion. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000).
In a challenge to the sufficiency of the evidence, the appellate court reviews the evidence in
the light most favorable to the State. Id.
Contrary to appellant’s assertion, the residential burglary statute does not require that
a person unlawfully enter a residence with the purpose of committing a felony, rather it
requires that a person unlawfully enter a residence with the purpose of committing any
offense punishable by imprisonment. Appellant admitted that he forced his way into Ms.
Grisby’s apartment and that he knew he was in violation of the protection order when he did
so. Because the foregoing constitutes substantial evidence, we affirm appellant’s conviction
for residential burglary.
Appellant also asserts that the State did not present evidence proving that he acted
with the purpose to cause physical injury to Ms. Grisby; therefore, he maintains there was not
substantial evidence to support his conviction for domestic battering in the third degree.
Pursuant to Ark. Code Ann. § 5-26-305 (Repl. 1997), a person commits domestic battering
in the third degree if with the purpose of causing physical injury to a family or household
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member, he causes physical injury to a family or household member. Arkansas Code
Annotated section 5-2-202(1) (Repl. 1997) provides that a person acts purposely when “it is
the person’s conscious object to engage in conduct of that nature or to cause the result.” A
criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and
must usually be inferred from the circumstances of the crime. Watson v. State, 358 Ark. 212,
188 S.W.3d 921 (2004). Moreover, because of the obvious difficulty in ascertaining a
defendant’s intent or state of mind, a presumption exists that a person intends the natural and
probable consequences of his or her acts. Id. 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. Isom v. State, 356 Ark. 156, 148 S.W.3d 257 (2004).
In the case at bar, Ms. Grisby testified that appellant hit her in the face causing pain
and swelling in her eyes. Officer John Roberts also testified that Ms. Grisby’s eyes were
swollen. Appellant maintains that he did not hit Ms. Grisby, and that her injuries were
caused during their scuffle with the baseball bat. Given the testimony, substantial evidence
exists to support appellant’s conviction for domestic battering in the third degree;
accordingly, we affirm.
Affirmed.
H ART and G LOVER, JJ., agree.
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