Alexander Moix v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

CA 05-842

March 8, 2006

ALEXANDER MOIX

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

APPEAL FROM FAULKNER COUNTY CIRCUIT COURT

[NO. JV-05-106]

HONORABLE LINDA P. COLLIER,

CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

The Faulkner County Circuit Court adjudged appellant Alexander Moix delinquent for committing the misdemeanors of third-degree battery and criminal mischief. The court sentenced Moix to twenty-four months of supervised probation and forty hours of community service and ordered him to pay various fines, fees, and restitution. Moix appeals, asserting that, as a matter of law, the trial court erred in its application of the defense of justification. We affirm.

The pertinent facts of this case are as follows. In February of 2005, Moix and his associate, Nathan Ward, were shopping at Hastings in Conway when Moix spotted Kateri Balough. Moix attempted to greet Balough, but he did not hear her respond. Moix then told Ward that Balough was "rude" and an "ass." Balough's boyfriend, Jonathan Engi, overheard Moix and asked if he was "talking s***" about his girlfriend. Engi then pushed Moix; this first incident did not progress any further. Engi testified that he walked away and prepared to leave the store because he did not want to get into any trouble. At this point, the two sides present very different versions of what happened next. Engi and Balough claim that about three to five minutes later, Moix approached Engi, asked if he "wanted to start some s***," and swung a guitar, striking Engi in the face and injuring him. Moix and Ward claimed that while Moix was looking at a guitar, Engi approached him with a raised fist; when Engi continued to approach after being asked to stop, Moix then swung the guitar at him. The store clerk, Chad Killough, testified that he witnessed the second incident, that he saw Engi approach Moix and say, "You need to quit talking s*** about my girlfriend," that Engi did not approach Moix like he was going to hit him, that he was not certain whether the two were going to fight or argue, and that Moix hit Engi with the guitar.

The State filed a delinquency petition, charging Moix with the commission of third-degree battery and criminal mischief. At the conclusion of the trial, the trial court stated, "Well, you both have put on a very compelling case; however, I think the statute and case law on self-defense would have me to suppose some things that I'm in a position to suppose. . . . whether he approached the victim with it [guitar] as the victim testified, or whether the victim approached him and then he hit the victim with it, as he testified, it all pretty well comes out the same." The court then found the charges of criminal mischief and battery in the third degree to be true and sentenced Moix accordingly.

Moix asserts that "[t]his appeal presents a question of law and statutory interpretation." He argues that the trial court erred in its application of the law of self-defense. The State contends in response that this court is procedurally barred from hearing this appeal because Moix failed to properly preserve his argument. The State is correct.

Moix failed to raise any statutory interpretation argument at the trial level, and is thus procedurally barred from raising such an argument for the first time on appeal. See, e.g., Bridges v.State, 327 Ark. 392, 938 S.W.2d 561 (1997). In addition, Moix failed to move for dismissal after the close of the State's evidence and again after the close of all evidence and, therefore, failed to make a timely challenge to the sufficiency of the evidence. A defendant's failure to make a timely motion for dismissal constitutes a waiver of any questions pertaining to the sufficiency of the evidence to support the verdict or judgment. Ark. R. Crim. P. 33.1(c) (2005).

Moix argues that this appeal is not an attack on the sufficiency of the evidence but is an attack on the misapplication of the law of self-defense, and that this issue can be reviewed de novo on appeal. While it is true that the trial court stated "it all pretty well comes out the same" whether Moix approached Engi or whether Engi approached Moix, the court also stated that the law of self-defense allows the court to suppose some things that it is in a position to suppose. Here, the trial court simply exercised its discretion and chose to believe the version of events in which Moix was not entitled to use self defense. In cases where witness credibility is involved, wide discretion is afforded to the fact-finder, who has the best opportunity to observe the witnesses. Ricks v. State, 316 Ark. 601, 873 S.W.2d 808 (1994).

Notwithstanding the procedural bar, there is sufficient evidence to support the trial court's determination that Moix is delinquent. When the sufficiency of the evidence is challenged, the appellate court considers only that proof which tends to support the finding of delinquency and views that evidence in the light most favorable to the State. Simmons v. State, 80 Ark. App. 426, 97 S.W.3d 421 (2003). The standard of review is whether the trial court's verdict is supported by substantial evidence, which is evidence of sufficient force and character that it compels a conclusion one way or another without resorting to speculation or conjecture. Id. Here, Engi, Balough, and Killough all testified that Engi did not raise his fist or approach Moix in a physically threatening manner before Moix hit him with the guitar. This is sufficient to support the trial court's finding of delinquency.

Affirmed.

Hart and Vaught, JJ., agree.