Johnson v. State
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
JUDGE DAVID M. GLOVER
DIVISION IV
CACR08-969
March 18, 2009
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
SEVENTH DIVISION [CR 2007-3648]
WILBERT JOHNSON
APPELLANT
V.
HONORABLE BARRY SIMS,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
Wilbert Johnson was convicted by a Pulaski County jury of felony breaking or
entering, misdemeanor theft of property, and misdemeanor fleeing. He was sentenced to a
total of fifteen years’ imprisonment. On appeal, Johnson argues that the trial court erred
in not granting his motion for directed verdict because there was insufficient evidence to
support his conviction for breaking or entering.1 We affirm the conviction.
Alicia Benezue testified that early on the morning of August 2, 2007, she was on
the front porch of her Rosetta Street house when she saw a black male walk a bicycle up
to the rock wall at the edge of her neighbor’s house across the street, lean the bicycle on
1
Johnson concedes in his brief that he made no directed-verdict motions with respect
to the theft of property and fleeing offenses to the trial court.
the wall, and walk between the houses toward her neighbor’s tool shed in the back yard.
She said she then heard loud noises and called the police. When a police officer arrived,
Benezue showed him where the man had gone; while she was standing in the middle of
the street, she saw the man come running from the other side of the house and she
screamed, “here he is” and ran to her porch. She was unable to identify Johnson as the
person on the bicycle, but she said that the person who leaned the bicycle on the wall was
the same person who got on it and fled from the police. Benezue also identified the
bicycle found with Johnson as the one that had been placed by the wall.
Little Rock Police Officer David Caplinger testified that he responded to the
August 2, 2007 suspicious-person call, and he met with Benezue, who told him that she
had observed a man going up the driveway and that his bicycle was against the rock wall.
As Caplinger approached the driveway, he noticed a lawnmower with a leaf blower and a
telescope stacked on top of it. He said that the back gate was open and he was about to
enter the back yard when he heard Benezue yell something, and he ran toward the front
yard. Caplinger testified that as he ran back toward the street, he saw a black male run
across the driveway in front of him; Caplinger yelled for the man to stop, but the man
jumped on the bicycle and headed in a southerly direction. Caplinger gave chase on foot
and maintained constant sight of the bicyclist until an officer in a patrol car took over the
chase. Caplinger stated that although he was not present when Johnson was taken into
custody, he saw Johnson later and confirmed that he was the person who had jumped
onto the bicycle and fled.
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Officer Eric Temple of the Little Rock Police Department testified that he was
called to assist Officer Caplinger, whom he observed chasing a black male on a bicycle
southbound off Rosetta Street. Temple said that he was in his patrol car when he first
made contact with the bicycle, that he actually almost hit the black male on the bicycle,
and that he got a good look at the rider when he almost hit him. Temple identified the
rider as Johnson. Temple said that the rider crossed numerous yards and jumped curbs in
his flight from the police, and that he lost the rider when the rider crossed a pedestrian
bridge over Interstate 630, which Temple was unable to cross in his patrol car; however,
approximately five minutes later, he, Temple, again made contact with the individual on
the bicycle in the area of 13th and Brown Streets, riding southbound. Temple identified
both the bicycle and the rider as the ones that he had been chasing, and he stated that
when apprehended, Johnson was “completely drenched” with sweat from head to toe, and
that one of the bicycle tires was damaged.
Ken Bridges, the victim, testified that on August 2, 2007, his storage shed was
unlocked, and that his lawnmower, telescope, and weed eater were inside the shed when
he went to bed; however, when the police knocked on his door, he found those items
removed from his shed and in the driveway. Bridges stated that to get these items, a
person would have to move items that were in front of the gate to his back yard, open the
gate, and then enter the storage shed located in his back yard. Bridges could not say that
Johnson was the person who broke into his shed, but he said that he did not know
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Johnson and would not have given him permission to be in his back yard or in his shed or
to do anything with his lawnmower, weed eater, or telescope.
After Bridges’s testimony, the State rested and Johnson moved for a directed
verdict, arguing that the State had not proved that he was the individual who had broken
into the shed because there had been no identification of him by any of the State’s
witnesses. This motion was denied. The defense rested without calling any witnesses and
again renewed its motion for directed verdict, which was again denied. The jury then
found Johnson guilty of felony breaking or entering, misdemeanor theft of property, and
misdemeanor fleeing. He now appeals, arguing that there was insufficient evidence to
support his conviction for breaking or entering.
A motion for directed verdict is a challenge to the sufficiency of the evidence.
Simmons v. State, 89 Ark. App. 34, 199 S.W.3d 711 (2004). To determine if evidence is
sufficient, there must be substantial evidence, direct or circumstantial, to support the
verdict.
Id.
Substantial evidence is that which is of sufficient force and character to
compel a conclusion one way or the other with reasonable certainty, without speculation
or conjecture. Mayo v. State, 70 Ark. App. 453, 20 S.W.3d 419 (2000). Evidence of guilt
is not less because it is circumstantial; the evidence must exclude every other reasonable
hypothesis other than the guilt of the accused, and that is a question for the trier of fact to
decide. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). In reviewing a challenge to
the sufficiency of the evidence, this court views the evidence in the light most favorable to
the State and considers only the evidence that supports the conviction. Simmons, supra.
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Arkansas Code Annotated section 5-39-202(a)(1) (Supp. 2007) provides, in
pertinent part, that a person commits the offense of breaking or entering if, for the
purpose of committing a theft or felony, he breaks or enters into any building or structure.
In this case, Johnson does not contend that Bridges’s shed was not broken into—he argues
that no one saw him break or enter into the shed, so his conviction is based upon
speculation and conjecture. His argument is unpersuasive.
We hold that the circumstantial evidence presented by the State is sufficient to
sustain Johnson’s conviction for breaking or entering. Alicia Benezue testified that after
she watched a black male walk up the driveway of her neighbor’s house, she heard loud
noises, prompting her to call the police. She testified that the same person who arrived on
the bicycle also fled from the police on the bicycle after the police responded to her call,
and she recognized the bicycle found with Johnson as the one she had seen by the rock
wall at her neighbor’s house.
Furthermore, Officer Temple identified Johnson as the
person who was fleeing on the bicycle, stating that he almost hit him as he fled, that
Johnson was the same individual who was apprehended a short while later with the
bicycle, and that Johnson was “completely drenched” in sweat from head to toe. We hold
that this circumstantial evidence is sufficient to support Johnson’s conviction for breaking
or entering.
Affirmed.
G RUBER and M ARSHALL, JJ., agree.
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