Kendrick v. State
| Decision Date | 19 February 1992 |
| Docket Number | No. CACR,CACR |
| Citation | 823 S.W.2d 931,37 Ark.App. 95 |
| Parties | Derrick KENDRICK, Appellant, v. STATE of Arkansas, Appellee. 91-143. |
| Court | Arkansas Court of Appeals |
William R. Simpson, Public Defender, Little Rock, for appellant.
Teena L. White, Asst. Atty. Gen., Little Rock, for appellee.
Appellant was convicted of attempt to commit burglary, aggravated assault, and fleeing. He raises two points on appeal. We affirm.
On September 21, 1990, two Little Rock police officers responded to a call that a burglary was in progress at a residence located at 2426 Louisiana Street. The officers split up and walked around to the back of the house where they found appellant kneeling by a back door. Officer Davis testified that he saw appellant with something in his hand trying to pry open the door. After seeing Officer Davis, appellant got up and walked in the direction of where Officer Smith was positioned. Officer Smith yelled at the appellant to stop and drop the knife he was carrying. Officer Smith testified that appellant ran but was unable to escape as he was positioned between both officers. Appellant denied having been told to drop the knife and testified that he did not have a knife at this time.
Officer Davis testified that when appellant apparently realized he was not able to escape, he "took a step toward me and then wheeled around toward Officer Smith with the knife pointed out in what we conceived as a threatening manner," so as to "cut or stab somebody." Officer Smith testified that appellant had the knife pointed toward the officer and that, "it appeared as though he was fixing to lunge forward with it." Officer Smith hit appellant with his baton, knocking him to the ground. He was apprehended and the knife was confiscated.
Appellant contends that there was insufficient evidence to sustain his conviction for attempted burglary. In a challenge to the sufficiency of the evidence, the appellate court reviews the evidence in the light most favorable to the appellee and sustains the conviction if there is any substantial evidence to support it. Hutcherson v. State, 34 Ark.App. 113, 806 S.W.2d 29 (1991). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resort to speculation or conjecture. Ward v. State, 35 Ark.App. 148, 816 S.W.2d 173 (1991). The fact that evidence is circumstantial does not render it insubstantial. Sweat v. State, 25 Ark.App. 60, 752 S.W.2d 49 (1988). When circumstantial evidence alone is relied upon, it must indicate the accused's guilt and exclude every other reasonable hypothesis. Ward, 35 Ark.App. 148, 816 S.W.2d 173. It is only when the circumstantial evidence leaves the jury solely to speculation and conjecture that it is insufficient as a matter of law. Id.
Arkansas Code Annotated § 5-3-201(a)(2) (1987) states that a person attempts to commit an offense if he purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as he believes them to be.
Arkansas Code Annotated § 5-39-201 (1987) states that a person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.
There does not appear to be any rational reason to explain why appellant was kneeling by the back door of the victim's home at night prying at the door with a knife and when approached, attempting to flee except that he was attempting to commit burglary. The fundamental theory, in absence of evidence of other intent or explanation for breaking or entering an occupiable structure at night, is that the usual object or purpose of burglarizing an occupiable structure at night is theft. Cristee v. State, 25 Ark.App. 303, 757 S.W.2d 565 (1988). The actions of an accused fleeing from the scene of a crime is a circumstance that may be considered with other evidence determining guilt. Id.
The existence of criminal intent or purpose is a question of fact to be determined by the trier of fact when criminal intent may be reasonably inferred from the evidence. Id. The trier of fact resolves any conflicts in testimony and determines the credibility of the witnesses, and its conclusion on credibility is binding on the appellate court. Sweat, 25 Ark.App. 60, 752 S.W.2d 49. We find there is substantial evidence to confirm appellant's attempted burglary conviction.
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...seldom be positively known to others, so it ordinarily cannot be shown by the facts and circumstances in evidence. Kendrick v. State, 37 Ark. App. 95, 823 S.W.2d 931 (1992). Since intent cannot ordinarily be proven by direct evidence, the jurors are allowed to draw upon their common knowled......
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