Norton v. State, CR

• Decision Date: 15 December 1980
• Docket Number: No. CR,CR
• Citation: 271 Ark. 451,609 S.W.2d 1
• Parties: Freddie NORTON, Appellant, v. STATE of Arkansas, Appellee. 80-178.
• Court: Arkansas Supreme Court

Page 1

609 S.W.2d 1

271 Ark. 451

Freddie NORTON, Appellant, v. STATE of Arkansas, Appellee.

No. CR 80-178.

Supreme Court of Arkansas.

Dec. 15. 1980.

E. Alvin Schay, State Appellate Public Defender by Jackson Jones, Deputy Public Defender, Little Rock, for appellant.

Steve Clark, Atty. Gen., by Joseph H. Purvis, Deputy Atty. Gen., Little Rock, for appellee.

MAYS, Justice.

The only question presented by this appeal is whether the evidence is sufficient to sustain a conviction of burglary.

On the evening of July 25, 1979, shortly after the sound of breaking glass was heard, appellant, Freddie Norton, was observed opening from the inside the front door of an office building, which had been secured for the night, and speaking to two acquaintances who were walking by. When later that evening the owner of the building discovered the front door open, a window broken out, glass on the floor, and her window drapes down, a police investigation ensued. It was learned that nothing was taken from the office building, although the only potential valuables located in the building were boxes of undisclosed items belonging to two dentists who were in the process of relocating. The investigation also revealed that on the very same evening a house located near the office building had been illegally entered, apparently through a bedroom window, and several valuables taken.

The appellant was arrested and charged with two counts of burglary and one count of theft of property. The same person who had seen appellant in the doorway of the office building also testified that she saw a man from behind who looked like appellant standing on a bucket beneath the window of the home which had been burglarized. The jury acquitted appellant on the charge of burglary of the home and the theft of property but convicted him of burglary of the office building. Since appellant had also been charged under the Habitual Criminal Act, Ark.Stat.Ann. § 41-1001 et seq. (Repl.1977), the jury imposed a sentence of 15 years after finding that he had been convicted of at least two previous felonies.

On appeal of a criminal conviction, we view the evidence in the light most favorable to the state and affirm if there is substantial evidence to support the conviction. Lunon v. State, 264 Ark. 188, 569 S.W.2d 663 (1978). Evidence is substantial if it is of sufficient force and character to compel a conclusion with reasonable and material certainty. Jones v. State, 269 Ark. --- (1980), 598 S.W.2d 748.

A person commits burglary when he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein an offense punishable by imprisonment. Ark.Stat.Ann. § 41-2002 (Repl.1977). Appellant primarily contends that his burglary conviction should be reversed because there is no evidence other than that of his entry which establishes he intended to commit an offense punishable by imprisonment. Since a specific intent, as well as illegal entry, are both elements of the crime of burglary, appellant argues that independent proof of each is required and that the existence of one cannot be presumed from the existence of the other.

The appellant's argument is grounded in the United States Supreme Court decision of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). There, it was held that the Due Process Clause of the 14th Amendment requires that the prosecution prove beyond a reasonable doubt every element of the crime charged. The Court invalidated a Maine homicide statute which implied malice aforethought in any criminal prosecution of an intentional homicide unless the defendant established by the...