FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION [NO.
60CR-14-3060] HONORABLE JAMES LEON JOHNSON, JUDGE
William R. Simpson, Jr., Public Defender, by: Clint Miller,
Deputy Public Defender, for appellant.
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
MARK KLAPPENBACH, JUDGE
Clarence Whitworth appeals his conviction for attempted
residential burglary following a bench trial in Pulaski
County Circuit Court. On appeal, Whitworth argues that the
trial court erred in denying his motion for dismissal that
challenged the sufficiency of the State's evidence that
his intent upon entering the residence was to commit theft.
Whitworth also asserts that the sentencing order incorrectly
classifies this offense as a Class B felony, when the correct
classification is a Class C felony. The State contends that
there is sufficient evidence from which the trial court could
find that appellant entered with the purpose to commit theft
inside the residence, but it concedes that the sentencing
order is incorrect as to the classification of the offense.
We reverse the conviction, rendering the classification issue
appeal, the appellate courts treat a motion for directed
verdict or dismissal as a challenge to the sufficiency of the
evidence. Anderson v. State, 2011 Ark. 461, 385
S.W.3d Cite as 2017 Ark.App. 462 214. The appellate court
determines whether the verdict is supported by substantial
evidence, direct or circumstantial. Id. Substantial
evidence is evidence that is forceful enough to compel a
conclusion one way or the other beyond suspicion or
conjecture. Id. The evidence is viewed in the light
most favorable to the verdict, and only evidence supporting
the verdict will be considered. Starling v. State,
2016 Ark. 20, 480 S.W.3d 158. Variances and discrepancies in
the proof go to the weight or credibility of the evidence and
are matters for the fact-finder to resolve. 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. Id.
Accordingly, when there is evidence of a defendant's
guilt, even if it is conflicting, it is for the fact-finder
to resolve, not the court. Id.
evidence may constitute substantial evidence to support a
conviction. Brunson v. State, 368 Ark. 313, 245
S.W.3d 132 (2006). Guilt can be established without direct
evidence and evidence of guilt is not less because it is
circumstantial. Id. Circumstantial evidence is
substantial when it excludes every other reasonable
hypothesis than that of guilt. Id. We will disturb
the fact-finder's determination only if the evidence did
not meet the required standards so that the fact-finder had
to resort to speculation and conjecture to reach its verdict.
Richardson v. State, 2014 Ark.App. 679, 449 S.W.3d
evidence at trial, viewed most favorably to the State,
revealed the following. Appellant was charged with attempted
residential burglary of the residence of Chanel Johnson,
located at 2624 Dorchester Drive in Little Rock, on June 23,
2014. The State alleged that appellant attempted
to enter or remain unlawfully in the house with the purpose
of committing a theft inside the house. Chanel Johnson was
the sole witness for the State. She testified that she knew
appellant as her mother's boyfriend. She said that
appellant had been to the house many times before her mother
and stepfather's divorce was finalized in May 2014 and
that he was very familiar with the house. Her mother and
appellant were in a dating relationship before the divorce
was granted. Her mother had since moved out of the house, and
Johnson assumed that her mother was living with appellant.
Johnson, who graduated high school in May 2014, continued to
live with her stepfather. She initially testified that she
did not believe her mother had any property remaining in the
house after the divorce, but then she remembered telling
police that her mother did. She said that after the divorce,
her mother was not supposed to be in the house, nor was
appellant given permission by her or her stepfather to be in
testified that on June 23, 2014, she was home, and at around
11:00 a.m., she heard a "loud thud" and "kept
hearing a couple of sounds." She went to the kitchen to
investigate, and she saw appellant with his arms and head
inside the window; he was carrying a bag she approximated to
be six inches in size. She never saw him all the way inside
the residence but rather saw him in the window. Johnson began
to yell and curse, asking what appellant was doing, at which
point appellant jumped out of the window and fled. Johnson
explained that the kitchen window had problems with closing,
which someone who had been to the house would have known.
testified that he was working all that day and could not have
committed this crime. Appellant's former employer
testified that appellant had worked for him but that he had
terminated appellant on June 23, 2014. Appellant stated that
he had been to the house before, that he helped his
girlfriend (Johnson's mother) move her things out of the
house, that if he had needed to get inside the house he had
access to his girlfriend's key, and that the only items
of value in the house were too big (washer, dryer, big-screen
television) to carry in a small bag anyway.
counsel moved to dismiss the charge, specifically challenging
the State's evidence of his intent to commit a theft in
the residence, but the trial court denied the motion and
found appellant guilty of attempted residential burglary.
This appeal followed.
Code Annotated section 5-39-201(a)(1) (Repl. 2013) states
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. Arkansas Code Annotated section
5-3-201(a)(2) recites that a person attempts to commit an
offense if he or she 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 the person believes
them to be. Here, the alleged offense was theft of property
while illegally in the residence, which was the offense the
State had to show was intended to be committed. See
Washington v. State, 268 Ark. 1117, 599 S.W.2d 408 (Ct.
App. 1980). Theft of property is defined in Arkansas Code
Annotated section 5-36-103(a)(1) as knowingly taking or
exercising unauthorized control over or making an
unauthorized transfer of an interest in the property of
another person with the purpose of depriving the owner of the
can be established by circumstantial evidence, and often this
is the only type of evidence available to show intent.
Holland v. State, 2017 Ark.App. 49, 510 S.W.3d 311.
Specific intent to commit a crime inside the structure cannot
be inferred, however, solely from proof of an illegal entry.
Forgy v. State, 302 Ark. 435, 790 S.W.2d 173 (1990).
The State cannot shift to the defendant the burden of
explaining his unlawful entry but must also establish the
defendant's intent. Norton v. State, 271 Ark.
451, 609 S.W.2d 1 (1980). The fact-finder does not, and need
not, view each fact in isolation, but rather may consider the
evidence as a whole. Harjo v. State, 2017 Ark.App.
337, 522 S.W.3d 839; Williams v. State, 96 Ark.App.
277, 241 S.W.3d 290 (2006).
argues that even if the evidence is substantial that he
illegally entered the residence, there is no substantial
evidence that he did so with the purpose of committing
therein a theft of property. We agree. The intent to commit
an offense may be inferred from the defendant's conduct
and the surrounding circumstances. Durham v. State,
320 Ark. 689, 899 S.W.2d 470 (1995); S.C. v. State,
2015 Ark.App. 344, 464 S.W.3d 477. The facts proved incident
to an unlawful entry must show circumstances of such
probative force as to reasonably warrant the ...