FROM THE COLUMBIA COUNTY CIRCUIT COURT [NO. 14CR-14-2]
HONORABLE HAMILTON HOBBS SINGLETON, JUDGE
Terrence Cain, for appellant.
Rutledge, Att'y Gen., by: Amanda Jegley, Ass't
Att'y Gen., for appellee.
JOSEPHINE LINKER HART, ASSOCIATE JUSTICE.
Ray Marshall was convicted of aggravated residential burglary
by a Columbia County jury on June 17, 2015, and was sentenced
as a habitual offender to a term of life
imprisonment. For reversal, Marshall argues the circuit
court erred when it denied his motion for a directed verdict
because the State did not prove that he entered or remained
in another person's residence with the specific intent to
commit a criminal offense, nor did the State prove that he
entered or remained in another person's residence while
armed with a deadly weapon. We find no error and affirm.
November 25, 2013, Robert Paschal and two female friends,
Kelly Williams and Amy Hornaday, arrived at Paschal's
home from a previous outing. Initially, Paschal entered his
residence alone while the two women remained outside. Once
inside his house, Paschal noticed that his television and his
video-game console were out of place. The items were found on
the kitchen floor rather than in his bedroom where he had
placed them. At that time, Paschal went outside and told
Williams and Hornaday that he believed someone had broken
into his home. Both women accompanied Paschal into his home
where he called 911.
after placing the call, a man emerged from a room inside
Paschal's home with a hammer in his hand. Paschal
immediately identified this man as Kenneth Marshall. Paschal
told both women to get out of the house, and Marshall
followed the women out through the front door. Before leaving
the scene, Marshall told Paschal that he was going to come
back and kill him. At the time Marshall made this statement,
he was holding the hammer in the air over his head. Marshall
did not swing the hammer at either of the women or at
Paschal. Before the Magnolia Police Department could respond,
Marshall left Paschal's residence without further
incident. Upon arrival, Detective Colton Burks processed the
scene and discovered blood underneath a broken window in the
southeast bedroom. Additionally, a blood smear was found on
the television located on the kitchen floor. Williams,
Hornaday, and Paschal all gave statements to the police
regarding the events that took place.
trial, Williams, Hornaday, and Paschal all testified
consistently with the above stated facts. Williams also
testified that even though Marshall did not swing the hammer
at anyone present, she still "felt threatened with the
object in [Marshall's] hand." Detective Burks
testified that in addition to collecting the blood samples on
the night of November 25, 2013, he also interviewed Marshall
two days later. During the interview, Marshall admitted to
having been in the house when Paschal arrived home.
evidence regarding the blood samples was provided through the
testimony of a technician employed by the Arkansas State
Crime Lab. The testimony revealed that the blood sample taken
from below the bedroom window was tested for a DNA profile
and the result was a positive match to Kenneth Marshall
"with all signs of scientific certainty."
conclusion of the State's case-in-chief, Marshall moved
for a directed verdict on the count of aggravated residential
burglary. Marshall contended the State did not prove that he
was armed with a deadly weapon. The court denied his motion,
stating that "the jury is going to be the fact finder on
that." After the denial, Marshall took the stand. During
his testimony, Marshall denied threatening Paschal, but
admitted having been inside Paschal's house and having
been in possession of the hammer. After the defense rested,
Marshall moved to renew his motion for directed verdict.
Again, the motion was denied. The jury returned a conviction
for the charge of aggravated residential burglary.
Sufficiency of the Evidence
entire argument on appeal stems from his assertion that the
circuit court erred in denying his motion for directed
verdict. A motion for a directed verdict is treated as a
challenge to the sufficiency of the evidence. Brooks v.
State, 2016 Ark. 305, 498 S.W.3d 292. The test for
determining the sufficiency of the evidence is whether the
verdict was supported by substantial evidence, direct or
circumstantial. Id. Substantial evidence is evidence
of sufficient force and character that it compels a
reasonably certain conclusion without resorting to
speculation or conjecture. Mercouri v. State, 2016
Ark. 37, 480 S.W.3d 864. Determinations as to the credibility
of the witnesses and resolutions of any inconsistent evidence
are left to be made by the jury. Starling v. State,
2016 Ark. 20, 480 S.W.3d 158. The jury is free to believe all
or part of any witness's testimony. Id. In
reviewing a challenge to the sufficiency of the evidence, we
view the evidence in the light most favorable to the State
and consider only evidence that supports the verdict.
appeal, Marshall attempts to argue that the circuit court
erred in denying his motion for directed verdict because the
State failed in proving two separate elements of the crime of
aggravated residential burglary. In pertinent part, to be
convicted of aggravated residential burglary, a person must
have (1) committed residential burglary as defined in Ark.
Code Ann. § 5-39-201 while (2) armed with a "deadly
weapon." 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 structure any offense
punishable by imprisonment." Ark. Code Ann. §
5-39-201(a)(1) (Repl. 2013).
Marshall's argument is that the State failed to prove
Marshall committed residential burglary or
aggravated residential burglary. However, Marshall preserved
only one of those points for appeal - the argument that the
State failed to prove that he entered or remained in another
person's residence while armed with a deadly weapon.
According to the Arkansas Rules of Criminal Procedure, a
motion for a directed verdict "shall state the specific
grounds, " and "must specify the respect in which
the evidence is deficient." Ark. R. Crim. P. 33.1(a)
& (c) (2017). It is well settled that this court will not
address arguments that are raised for the first time on
appeal. Sylvester v. State, 2016 Ark. 136, ...