FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION [NOS.
60CR-15-3677, 60CR-10-3907, and 60CR-13-1218] HONORABLE LEON
William R. Simpson, Jr., Public Defender, Llewellyn J.
Marczuk, Deputy Public Defender, by: Andrew Thornton, Deputy
Public Defender, for appellant.
Rutledge, Att'y Gen., by: Jason Michael Johnson,
Ass't Att'y Gen., for appellee.
BRANDON J. HARRISON, Judge
Allan Williams appeals his conviction for residential
burglary and the revocation of his suspended imposition of
sentence (SIS) in two other cases based on the commission of
the residential burglary. He also asserts that the circuit
court committed errors in sentencing. We reverse his
conviction. We also reverse the revocation of his SIS and
remand for further proceedings.
number CR-10-3907, Williams pled guilty to possession of
cocaine with intent to deliver and possession of marijuana
and was sentenced to five years' probation. In November
2012, the State petitioned to revoke Williams's probation
because he had failed to make monthly visits to his probation
officer and failed to pay fines and court costs. Williams
again pled guilty and was sentenced to six years'
probation. In August 2013, the State again petitioned to
revoke Williams's probation because he had failed to
comply with court-ordered drug treatment and failed to pay
fines and court costs. Again, Williams pled guilty and was
sentenced to three years' SIS.
number CR-13-1218, Williams pled guilty to possession of
cocaine, possession of drug paraphernalia, and possession of
marijuana with intent to deliver and was sentenced to an
aggregate term of eighteen months' imprisonment with
three years' SIS.
November 2015, Williams was charged with aggravated
residential burglary, aggravated robbery, theft of property,
and possession of firearms by certain persons (CR-15-3677).
Regarding the aggravated residential burglary, the State
alleged that Williams, while armed with a handgun, had
unlawfully entered the home of James Lawrence "with the
purpose of committing therein any offense punishable by
imprisonment." The State also asserted that Williams was
a habitual offender and that a firearm-sentencing enhancement
should be applied. Also in November 2015, the State
petitioned to revoke Williams's SIS in CR-10-3907 and
CR-13-1218 based specifically on the commission of these new
pretrial hearing in August 2016, Williams moved to dismiss
the charge of aggravated residential burglary because it was
insufficiently drafted. In response, the State moved to
"orally amend that the Defendant committed the
aggravated residential burglary with the purpose of
committing theft of property there within the
circuit court convened a bench trial in October 2016. James
Lawrence testified that on 10 September 2015, he was at home
with his wife when a man knocked on their front door and
asked for some water. Lawrence filled the water jug, returned
to the front door, and gave the jug to the man; at that
point, the man pulled out a gun, and the two men started
fighting. Lawrence's wife, Courtney, joined in the fight,
kicking the man. The man eventually ran away, and Lawrence
and his wife went back into the house. They found a man whom
Lawrence identified as Williams in their bedroom; Lawrence
had grown up with Williams and dated his sister. Lawrence
said that Williams pointed a gun at him and said,
"I'll kill everybody in here." Lawrence also
said that after Williams had left, he noticed that $300 was
missing from his dresser.
Lawrence also testified that on 10 September 2015, a man came
to the door, asked for some water, and later pulled a gun and
started fighting with her husband on the front porch. She
said that she went outside to help her husband and that the
man ran away. She then went back into the house and found
Williams in her bedroom, and Williams threatened her and her
husband with a gun. She also said that Williams took $300
from the dresser, but she admitted that she did not see him
Jones, a detective with the North Little Rock Police
Department, testified that Courtney and James identified
Williams as a suspect and identified Williams in a
photographic lineup. Based on this identification, a warrant
was prepared for Williams's arrest, and he was arrested
and brought in for questioning on 2 October 2015. The State
then played an audio recording of Jones's interview with
Williams; in that interview, Williams said that he had given
Lawrence $3000 to buy marijuana and that because he never
received the marijuana, he had gone to Lawrence's house
to get his money back. According to Williams, he did not have
a gun, and Lawrence gave him $3000 willingly. Williams
claimed to have no knowledge of the fight that had taken
place at the front door just before his arrival.
the State rested, Williams moved to dismiss the charge of
aggravated residential burglary:
[T]he State has alleged in the felon[y] information that Mr.
Williams did enter or remain in the residential occupiable
structure of James Lawrence with the purpose of committing
therein a theft while armed with a deadly weapon. . . . [I]t
is not allowable under the Rules of Evidence to draw one
inference from another or to indulge presumption upon
presumption to establish a fact. . . . No one saw Mr.
Williams take any money. No one saw Mr. Williams commit a
theft. That must be the underlying charge with the State
agreeing they cannot further amend to conform proof. . . .
They failed, even at the State's best light, to prove
that there's a theft.
Williams also moved to dismiss the charges of aggravated
robbery, theft of property, and possession of a firearm by
certain persons. The court dismissed the charge of possession
of a firearm by certain persons; on the charge of aggravated
residential burglary, the court stated,
[O]ne of the things on Count 1 that, sure, we don't have
anybody-neither one of the victims testified that they saw
him take the money. Neither one. And [defense counsel] asked
you more than once, is that what you're proceeding on.
And you said yes before he got started.
Now I can jump with all this other stuff that, yeah, he went
in the house. I believe he went into the house. And he just
didn't go in there just to say I showed up with someone.
. . . And I don't know where I'm going with it at
this time, so I'm not sure that I'm right, that
I'm going to grant your motion because I'm making a
jump here. The problem ...