Appeal
From The Pulaski County Circuit Court, Seventh Division [No.
60CR-14-961] Honorable Barry Sims, Judge
William R. Simpson, Jr., Public Defender, by: Clint Miller,
Deputy Public Defender, for appellant.
Leslie
Rutledge, Att'y Gen., by: Jacob H. Jones, Ass't
Att'y Gen., for appellee.
PHILLIP T. WHITEAKER, Judge.
Appellant
Henry Williams was convicted by a Pulaski County jury of one
count of first-degree battery; his twenty-five-year sentence
was enhanced by an additional three years under Arkansas Code
Annotated section 5-4-702 (Repl. 2013), which provides for
enhanced penalties for offenses committed in the presence of
a child.[1] On appeal, Williams argues that the
circuit court should have granted his motion for directed
verdict on the sentence enhancement because the State failed
to prove that he committed the offense in the presence of a
child. We affirm.
A
motion for a directed verdict is a challenge to the
sufficiency of the evidence. Carter v. State, 2019
Ark.App. 57, S.W.3d . 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 the
evidence that supports the verdict. Taylor v. State,
2017 Ark.App. 331, 522 S.W.3d 844; Ealy v. State,
2017 Ark.App. 35, 511 S.W.3d 355. We affirm a conviction if
substantial evidence exists to support it. Taylor,
supra. Substantial evidence is that which is of
sufficient force and character that it will, with reasonable
certainty, compel a conclusion one way or the other, without
resorting to speculation or conjecture. Id.
Substantial
evidence can be either direct or circumstantial. Chatmon
v. State, 2015 Ark. 28, 467 S.W.3d 731. Direct evidence
is evidence that proves a fact without resorting to
inference, such as when a witness testifies as to what he or
she saw, heard, or experienced. Id. Circumstantial
evidence is evidence from which a fact may be inferred.
Id. Evidence of guilt is not less because it is
circumstantial. Id. Further, circumstantial evidence
may constitute substantial evidence to support a conviction.
Holland v. State, 2017 Ark.App. 49, 510 S.W.3d 311.
On
appeal, Williams does not challenge the sufficiency of the
evidence supporting his battery conviction. His only argument
concerns the sentence enhancement. As a result, we set forth
the facts that support his conviction as necessary to give
context to his argument.
Williams
shot Jacent Winston three times in the legs while Winston was
washing his truck in the front yard of his home. At the time
of the shooting, eight children ranging in ages from eight to
seventeen were at Winston's home awaiting a birthday
party for the twelve-year-old daughter of Winston's
girlfriend. Before the actual shooting, Williams engaged
Winston in conversation. Williams informed Winston that he
lived in a house behind Winston's, and Williams stated
that he had been watching Winston "for a long
time." During the conversation, Winston's
daughter[2] came outside, spoke to Winston in the
presence of Williams, and returned to the home. Immediately
thereafter, Williams pointed a gun at Winston's head.
Winston tried to run around his vehicle but was shot by
Williams and fell to the ground. After Winston fell, Williams
attempted to shoot him in the head, but his gun either jammed
or ran out of bullets. Hearing the gunfire, the children came
out of the house onto the front porch. According to Winston,
Williams then "looked up at the kids and he smiled and
he walked away real slowly."
As is
pertinent to this appeal, at the close of the State's
case, Williams moved for directed verdict on the enhancement
for committing the offense in the presence of a
child.[3]Williams argued that the State did not call
any of the children who were present at the time of the
shooting to testify and thus failed to prove that he knew
that any children were present. The circuit court denied his
motion, citing Winston's testimony that the children had
been on the porch.
On
appeal, Williams asserts that this ruling was erroneous. More
specifically, Williams contends that the State failed to
introduce evidence that would have allowed the jury to infer
that he had actual, personal knowledge that there was someone
under sixteen years of age at the crime scene. His argument
is premised on the language of section 5-4-702, which
provides, in pertinent part, that "[a]ny person who
commits . . . assault or battery, Ark. Code Ann. §
5-13-201 et seq., . . . may be subject to an enhanced
sentence of an additional term of imprisonment of not less
than one (1) year and not greater than ten (10) years if the
offense is committed in the presence of a child."
"Child" means "a person under sixteen (16)
years of age." Ark. Code Ann. § 5-4-701(1) (Repl.
2013). "In the presence of a child" means "in
the physical presence of a child or knowing or having reason
to know that a child is present and may see or hear
an act." Ark. Code Ann. § 5-4-701(2).
Williams
argues that the State failed to present evidence that he had
"actual, personal knowledge that anyone under sixteen
years of age was present when he shot Jacent Winston."
Citing Sansevero v. State, 345 Ark. 307, 45 S.W.3d
840 (2001), and Hubbard v. State, 20 Ark.App. 146,
725 S.W.2d 579 (1987), Williams contends that the State was
required to present proof that he had actual, subjective
knowledge that any person at the crime scene was under
sixteen years of age. We cannot agree with Williams's
argument.
Sansevero
and Hubbard involved second-degree-battery charges
brought pursuant to Arkansas Code Annotated section
5-13-202(a)(4). A defendant charged under section
5-13-202(a)(4) must "knowingly . . . cause[ ] physical
injury to one he knows to be sixty years of age or
older or twelve years of age or younger." (Emphasis
added.) Both the supreme court in Sansevero and this
court in Hubbard interpreted the phrase "knows
to be" and held that when an offense requires that a
defendant act knowingly with respect to the age of the
victim, proof of the defendant's actual, subjective
knowledge of the victim's age is an essential element of
the offense that must be proved beyond a reasonable doubt.
Sansevero, 345 Ark. at 312, 45 S.W.3d at 843;
Hubbard, 20 Ark.App. at 148, 725 S.W.2d at 580.
Here,
however, the enhancement statute requires proof that the
defendant knew or hadreason to know that a
child was present at the commission of the offense. The ...