FROM THE DESHA COUNTY CIRCUIT COURT [NO. 21ACR-17-79]
HONORABLE SAM POPE, JUDGE.
Law Office, by: Gary W. Potts, for appellant.
Rutledge, Att'y Gen., by: Michael L. Yarbrough, Ass't
Att'y Gen., for appellee.
LARRYD. VAUGHT, JUDGE.
Ronald Thompson appeals from his conviction of second-degree
battery and aggravated residential burglary for which he was
sentenced to six years' and ten years' imprisonment,
respectively, to be served consecutively, along with $20,000
in restitution. He contends that the evidence is insufficient
to support his convictions because the State failed to negate
his justification of self-defense. Because his argument is
not preserved for appeal, we affirm.
August 4, 2017, Thompson severely beat James Burk in his home
after Burk had shot Thompson with a pellet rifle. Thompson
and Burk are neighbors and had been friends for approximately
sixteen years prior to the altercation. There is a dispute
about how the altercation began.
testified that he owed Thompson eighty dollars. He said that
on the night of August 4, he was asleep when the window
air-conditioning unit in his home came crashing inside the
house. Burk said he saw Thompson standing outside, and the
two were "mouthing" at each other. Burk told
Thompson if he came inside, Burk would shoot him. Burk said
Thompson broke down the front door and came inside, so Burk
shot Thompson. Burk tried to reload the rifle, but Thompson
wrestled it away and began beating Burk with it. At some
point, Thompson stopped and took Burk to the hospital. Burk
suffered a nondisplaced fracture to his sternum, considerable
swelling to his face due to a broken upper and lower jaw, a
broken nasal bone, and a severe injury to his right eye.
testified that Burk owed him eighty dollars and told him
(Thompson) to come to Burk's house to get it. Thompson
said when he arrived, Burk would not answer the door.
Thompson started to leave when Burk opened the front door,
ran out, pointed a rifle at Thompson, and screamed at him.
Thompson said he walked toward Burk, and when he was about
two to three feet away, Burk shot him in the neck. Thompson
said he thought Burk was going to shoot again, so Thompson
tackled Burk, they fell over into the house, and Thompson
tried to get the rifle. Thompson said he hit Burk at most
four times with his hand. When he saw that Burk was not
fighting back, Thompson stopped hitting Burk, helped him to
his truck, and Thompson drove Burk to the hospital.
was charged with first-degree battery and aggravated
residential burglary. At trial, he raised the defense of
justification. The jury convicted Thompson of the
lesser-included offense of second-degree battery and
aggravated residential burglary. On appeal, Thompson argues
that the evidence is insufficient to support his convictions.
motion for a directed verdict is a challenge to the
sufficiency of the evidence. Draft v. State, 2016
Ark.App. 216, at 2, 489 S.W.3d 712, 714. When sufficiency is
challenged on appeal from a criminal conviction, we consider
only that proof that supports the verdict. Id. at
2–3, 489 S.W.3d at 714. We view that evidence and all
reasonable inferences deducible therefrom in the light most
favorable to the State. Id. at 3, 489 S.W.3d at 714.
We will affirm if the finding of guilt is supported by
substantial evidence. Id., 489 S.W.3d at 714.
Evidence is substantial if it is of sufficient force and
character that it will, with reasonable certainty, compel a
conclusion one way or the other without requiring resort to
speculation or conjecture. Id., 489 S.W.3d at 714.
The weight of the evidence and credibility of the witnesses
are matters for the fact-finder not for the circuit court on
a directed-verdict motion or this court on appeal.
Id., 489 S.W.3d at 714.
admits that he beat Burk, but he contends that he acted in
self-defense and that the State failed to negate his
justification of self-defense. He argues that there was only
one weapon involved in the incident, and it was undisputedly
used by Burk, who was the initial aggressor and who shot
Thompson in the neck; there was blood on the front porch,
which established that the incident began outside; Thompson
used just enough force to end the incident; and Thompson
drove Burk to the hospital.
Code Annotated section 5-2-607(a) (Supp. 2017) provides that
the use of deadly physical force in defense of a person is
justified in certain circumstances. Justification becomes a
defense when any evidence tending to support its existence is
offered to support it. Draft, 2016 Ark.App. 216, at
5, 489 S.W.3d at 715. By statute, a justification, such as
self- defense, is considered an element of the offense and,
once raised, must be disproved by the prosecution beyond a
reasonable doubt. Id., 489 S.W.3d at 715.
cannot address Thompson's argument that the evidence is
insufficient to negate the conclusion that he acted in
self-defense because it was not preserved for appeal. In
order to preserve for appeal any argument pertaining to the
sufficiency of the evidence to support a jury verdict in a
criminal case, the defendant must make a specific motion for
a directed verdict of acquittal at the close of the evidence
presented by the prosecution and again at the close of all of
the evidence. Id. at 4–5, 489 S.W.3d at 715
(citing Ark. R. Crim. P. 33.1(a) & (c)). The motion must
advise the circuit court of the exact element that the
defendant contends the State has failed to prove.
Id. at 5, 489 S.W.3d at 715. The failure to make the
challenge at the times and in the manner required by the rule
will constitute a waiver of any question pertaining to the
sufficiency of the evidence. Id., 489 S.W.3d at 715
(citing Ark. R. Crim. P. 33.1(c)).
close of the State's evidence and again at the close of
all the evidence, counsel for Thompson ...