Cite as 2025 Ark. App. 224 ARKANSAS COURT OF APPEALS DIVISION III No. CR-24-304
MINOR CHILD Opinion Delivered April 16, 2025 APPELLANT APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT V. [NO. 23JV-24-7]
STATE OF ARKANSAS HONORABLE TROY B. BRASWELL, APPELLEE JR., JUDGE
AFFIRMED
BART F. VIRDEN, Judge
Minor Child (MC) appeals the Faulkner County Circuit Court’s decision
adjudicating him delinquent for committing second-degree battery, criminal mischief,
resisting arrest, third-degree assault, and disorderly conduct. He argues that there was
insufficient evidence to support a delinquency adjudication regarding the third-degree-
assault charge. We affirm.
I. Relevant Facts
On July 26, 2023, the State filed a delinquency petition alleging that MC committed
theft of property (case number 23JV-23-238). The petition was nolle prossed on November
29, and MC was placed on probation. On January 8, 2024, the State issued a delinquency
petition alleging that MC committed second-degree battery, criminal mischief, resisting arrest, third-degree assault, and disorderly conduct as well as a petition to revoke MC’s
probation.
A combined adjudication and revocation hearing was held on January 31. Alyson
Smith testified that on December 18, 2023, she was working as the general manager of a
Conway Burger King when MC entered the restaurant. MC was talking on the phone and
appeared to be upset. Smith recalled that MC asked if Burger King was hiring, and she
informed him that this location was hiring. MC began yelling about an “Impossible Burger”
and asked Smith to serve him. Smith walked away from MC toward the wall near the
bathroom area and asked him if he could “tone it down a bit.” Smith told her daughter to
give her the phone “because he was being very loud,” and Smith told MC that she was
refusing him service. MC then knocked the cookie display off the counter area, shattering
it, and threw his milkshake at Smith. Smith’s hair, face, neck, and clothes were “covered” in
the milkshake. MC then left the restaurant in an agitated state. Shortly thereafter, MC was
approached by Officer Steve Pointer of the University of Central Arkansas Police
Department, who saw MC walking on Donaghey Avenue shouting to himself. Officer
Pointer positioned his patrol vehicle next to MC, and MC verbally abused Pointer and
reached into his (MC’s) pocket. Officer Pointer placed MC in handcuffs for disorderly
conduct, and MC spat on the officer’s leg and continued verbally abusing him. Conway
Police Officer Samuel McCormack confirmed to Officer Pointer that MC was the person
involved in the Burger King incident earlier that day. When Officer McCormack tried to
take MC’s phone from him, MC scratched Officer McCormack’s wrist, drawing blood.
2 At the close of the State’s case, the State asked to dismiss the revocation in case
number 23JV-23-238, and the court granted the request. MC moved to dismiss the third-
degree-battery charge, asserting that “[t]here’s no testimony of apprehension—on the part of
any witness” and that “some testimony of the apprehension is required.” The motion was
denied.
In the order entered the same day, the court adjudicated MC delinquent on all
charges. MC was sentenced to the Division of Youth Services and ordered to receive intensive
in-home services following his release. MC timely filed his notice of appeal, and this appeal
followed.
II. Discussion
In reviewing the sufficiency of the evidence in a delinquency case, we apply the same
standard of review as in criminal cases; that is, we view the evidence in the light most
favorable to the State, considering only the proof that tends to support the finding of
delinquency. T.S. v. State, 2017 Ark. App. 578, at 3–4, 534 S.W.3d 160, 162. We will affirm
if the adjudication is supported by substantial evidence, which is evidence that is of sufficient
force and character to compel a conclusion one way or the other without resorting to
speculation or conjecture. Id.
Arkansas Code Annotated § 5-13-207(a) (Repl. 2024) provides that “[a] person
commits assault in the third degree if he or she purposely creates apprehension of imminent
physical injury in another person.”
3 MC appeals his delinquency adjudication for committing third-degree assault,
arguing that there was no evidence that he had the purpose of hitting Smith with the
milkshake or that Smith had any apprehension of being hit with it. MC asserts that he did
nothing aggressive or threatening before he threw the shake in Smith’s direction.
MC did not preserve his argument that there was insufficient evidence of his intent
to throw the milkshake at Smith. At the close of the State’s case, MC moved to dismiss the
third-degree-assault charge, arguing that “[t]here’s no testimony of apprehension . . . on the
part of any witness.” MC further argued, “I believe some testimony of the apprehension is
required.” MC did not argue below as he does now for the first time on appeal that there
was no evidence of his purpose to hit Smith with the milkshake. Under the Juvenile Code,
the Arkansas Rules of Criminal Procedure apply to delinquency proceedings. Ark. Code
Ann. § 9-27-325(f) (Supp. 2023). Rule 33.1(b) of the Arkansas Rules of Criminal Procedure
provides that in a nonjury trial, if a motion for dismissal is to be made, it shall be made at
the close of the evidence and shall state the specific grounds therefor. Rule 33.1(c) provides
that the failure of a defendant to challenge the sufficiency of the evidence at the times and
in the manner required in subsection (b) will constitute a waiver of any question pertaining
to the sufficiency of the evidence to support the judgment. Rule 33.1(c) further provides that
a motion for dismissal based on insufficiency of the evidence must specify the respect in
which the evidence is deficient. The appellate courts strictly construe Rule 33.1. N.L. v. State,
2017 Ark. App. 227, 519 S.W.3d 360.
4 Because MC did not challenge the sufficiency of the evidence with respect to the
element of intent, he failed to preserve this argument for our review. See P.J. v. State, 2019
Ark. App. 315, at 5, 578 S.W.3d 307, 310.
We now turn to MC’s argument that there was no evidence that Smith had any
apprehension of imminent physical injury; thus, there was insufficient evidence that he
committed third-degree assault. MC points to the evidence presented at the hearing that
Smith recorded the incident with her phone, arguing that she must not have been
apprehensive if she was recording him rather than protecting herself or her phone. MC
contends that Smith moved away from him only because he was being loud, not because she
was apprehensive of imminent physical injury. MC also asserts that “the cup landed far from
[Smith]” and notes that there was no testimony that he verbally threatened her, had an
“aggressive posture,” or used a weapon. MC concedes that knocking over the cookie display
and throwing the milkshake were two aggressive acts; however, he contends that both events
“happened almost simultaneously.” MC’s argument is not well taken.
Essentially, MC asks this court to reweigh the evidence in his favor and reach a result
contrary to that of the circuit court. We decline to do so. Instead, this court’s responsibility
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Cite as 2025 Ark. App. 224 ARKANSAS COURT OF APPEALS DIVISION III No. CR-24-304
MINOR CHILD Opinion Delivered April 16, 2025 APPELLANT APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT V. [NO. 23JV-24-7]
STATE OF ARKANSAS HONORABLE TROY B. BRASWELL, APPELLEE JR., JUDGE
AFFIRMED
BART F. VIRDEN, Judge
Minor Child (MC) appeals the Faulkner County Circuit Court’s decision
adjudicating him delinquent for committing second-degree battery, criminal mischief,
resisting arrest, third-degree assault, and disorderly conduct. He argues that there was
insufficient evidence to support a delinquency adjudication regarding the third-degree-
assault charge. We affirm.
I. Relevant Facts
On July 26, 2023, the State filed a delinquency petition alleging that MC committed
theft of property (case number 23JV-23-238). The petition was nolle prossed on November
29, and MC was placed on probation. On January 8, 2024, the State issued a delinquency
petition alleging that MC committed second-degree battery, criminal mischief, resisting arrest, third-degree assault, and disorderly conduct as well as a petition to revoke MC’s
probation.
A combined adjudication and revocation hearing was held on January 31. Alyson
Smith testified that on December 18, 2023, she was working as the general manager of a
Conway Burger King when MC entered the restaurant. MC was talking on the phone and
appeared to be upset. Smith recalled that MC asked if Burger King was hiring, and she
informed him that this location was hiring. MC began yelling about an “Impossible Burger”
and asked Smith to serve him. Smith walked away from MC toward the wall near the
bathroom area and asked him if he could “tone it down a bit.” Smith told her daughter to
give her the phone “because he was being very loud,” and Smith told MC that she was
refusing him service. MC then knocked the cookie display off the counter area, shattering
it, and threw his milkshake at Smith. Smith’s hair, face, neck, and clothes were “covered” in
the milkshake. MC then left the restaurant in an agitated state. Shortly thereafter, MC was
approached by Officer Steve Pointer of the University of Central Arkansas Police
Department, who saw MC walking on Donaghey Avenue shouting to himself. Officer
Pointer positioned his patrol vehicle next to MC, and MC verbally abused Pointer and
reached into his (MC’s) pocket. Officer Pointer placed MC in handcuffs for disorderly
conduct, and MC spat on the officer’s leg and continued verbally abusing him. Conway
Police Officer Samuel McCormack confirmed to Officer Pointer that MC was the person
involved in the Burger King incident earlier that day. When Officer McCormack tried to
take MC’s phone from him, MC scratched Officer McCormack’s wrist, drawing blood.
2 At the close of the State’s case, the State asked to dismiss the revocation in case
number 23JV-23-238, and the court granted the request. MC moved to dismiss the third-
degree-battery charge, asserting that “[t]here’s no testimony of apprehension—on the part of
any witness” and that “some testimony of the apprehension is required.” The motion was
denied.
In the order entered the same day, the court adjudicated MC delinquent on all
charges. MC was sentenced to the Division of Youth Services and ordered to receive intensive
in-home services following his release. MC timely filed his notice of appeal, and this appeal
followed.
II. Discussion
In reviewing the sufficiency of the evidence in a delinquency case, we apply the same
standard of review as in criminal cases; that is, we view the evidence in the light most
favorable to the State, considering only the proof that tends to support the finding of
delinquency. T.S. v. State, 2017 Ark. App. 578, at 3–4, 534 S.W.3d 160, 162. We will affirm
if the adjudication is supported by substantial evidence, which is evidence that is of sufficient
force and character to compel a conclusion one way or the other without resorting to
speculation or conjecture. Id.
Arkansas Code Annotated § 5-13-207(a) (Repl. 2024) provides that “[a] person
commits assault in the third degree if he or she purposely creates apprehension of imminent
physical injury in another person.”
3 MC appeals his delinquency adjudication for committing third-degree assault,
arguing that there was no evidence that he had the purpose of hitting Smith with the
milkshake or that Smith had any apprehension of being hit with it. MC asserts that he did
nothing aggressive or threatening before he threw the shake in Smith’s direction.
MC did not preserve his argument that there was insufficient evidence of his intent
to throw the milkshake at Smith. At the close of the State’s case, MC moved to dismiss the
third-degree-assault charge, arguing that “[t]here’s no testimony of apprehension . . . on the
part of any witness.” MC further argued, “I believe some testimony of the apprehension is
required.” MC did not argue below as he does now for the first time on appeal that there
was no evidence of his purpose to hit Smith with the milkshake. Under the Juvenile Code,
the Arkansas Rules of Criminal Procedure apply to delinquency proceedings. Ark. Code
Ann. § 9-27-325(f) (Supp. 2023). Rule 33.1(b) of the Arkansas Rules of Criminal Procedure
provides that in a nonjury trial, if a motion for dismissal is to be made, it shall be made at
the close of the evidence and shall state the specific grounds therefor. Rule 33.1(c) provides
that the failure of a defendant to challenge the sufficiency of the evidence at the times and
in the manner required in subsection (b) will constitute a waiver of any question pertaining
to the sufficiency of the evidence to support the judgment. Rule 33.1(c) further provides that
a motion for dismissal based on insufficiency of the evidence must specify the respect in
which the evidence is deficient. The appellate courts strictly construe Rule 33.1. N.L. v. State,
2017 Ark. App. 227, 519 S.W.3d 360.
4 Because MC did not challenge the sufficiency of the evidence with respect to the
element of intent, he failed to preserve this argument for our review. See P.J. v. State, 2019
Ark. App. 315, at 5, 578 S.W.3d 307, 310.
We now turn to MC’s argument that there was no evidence that Smith had any
apprehension of imminent physical injury; thus, there was insufficient evidence that he
committed third-degree assault. MC points to the evidence presented at the hearing that
Smith recorded the incident with her phone, arguing that she must not have been
apprehensive if she was recording him rather than protecting herself or her phone. MC
contends that Smith moved away from him only because he was being loud, not because she
was apprehensive of imminent physical injury. MC also asserts that “the cup landed far from
[Smith]” and notes that there was no testimony that he verbally threatened her, had an
“aggressive posture,” or used a weapon. MC concedes that knocking over the cookie display
and throwing the milkshake were two aggressive acts; however, he contends that both events
“happened almost simultaneously.” MC’s argument is not well taken.
Essentially, MC asks this court to reweigh the evidence in his favor and reach a result
contrary to that of the circuit court. We decline to do so. Instead, this court’s responsibility
is to determine whether the evidence supporting the verdict is substantial. See Shaw v. State,
2023 Ark. App. 55, 660 S.W.3d 591; Hale v. State, 343 Ark. 62, 74, 31 S.W.3d 850, 857
(2000).
Reviewing the evidence in the light most favorable to the State, we hold there is
sufficient evidence to support MC’s adjudication of delinquency. Smith testified that MC
5 threw the milkshake “at” her, and it hit the wall close enough to her that the contents were
in her hair and on her face and clothing. As the State points out, recording the incident
could just as easily mean that Smith was afraid she would be injured by MC, and she wanted
to create a record. The trier of fact is not required to set aside common sense and need not
view each fact in isolation, but it may instead consider the evidence as a whole. Wheeler v.
State, 2017 Ark. App. 540, at 10, 532 S.W.3d 602, 609. Here, the court did not resort to
speculation or conjecture in finding MC delinquent for third-degree battery. Accordingly,
we affirm.
Affirmed.
ABRAMSON and BARRETT, JJ., agree.
Lisa-Marie Norris, for appellant.
Tim Griffin, Att’y Gen., by: James Hill, Ass’t Att’y Gen., for appellee.