Riley v. State

385 S.W.3d 355, 2011 Ark. App. 511, 2011 Ark. App. LEXIS 542
CourtCourt of Appeals of Arkansas
DecidedSeptember 7, 2011
DocketNo. CA CR 10-1334
StatusPublished
Cited by2 cases

This text of 385 S.W.3d 355 (Riley v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Riley v. State, 385 S.W.3d 355, 2011 Ark. App. 511, 2011 Ark. App. LEXIS 542 (Ark. Ct. App. 2011).

Opinion

DOUG MARTIN, Judge.

| jAppellant Courvoisier Riley appeals the judgment and commitment orders entered in Pulaski County Circuit Court case numbers CR06-890, in which Riley’s probation was revoked, and CR09^4179, in which Riley was convicted of aggravated robbery, aggravated residential burglary, and misdemeanor fleeing. We find no error and affirm, although we remand in part to correct a clerical error on the judgment and commitment order.

In CR06-890, Riley pled guilty on September 11, 2006, to one count of residential burglary and one count of misdemeanor theft of property. The circuit court placed Riley on probation for a term of five years. On February 28, 2007, the State filed a petition to revoke Riley’s probation, alleging that he had failed to report to his probation officer and failed to pay the restitution that was part of his probationary sentence. Riley entered a plea of guilty |ato the revocation charges, and the circuit court again placed Riley on five years’ probation. Among the terms of Riley’s probation was that he obey all federal and state laws.

On August 26, 2009, the State filed an amended petition for revocation, alleging that Riley had violated the terms of his probation by committing the offenses of being a felon in possession of a firearm and possession of marijuana. In addition, the State alleged that Riley had violated the terms of his probation by committing the offense of aggravated robbery.

The aggravated-robbery allegation also formed the basis of the charges in CR09-4179. In a three-count information, the State charged Riley with aggravated robbery, aggravated residential burglary, and misdemeanor fleeing. Following a bench trial on these charges on September 8, 2010, the circuit court found Riley guilty of all three counts, merging the fleeing count into the other two felonies; Riley was sentenced to ten years’ imprisonment on each of the felony offenses, to run concurrently. In addition, the court found that Riley had violated the terms and conditions of his probation and sentenced him to ten years’ imprisonment, also to run concurrently.

Riley filed timely notices of appeal from both judgment and commitment orders, and he now raises three points on appeal: 1) the evidence was insufficient in Case No. CR09-4179 to convict him of aggravated robbery and aggravated residential burglary; 2) the State failed to prove by a preponderance of the evidence in Case No. CR06-890 that Riley had committed the offenses of aggravated robbery and aggravated residential burglary; and 3) the judgment and commitment order in CR09-4179 erroneously reflects that Riley was | aconvicted of Class C felony fleeing, when he was in actuality convicted of Class C misdemeanor fleeing.

A motion to dismiss at a bench trial and a motion for a directed verdict at a jury trial are challenges to the sufficiency of the evidence. Ark. R.Crim. P. 33.1 (2009); Hinton v. State, 2010 Ark. App. 341, 2010 WL 1609611. When a defendant challenges the sufficiency of the evidence that led to a conviction, the evidence is viewed in the light most favorable to the State. Gamble v. State, 351 Ark. 541, 95 S.W.3d 755 (2003). Only evidence supporting the verdict will be considered. Hinton, supra. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Strong v. State, 372 Ark. 404, 277 S.W.3d 159 (2008). Circumstantial evidence may constitute sufficient evidence to support a conviction, but it must exclude every other reasonable hypothesis other than the guilt of the accused. Whitt v. State, 365 Ark. 580, 232 S.W.3d 459 (2006). The question of whether the circumstantial evidence excludes every other reasonable hypothesis consistent with innocence is for the trier of fact to decide. Id.

A person commits the offense of aggravated robbery if he or she commits robbery as defined in Arkansas Code Annotated section 5-12-102 (Repl.2006), and the person

(1) Is armed with a deadly weapon;
(2) Represents by word or conduct that he or she is armed with a deadly weapon; or
(3) Inflicts or attempts to inflict death or serious physical injury upon another person.

|4Ark.Code Ann. § 5-12-103(a) (Repl. 2006). Robbery, in turn, is defined in Arkansas Code Annotated section 5-12-102:

A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately after committing a felony or misdemeanor theft, the person employs or threatens to immediately employ physical force upon another person.

Arkansas Code Annotated section 5-39-204(a) (Supp.2009) provides that a person commits aggravated residential burglary if he or she commits residential burglary, as defined in Arkansas Code Annotated section 5-39-201 (Repl.2006),1 of a residential occupiable structure occupied by any person, and he or she

(1) Is armed with a deadly weapon or represents by word or conduct that he or she is armed with a deadly weapon; or
(2) Inflicts or attempts to inflict death or serious physical injury upon another person.

See also Tucker v. State, 2011 Ark. 144, 381 S.W.3d 1.

At trial, Stanley Nelson testified that, on October 13, 2009,2 Riley came to Nelson’s home and stated that he was there to repay fifteen dollars that a woman named Candy owed Nelson. Nelson stated that he had loaned Candy the money and had been holding her DVD player as collateral until she could repay him. Nelson told Riley to go to the back door, and when Nelson met Riley there with the DVD player, Riley had his wallet out “like he was Infixing to hand me” the fifteen dollars. Instead, Riley stepped into the house, walked into the kitchen, and pulled a sawed-off shotgun from under his dark, hooded jacket.

Riley pointed the shotgun at Nelson’s head and demanded that Nelson give him all his money. Nelson told Riley that he had no money, and Riley “jacked” the shotgun, but the shell jammed in the chamber. When Nelson saw that the gun had jammed, he grabbed the barrel of the shotgun and began “tussling” with Riley. As they wrestled, the window in the back door was broken and a hole was punched in the wall nearby. Nelson yelled for his female guest to call 911; she did but was too afraid to go outside to find out the house number. Nelson told Riley that 911 had been called, and Riley ran out the door, leaving his wallet and a bullet casing lying on the ground.

As soon as Riley left, Nelson called 911 again and gave the police his address. After the police arrived, Nelson received a phone call from Riley. Nelson put the phone on speaker, and the officers were able to hear Riley say, “I know where your momma lives.

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Related

Newton v. State
2016 Ark. App. 1 (Court of Appeals of Arkansas, 2016)
Sizemore v. State
2015 Ark. App. 728 (Court of Appeals of Arkansas, 2015)

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Bluebook (online)
385 S.W.3d 355, 2011 Ark. App. 511, 2011 Ark. App. LEXIS 542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riley-v-state-arkctapp-2011.