Walker v. State

955 S.W.2d 905, 330 Ark. 652, 1997 Ark. LEXIS 692
CourtSupreme Court of Arkansas
DecidedDecember 4, 1997
DocketCR 97-172
StatusPublished
Cited by10 cases

This text of 955 S.W.2d 905 (Walker v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walker v. State, 955 S.W.2d 905, 330 Ark. 652, 1997 Ark. LEXIS 692 (Ark. 1997).

Opinion

Donald L. Corbin, Justice.

Appellant Leslie Lee Walker appeals the order of the Sevier County Chancery Court, Juvenile Division, adjudicating him delinquent and placing him in the custody of the Division of Youth Services, with the recommendation that he be placed in the training school. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. l-2(a)(17)(iv) & (v). Appellant raises four points for reversal. We affirm.

On April 11, 1996, a petition was filed in juvenile court alleging that Appellant had committed second-degree assault against a teacher’s aide at the Lockesburg school. Prior to the hearing, the juvenile court granted Appellant’s motion for a mental evaluation to determine his mental competency to stand trial and to appreciate the wrongfulness of his conduct. A psychological report dated October 3, 1996, reflected that Appellant understood the proceedings against him, was able to assist in his own defense, was aware of the criminality of his conduct, and could have conformed his conduct to the requirements of the law at the time of the alleged incident. Appellant was diagnosed as having attention deficit hyperactivity disorder of mixed type, arithmetic learning disability, learning disorder of written expression, and conduct disorder of oppositional type.

A hearing was held on October 29, 1996, and Appellant was adjudicated delinquent for having committed the offense of second-degree assault. Appellant was placed on probation for a period of one year and was ordered to enroll in and complete the Arkansas National Guard’s Civilian Student Training Program (CSTP). Additionally, Appellant was ordered to stay away from the Lockesburg school campus and to pay thirty-five dollars court costs. The juvenile judge noted in the order that if Appellant should commit any offenses in the future, he should be charged as an adult in circuit court.

Subsequent to the hearing, the trial court became aware that Appellant’s mother had refused to sign the necessary Power of Attorney for Appellant’s placement in CSTP. Upon motion of the prosecutor, the trial court set a show cause hearing for Appellant’s mother for November 21, 1996. A hearing was held and the resulting order reflected that the trial court resentenced Appellant at the request of his mother and his attorney, placing him in the custody of the Division of Youth Services. The order reflected further that upon his release from the Division of Youth Services, Appellant was to be placed in the custody of the Department of Human Services, with the recommendation that he be placed in the training school. It is from this order that Appellant appeals.

We first consider Appellant’s argument regarding the sufficiency of the evidence, as the double jeopardy clause precludes a second trial when a judgment of conviction is reversed for insufficiency of the evidence. Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997). Although Appellant did not move for a directed verdict below, his challenge to the sufficiency of the evidence is preserved for appeal, as it is not necessary to make such a motion during a nonjury trial. See Mackey v. State, 329 Ark. 229, 947 S.W.2d 359 (1997); Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only that evidence which supports the verdict. Rains v. State, 329 Ark. 607, 953 S.W.2d 48 (1997). Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id. This court does not, however, weigh the evidence presented at trial, as this is a matter for the factfinder. Id. Nor will this court weigh the credibility of the witnesses. Id. Appellant argues that there was insufficient evidence to support the trial court’s determination that he had committed second-degree assault. We disagree.

During the hearing below, the State presented the testimony of two witnesses: Sandra McWhorter and Wanda Bishop. McWhorter, a teacher’s aide at Lockesburg school, testified that on March 5, 1996, she was trying to leave school when Appellant blocked the double doorway. She stated that she was trying to go out the left side of the door when Appellant blocked her path. She stated that she then proceeded to go out the right side of the door when Appellant pushed her from the back. She stated that she stumbled for a couple of steps on the concrete sidewalk, but that she did not actually lose her balance and fall to the ground. She stated that she was both surprised and scared by the incident.

Bishop, a teacher at Lockesburg school, testified that she had witnessed the pushing incident. She stated that Appellant was inside the double doorway and that he had the door blocked with his arms spread. She stated that McWhorter tried to exit the building on the first side, but that Appellant would not let her pass. She stated that McWhorter then went to the right side of the door and barged through, and that Appellant then turned around and pushed McWhorter with his right hand. She stated that McWhorter stumbled, but caught her balance. She stated that she saw no indication as to why Appellant had pushed McWhorter.

Arkansas Code Annotated § 5-13-206(a) (Repl. 1993) provides that a person commits second-degree assault if he “recklessly engages in conduct which creates a substantial risk of physical injury to another person.” Ark. Code Ann. § 5-2-202(3) (Repl. 1993) provides that a person acts recklessly when he “consciously disregards a substantial and unjustifiable risk. . . . The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situationf.]”

In viewing the evidence presented below in a light most favorable to the State, we are satisfied that there was sufficient evidence to support the trial court’s conclusion that Appellant had committed the act of second-degree assault. Appellant’s actions in pushing McWhorter from behind were, at the very least, reckless, and they created a substantial risk that McWhorter would be physically injured. It is of no consequence to Appellant’s argument that McWhorter was able to regain her balance before fading on the concrete sidewalk. The fact that Appellant’s actions created a substantial risk that she could have fallen on the concrete and injured herself is sufficient to sustain the trial court’s findings.

For the second point for reversal, Appellant argues that his trial counsel was ineffective in failing to present evidence concerning his disabilities and in failing to seek a prior federal administrative determination under the Individuals with Disabilities in Education Act. Appellant argues that A.R.Cr.P. Rule 37 does not apply to delinquency proceedings in juvenile court and that, consequently, juvenile delinquents have no recourse in which to raise the issue of the ineffective assistance of counsel. We disagree.

We first observe that the Arkansas Rules of Criminal Procedure apply to juvenile delinquency proceedings. Ark.

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Bluebook (online)
955 S.W.2d 905, 330 Ark. 652, 1997 Ark. LEXIS 692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-state-ark-1997.