Horton v. State , 2014 Ark. App. 250 ( 2014 )

Cite as 2014 Ark. App. 250
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-13-864
Opinion Delivered April 23, 2014
CURTIS HORTON APPEAL FROM THE SALINE
APPELLANT COUNTY CIRCUIT COURT
[No. 63CR-11-344-2]
V. HONORABLE GARY ARNOLD,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
LARRY D. VAUGHT, Judge
Curtis Horton was convicted in the Saline County Circuit Court of aggravated residential
burglary, theft of property, and failure to appear. On appeal, he challenges only the aggravated-
residential-burglary conviction, arguing that there was insufficient evidence to support it. We
affirm.
The facts developed at trial were that on the morning of March 17, 2011, Lisa Stanfield
left her home for work but returned later that morning to retrieve her daughter’s science project.
She said that when she left for work, she closed the overhead garage door, but when she
returned, it was open and there was an unfamiliar vehicle in her garage. She pulled in behind the
strange vehicle, walked into the garage toward the door to her house when a man exited her
home, “aggressively hopping toward” her. She said that she observed the man put his hands in
his jacket pocket and approach her. When he was within three or four feet of her, he said, “you
better back up off me.” Stanfield said that she retreated. As she retreated, she stated that she
Cite as 2014 Ark. App. 250
drew her shoulders up anticipating a bullet to the back of her head because she thought he had
a gun. As Stanfield returned to her vehicle, she glanced at the license-plate number of the vehicle
in her garage. After she drove away, she called 911.
Stanfield returned to her house once officers from the Bryant Police Department arrived.
Upon inspection, she discovered that someone had disturbed the home’s contents and that
several items of personal property were missing. Police lifted fingerprints from the home, and
the chief latent-print examiner from the Arkansas Crime Lab testified that two of the prints were
Horton’s. Based on their investigation, officers showed Stanfield six photographs, and she
identified Horton as the man she saw in her garage. She also identified him at trial. She testified
that she assumed Horton had a gun because he kept his hands in his pocket and because of his
behavior toward her. Based on this evidence, the jury convicted Horton of aggravated residential
burglary. On appeal, Horton argues that there is insufficient evidence supporting this conviction.
In reviewing a challenge to the sufficiency of the evidence, we determine whether the
verdict is supported by substantial evidence, direct or circumstantial. Edwards v. State, 360 Ark.
413, 417, 201 S.W.3d 909, 913 (2005). Substantial evidence is evidence forceful enough to
compel a conclusion one way or the other beyond suspicion or conjecture. Id., 201 S.W.3d at
913. We view the evidence in the light most favorable to the verdict, and only evidence
supporting the verdict will be considered. Id., 201 S.W.3d at 913. Circumstantial evidence
provides the basis to support a conviction if it is consistent with the defendant’s guilt and
inconsistent with any other reasonable conclusion. Id., 201 S.W.3d at 913.
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Arkansas Code Annotated section 5-39-204(a) (Repl. 2013) provides that
(a) A person commits aggravated residential burglary if he or she commits residential
burglary, as defined in Arkansas Code Annotated section 5-39-2011 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.
Relying on subsection 5-39-201(a)(1), Horton argues that there was insufficient evidence upon
which a jury could find that he was armed with a deadly weapon. He contends that there is no
evidence in the record that he had a deadly weapon, and on this point we agree. He also
maintains that there was insufficient evidence upon which a jury could find that he represented
through his words or conduct that he was armed with a deadly weapon. He claims that the only
evidence to support this element was that he placed his hands in his pockets, which he argues
is insufficient to support the aggravated-residential-burglary conviction. On this point we
disagree.
In cases where the accused makes no verbal representation that he is armed, the focus
is on what the victim perceived concerning a deadly weapon. Dobbins v. State, 2013 Ark. App.
269, at 4 (citing Feuget v. State, 2012 Ark. App. 182, 394 S.W.3d 310, 312). See also Edwards, 360
Ark. at 419, 201 S.W.3d at 919 (affirming an aggravated-robbery2 conviction where the victim
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A person commits residential burglary if he or she enters or remains unlawfully in a
residential occupiable structure of another person with the purpose of committing in the
residential occupiable structure any offense punishable by imprisonment. Ark. Code Ann. § 5-
39-201(a)(1) (Repl. 2013).
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The offense of aggravated robbery, like aggravated residential burglary, requires the
element that a person committing robbery be armed with a deadly weapon or represent by word
or conduct that he is armed with a deadly weapon. Ark. Code Ann. § 5-12-103(a)(1), (2) (Repl.
2013).
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believed that the defendant was armed with a deadly weapon). In Parker v. State, 271 Ark. 84, 86,
607 S.W.2d 378, 379 (1980), our supreme court held that there was sufficient evidence to
support an aggravated-robbery conviction based on the victim’s testimony that she thought
Parker had a gun and that she was scared when he put his hand in his pocket and asked for
money. In Dobbins, the victim testified that when Dobbins came into her house, he told her to
give him money and that he was going to kill her; that he had a paper bag over his right hand;
that his right hand was pointing directly at her stomach; and that she believed that there was
a gun in the paper bag. 2013 Ark. App. 269, at 4. We held that the victim’s perception that
Dobbins was armed with a deadly weapon, although erroneous, was sufficient to support the
finding that he represented by his conduct that he was armed with a deadly weapon and
affirmed the convictions for aggravated robbery and aggravated residential burglary. Id.
Based on these cases, we hold that there is substantial evidence supporting the jury’s
finding that Horton represented by word or conduct that he was armed with a deadly weapon.
Stanfield testified that Horton kept his hands in his pockets throughout the encounter, he
moved aggressively toward her, and he warned her she “better back off” him. She also testified
that she believed that he had a gun and might shoot her when she retreated. The jury apparently
found Stanfield’s testimony credible, which was clearly a matter within its province, King v. State,
2014 Ark. App. 81, at 2, ___ S.W.3d___, ___ (holding that the trier of fact resolves the
question of credibility), and we hold that her testimony constitutes substantial evidence
supporting the aggravated-residential-burglary conviction.
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Relying on section 5-39-201(a), Horton also argues that there was insufficient evidence
that he committed aggravated residential burglary of a “residential occupiable structure.” The
criminal code defines a “residential occupiable structure” as “a vehicle, building or other
structure: (i) [i]n which any person lives; or (ii) [t]hat is customarily used for overnight
accommodation of a person whether or not a person is actually present.”Ark. Code Ann. § 5-
39-101(4)(A)(i), (ii) (Repl. 2013). Horton points out that Stanfield never entered her home and
that there was no evidence that she lived in the garage or customarily used it for overnight
accommodation.
We hold that the garage falls within the definition of a “residential occupiable structure”
because it is a building or structure in which Stanfield lived. Ark. Code Ann. § 5-39-101(4)(A)(i).
Based on her testimony, it was revealed that the garage was attached to her home and was an
integral part of her home. It held two cars, although half of the garage was used to store
Stanfield’s personal items. She testified that she exited her garage each day for work, shutting
the overhead garage door and using it to secure her home. Significantly, Stanfield was using her
garage at the time of her encounter with Horton.
In Winters v. State, we held that a storage room attached to a business was an “occupiable
structure” in that it was “functionally interconnected with, and immediately contiguous to the
main structure in which the [merchant] carried on its business.” 41 Ark. App. 104, 110, 848
S.W.2d 441, 445 (1993). We further held that “[s]imple logic would suffer were we to hold that
the supply room was somehow different from an office in a building or a body shop at an auto
dealership because no inside entrance connected the two structures.” Id., 848 S.W.2d at 445. In
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the instant case, Stanfield’s garage was “functionally interconnected with, and immediately
contiguous to the main structure” in which she lived. Simple logic would suffer were we to hold
that the attached garage that Stanfield used daily was somehow different from her house.
Finally, in Julian v. State, 298 Ark. 302, 304, 767 S.W.2d 300, 301 (1989), our supreme
court held that the definition of “occupiable” does not depend on the presence of a person in
a building or on whether it is being used for some other purpose as long as “the nature of the
premise” is that it is “occupiable.” Our supreme court stated:
The obvious reason for the distinction between our burglary and breaking and
entering statutes is the intent of the general assembly to punish burglary more severely
because it involves entering a place where people, as opposed to mere property, are
likely to be. . . . The [trailer] was thus one in which a person planning to enter could
have anticipated finding a person or persons, absent any evidence that the trailer was
uninhabitable, and thus entering it could have endangered human life or health. It was
the sort of building to which the burglary statute was intended to apply.
Julian, 298 Ark. at 304, 767 S.W.2d at 301 (citation omitted). Stanfield’s attached garage is a
place where people are likely to be—as demonstrated by the facts of this case. It is the sort of
structure to which the burglary statute was intended to apply. Therefore, we hold that
Stanfield’s garage is a “residential occupiable structure” pursuant to section 5-39-101(4)(A)(i).
Accordingly, we hold that substantial evidence supports the aggravated-residential-burglary
conviction and affirm.
Affirmed.
WYNNE and WHITEAKER, JJ., agree.
Digby Law Firm, by: Bobby R. Digby II, for appellant.
Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for appellee.
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