JIMENEZ v. STATE

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Docket Number

No. CA CR 84-87

Attorney(S)

John W. Settle, by: J. Fred Hart, Jr., for appellant. Steve Clark, Atty Gen., by: Patricia G. Cherry, Asst. Atty Gen., for appellee.

Judges

TOM GLAZE, Judge.

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Smart Summary

Factual and Procedural Background

On the night of October 10, 1983, Humberto Jimenez (appellant) broke into the home of Bill Payno in Fort Smith. A responding police officer found a broken window in the back door and discovered appellant sitting in a corner of the living room. The homeowner, Payno, testified that the house had been largely emptied because he had moved out a week earlier but that some dishes, glasses and silverware had been wrapped in towels and placed in a pail, and curtains had been torn down and used to wrap a staple gun and other items, "as if to carry them away." Payno stated these items were not as he had left them and that he did not believe his sister — who had been assisting him with cleaning — had wrapped the items.

At a non-jury trial, appellant testified he had been evicted from a friend's apartment the same evening and entered the Payno house only to find a place to sleep, denied any knowledge of or intent to take items, and said he was asleep when police entered. The trial court convicted appellant of burglary in violation of Ark. Stat. Ann. 41-2002 (Repl. 1977) and sentenced him to five years' imprisonment, with three and one-half years suspended. Appellant appealed, challenging the sufficiency of the evidence to prove the requisite criminal intent for burglary. The Court of Appeals, Division I, affirmed the conviction.

Legal Issues Presented

Whether there was sufficient evidence from which the trial court could find that appellant entered Mr. Payno's house with "the purpose of committing therein any offense punishable by imprisonment," as required by the burglary statute.

Arguments of the Parties

State's Presentation / Arguments

The State introduced testimony from the arresting officer that a broken window was found and appellant was discovered inside the house shortly after the break-in.
The State elicited Payno's testimony that items were wrapped and gathered "as if to be carried off," and that these items were not as he had left them and were not handled by his sister.
From presence inside the house combined with the foregoing facts, the State argued the trial court could infer the requisite criminal intent for burglary.

Appellant's Arguments

Appellant testified he had been evicted from a friend's apartment that night and entered the Payno house only to find a place to sleep; he denied any intent to steal.
He asserted knowledge that the house was vacant because he had seen Payno move out and denied knowledge of the wrapped items or any plan to remove property.
Appellant maintained he was asleep when the police entered the home.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Holloway v. State, 11 Ark. App. 69, 666 S.W.2d 410 (1984)	Standard of appellate review: affirm conviction if substantial evidence supports trial court's findings of fact.	Cited to state the controlling standard that the conviction must be affirmed if substantial evidence supports the trial court's factual findings.
Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980)	Definition of "substantial evidence": evidence that will compel a reasonable mind to a conclusion and passes beyond suspicion or conjecture.	Used to define what constitutes substantial evidence in reviewing the sufficiency of proof of intent.
Profit v. State, 6 Ark. App. 51, 637 S.W.2d 620 (1982)	In evaluating substantiality, evidence must be viewed in the light most favorable to the State.	Cited to describe how the appellate court must review the evidence when assessing substantiality.
Norton v. State, 271 Ark. 451, 609 S.W.2d 1 (1980)	Specific criminal intent for burglary cannot be presumed from mere illegal entry; prosecution must prove each element beyond a reasonable doubt.	Appellant relied on Norton; the court distinguished Norton because Norton involved only proof of illegal entry (mere presence), whereas the present case had additional facts from which intent could be inferred.
Wortham v. State, 5 Ark. App. 161, 634 S.W.2d 141 (1982)	Mere presence in a dwelling is insufficient to prove purpose/intent; absence of evidence of intent requires reversal.	Distinguished from the present case because Wortham proved only presence, while the instant case presented "presence plus" circumstances (items packed as if to be taken).
Johnson v. State, 7 Ark. App. 172, 646 S.W.2d 22 (1983)	Circumstantial evidence is as valid as direct evidence; law makes no distinction between direct evidence and circumstances from which facts may be inferred.	Cited to support the proposition that circumstantial evidence of intent (here, presence combined with packed items and homeowner testimony) can be substantial enough to sustain conviction.

Court's Reasoning and Analysis

The court began by reciting the applicable standard of review: an appellate court must affirm a conviction if substantial evidence supports the trial court's factual findings, defining substantial evidence as that which compels a reasonable mind beyond suspicion or conjecture, and viewing the evidence in the light most favorable to the State (citing Holloway, Jones, and Profit).

The court recognized appellant's concession that the house was an occupiable structure and that entry was unlawful, isolating the appeal to whether the State proved the required intent to commit an offense inside the dwelling. The State's proof consisted of the officer's testimony that appellant was found inside after a broken rear-door window and Payno's testimony that items were wrapped and gathered "as if to be carried off" and were not left in that condition by Payno or, in his view, his sister.

The court contrasted the present facts with Norton and Wortham, where only mere presence was proven and convictions were reversed because intent could not be inferred. The court explained that Norton and Wortham are distinguishable here because the State proved "presence" plus additional facts and circumstances (the wrapped and gathered items and the homeowner's testimony that they were not so placed by him or his sister), from which the trial court could reasonably infer intent to commit an offense.

Finally, the court relied on the principle that circumstantial evidence is as valid as direct evidence (citing Johnson) to conclude that the circumstantial evidence of intent was not insubstantial. Applying the substantial-evidence standard in the light most favorable to the State, the court found the proof sufficient to support the trial court's finding that appellant entered with criminal intent.

Holding and Implications

AFFIRMED.

Holding: The Court of Appeals affirmed the trial court's burglary conviction and sentence. The appellate court concluded that substantial evidence — viewed in the light most favorable to the State — supported the trial court's finding that appellant entered the dwelling with the requisite intent to commit an offense punishable by imprisonment.

Implications: The direct effect is that appellant's conviction and sentence (five years' imprisonment with three and one-half years suspended) stand. The opinion distinguishes prior cases where only mere presence was shown and relies on permitted inferences from circumstantial evidence; it does not announce a broader legal rule beyond applying established precedent on substantial-evidence review and the sufficiency of circumstantial evidence.

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Humberto JIMENEZ v. STATE of Arkansas

1. APPEAL ERROR — REVIEW OF CONVICTION. — On appeal appellant's conviction must be affirmed if there is substantial evidence to support the trial court's findings of fact. 2. EVIDENCE — SUBSTANTIAL EVIDENCE. — Substantial evidence is evidence that is of sufficient force and character that it will compel a reasonable mind to reach a conclusion one way or the other, but it must force the mind to pass beyond suspicion or conjecture. 3. APPEAL ERROR — REVIEW OF SUBSTANTIALITY OF THE EVIDENCE. — In evaluating the substantiality of the evidence, the appellate court must review it in the light most favorable to the State. 4. CRIMINAL LAW — BURGLARY — CRIMINAL INTENT. — Specific criminal intent, which is an essential element of the crime of burglary, cannot be presumed from a mere showing of illegal entry of an occupiable structure. 5. CRIMINAL LAW — BURGLARY — SUFFICIENT PROOF OF INTENT. — Where the State proved "presence" plus the fact that items had been packed up, as if to be carried off, and the homeowner testified that neither he nor his sister had moved the items, there was sufficient evidence of appellant's criminal intent to convict him of burglary. 6. CRIMINAL LAW — BURGLARY — INTENT — CIRCUMSTANTIAL EVIDENCE SUFFICIENT. — The fact that the State's evidence bearing on appellant's intent is circumstantial does not render it insubstantial; the law makes no distinction between direct evidence of a fact and circumstances from which it may be inferred.

TOM GLAZE, Judge.

On the night of October 10, 1983, appellant broke into the home of Bill Payno in Fort Smith and was arrested shortly after entering the house. At trial, appellant submitted that he purposely entered Mr. Payno's house, looking for a place to sleep. Appellant was convicted in a non-jury trial of burglary, a violation of Ark. Stat. Ann. 41-2002 (Repl. 1977). The trial court sentenced appellant to five years' imprisonment, with three and one-half years suspended. Appellant presents one issue on appeal: Was there sufficient evidence from which the trial court could find that appellant entered Mr. Payno's house with "the purpose of committing therein any offense punishable by imprisonment," as required by statute?

At trial, the State offered the testimonies of Mr. Payno, the homeowner, and the police officer who arrested appellant, to prove the requisite element of intent. The arresting officer testified that on the evening of October 10, he was called to investigate a possible break-in at the Payno home. Upon his arrival, the officer found a window in the back door of the house that had been broken. After entering the house, the officer found appellant sitting in a corner of what appeared to be the living room. Mr. Payno testified that after hearing of the break-in into his home, he went there to determine if anything was missing. Because he had moved out of the house one week earlier, the house was almost empty. However, Mr. Payno did find that some dishes, glasses and silverware had been wrapped in towels and placed in a large pail. He also discovered that someone had torn some curtains off the living room wall and had used them to wrap up a staple gun and some other items, as if to carry them away. Mr. Payno stated that none of these items were as he had left them in the house that afternoon. Mr. Payno conceded that his sister had been assisting him daily to clean and pick up items in the house; however, he stated that he was aware of everything she did and he did not believe it was possible she might have wrapped up these dishes.

To rebut the State's circumstantial evidence of his intent, appellant testified that, previous to his arrest, he had been living with a friend, Louis Martinez, in Martinez apartment. Because appellant never paid rent to Martinez, he evicted appellant late on the evening of October 10. After being turned out into the street by his friend, appellant broke into the Payno home, which was across the street from Martinez' apartment. Appellant stated that he broke into the house only to find a place to sleep that night and that he knew the house was vacant because he had seen Payno move out. About the dishes and the torn curtains, appellant said that he knew nothing. He denied having any intention to steal anything from inside of the Payno home. According to appellant, he was asleep when the police entered the home.

On appeal, we must affirm appellant's conviction if there is substantial evidence to support the trial court's finding of fact. Holloway v. State, 11 Ark. App. 69, 666 S.W.2d 410 (1984). Substantial evidence is evidence that is of sufficient force and character that it will compel a reasonable mind to reach a conclusion one way or the other, but it must force the mind to pass beyond suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). In evaluating the substantiality of the evidence, we must view it in the light most favorable to the State. Profit v. State, 6 Ark. App. 51, 637 S.W.2d 620 (1982). Appellant does not argue on appeal that the Payno house was not an occupiable structure or that he lawfully entered the home. His sole contention is that the State did not present substantial evidence that he entered the home with the requisite intent.

Appellant's argument rests primarily upon Norton v. State, 271 Ark. 451, 609 S.W.2d 1 (1980), and its progeny. In Norton, the State proved that the appellant there illegally entered an office building; there was no proof that Norton had taken, or even touched, any property inside the building. In reversing Norton's conviction, the Supreme Court held:

We hold a specific criminal intent, which is an essential element of the crime of burglary, cannot be presumed from a mere showing of illegal entry of an occupiable structure. The prosecution must prove each and every element of the offense of burglary beyond a reasonable doubt and cannot shift to the defendant the burden of explaining his illegal entry by merely establishing it.

Id. at 454, 609 S.W.2d at 3.

We followed Norton in the subsequent case of Wortham v. State, 5 Ark. App. 161, 634 S.W.2d 141 (1982). In this case, the State proved that appellant entered a house and confronted two teen-aged girls with whom he was acquainted and that he fled after one of the girls saw him. There was no proof that appellant was armed, that he made an improper approach toward the girls, or that any property was missing from the home or had even been touched by Wortham. In that decision, we reversed Wortham's conviction because the State did not produce any evidence to show appellant's purpose for being in the home. Without such proof, the jury in that case was forced to guess regarding Wortham's intent in entering the house.

Both Norton and Wortham are distinguishable from the case at bar. In both of these cases, the State proved only that appellant was "merely present;" in this case, the State proved "presence" plus other facts and circumstances from which the trial court could infer that appellant had the requisite intent. These facts and circumstances are, of course, the items that had been gathered up, as if to be carried off, and the homeowner's testimony that neither he nor his sister had moved these things. The fact that the State's evidence bearing on appellant's intent is circumstantial does not render it insubstantial, as the law makes no distinction between direct evidence of a fact and circumstances from which it may be inferred. Johnson v. State, 7 Ark. App. 172, 646 S.W.2d 22 (1983).

Affirmed.

CRACRAFT, C.J., and COOPER, J., agree.