Muhammad v. State , 2016 Ark. App. LEXIS 302 ( 2016 )

Cite as 2016 Ark. App. 285
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-15-608
KAREEM MUHAMMAD Opinion Delivered May 25, 2016
APPELLANT
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT, SIXTH
DIVISION
V. [NO. 60CR2013-2411]
HONORABLE WENDELL GRIFFEN,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
PHILLIP T. WHITEAKER, Judge
Appellant Kareem Muhammad was convicted of one count of robbery and one count
of theft of property following a bench trial. Because Muhammad had nine previous
convictions, he was sentenced as a habitual offender and received twelve years in the Arkansas
Department of Correction. On appeal, Muhammad raises three arguments: (1) the evidence
was insufficient to support his conviction for robbery; (2) in conjunction with that argument,
Arkansas’s standard of review in criminal cases is unconstitutional and inconsistent with Jackson
v. Virginia, 443 U.S. 307 (1975); and (3) Arkansas’s habitual-offender sentencing statutes are
unconstitutional. We find no error and affirm.
Cite as 2016 Ark. App. 285
I. Standard of Review
As part of his challenge to the sufficiency of the evidence in this case, Muhammad
challenges the constitutionality of our appellate courts’ standard of review. Muhammad
correctly states that Arkansas’s well-settled standard of review requires an appellate court to
view the evidence in the light most favorable to the appellee and affirm if substantial evidence
supports a conviction. For purposes of this opinion, we will refer to the Arkansas standard as
the “substantial evidence” test. Muhammad contends that this standard violates the
constitutional framework established by the United States Supreme Court in Jackson v.
Virginia, 443 U.S. 307 (1979). In Jackson, the United States Supreme Court held that a state
criminal conviction could be successfully challenged in a federal habeas proceeding “if it is
found that upon the record evidence adduced at the trial no rational trier of fact could have
found proof of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 324. For purposes of
this opinion, we will refer to the Jackson standard as the “rational trier of fact” test.
Muhammad’s challenge to the “substantial evidence” test is without merit. Our
supreme court has repeatedly rejected this very argument. In Jones v. State, 269 Ark. 119, 598
S.W.2d 748 (1980), the supreme court explicitly held that the language in Jackson did not
require abandonment of the “substantial evidence” test. Jones, 269 Ark. at 120, 598 S.W.2d
at 749. This decision was subsequently reaffirmed in Hale v. State, 343 Ark. 62, 74–75, 31
S.W.3d 850, 858 (2000) (declining to adopt Jackson’s “rational trier of fact” test as the
appropriate standard of review when there is a challenge to the sufficiency of the evidence).
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More recently, in Williams v. State, 351 Ark. 215, 91 S.W.3d 54 (2002), the supreme court
again rejected the argument and pointed out that
[the] substantial-evidence test, while not explicitly reciting the standard from Jackson
word for word, requires that evidence supporting a conviction must compel reasonable
minds to a conclusion and force or induce the mind to pass beyond suspicion or
conjecture, and, thereby, ensures that the evidence was convincing to a point that any
rational fact-finder could have found guilt beyond a reasonable doubt.
351 Ark. at 227, 91 S.W.3d at 61 (internal citations omitted). Thus, the argument that
Muhammad puts forth in his brief has been repeatedly and soundly rejected by our supreme
court, and we are bound to follow that court’s decisions. See Earl v. State, 2010 Ark. App. 186
(rejecting a Jackson-based argument for that reason).
We therefore apply our well-settled standard of review to this case. In reviewing a
challenge to the sufficiency of the evidence, this court determines whether the verdict is
supported by substantial evidence, direct or circumstantial. Kourakis v. State, 2015 Ark. App.
612, 474 S.W.3d 536. We have defined substantial evidence as evidence that is forceful
enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. This
court views the evidence in the light most favorable to the verdict, and only evidence
supporting the verdict will be considered. Id.
II. Sufficiency of the Evidence
Having established the standards by which we review this case, we turn to the merits
of Muhammad’s appeal. As noted above, Muhammad was charged with robbery. A person
commits robbery if, with the purpose of committing a felony or misdemeanor theft, the
person employs or threatens to immediately employ physical force upon another person. Ark.
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Code Ann. § 5-12-102(a) (Repl. 2015). “Physical force” means any bodily impact, restraint,
or confinement, or the threat thereof. Ark. Code Ann. § 5-12-101(1)–(2). Muhammad was
also convicted of theft of property. In his brief, however, he concedes that there was sufficient
evidence to support the theft-of-property conviction; therefore, we need only consider the
evidence introduced in support of the robbery conviction.
Utilizing our standard of review, we find the evidence sufficient to support
Muhammad’s conviction for robbery. The evidence introduced at trial showed the following.
During early morning hours, Desi Jones, who was sixteen years old at the time, was standing
in the parking lot of his apartment complex and talking on his iPhone. Muhammad pulled up
to him in a car and asked if he could use Jones’s phone. When Jones refused, Muhammad
punched him in the face, took the phone, and drove away. Using his mother’s iPad, Jones and
his mother were able to track the location of the iPhone. Little Rock police were called to
that location. When Muhammad answered the door, Jones positively identified him as the
man who had taken his phone. Muhammad handed the phone over to the officers, and he was
arrested. We conclude that Muhammad’s act of punching Jones in the face and taking the
phone constitutes substantial evidence to support a conviction for robbery. See Parker v. State,
258 Ark. 880, 529 S.W.2d 860 (1975) (evidence that defendant hit victim in the face while
stealing her purse supported robbery conviction); Baldwin v. State, 48 Ark. App. 181, 892
S.W.2d 534 (1995) (jerking victim’s hand from car horn during carjacking sufficient to
support robbery conviction).
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Muhammad nonetheless points to his own testimony that he simply borrowed the
phone from Jones and forgot that he had it. He also asserts that there was no physical
evidence, such as bruising or scratching, to indicate that he hit Jones. These arguments,
however, substitute Muhammad’s assessment of Jones’s credibility for the circuit court’s,
which is contrary to our standard of review. See Glennon v. State, 2016 Ark. App. 25, at 5, 480
S.W.3d 894, 897. It is the responsibility of the trier of fact to make credibility determinations
based on the evidence. Wilson v. State, 2016 Ark. App. 218, ___ S.W.3d ___. The circuit
court, as finder of fact, is free to believe the testimony of the State’s witnesses as opposed to
a defendant’s self-serving testimony. Hale v. State, 2009 Ark. App. 308. Here, the circuit court
chose to believe the testimony of Jones and not that of Muhammad. We therefore affirm
Muhammad’s robbery conviction.
III. Sentencing as a Habitual Offender
Muhammad’s second argument on appeal pertains to his sentencing as a habitual
offender. Muhammad was charged as a habitual offender. Knowing this, Muhammad waived
his right to a jury trial and asked the circuit court to both determine his guilt and set his
punishment. After the bench trial, the circuit court held a separate sentencing hearing. At the
beginning of that hearing, the State introduced evidence of Muhammad’s nine prior
convictions. Although Muhammad asked the court to consider probation or a suspended
imposition of sentence, the circuit court found that the previous convictions precluded such
a sentence. See Ark. Code Ann. § 5-4-301(a)(2) (“If it is determined pursuant to § 5-4-502
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Cite as 2016 Ark. App. 285
that a defendant has previously been convicted of two (2) or more felonies, the court shall not
. . . [s]uspend imposition of sentence; or . . . [p]lace the defendant on probation.”).
On appeal, Muhammad argues that Arkansas’s habitual-offender statute violates the
separation-of-powers clause in the Arkansas Constitution. He failed to raise this argument in
the circuit court, however, and it is therefore not preserved for appellate review. It is well
settled that we will not consider arguments, even constitutional ones, that are raised for the
first time on appeal. Laymon v. State, 2015 Ark. 485, at 5, 478 S.W.3d 203, 206. Accordingly,
we do not address this argument.
Affirmed.
VIRDEN and BROWN, JJ., agree.
David O. Bowden, for appellant.
Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.
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