Kendrick L. Reed v. State of Arkansas

Reason: I attest to the
Cite as 2020 Ark. App. 520
accuracy and integrity of this
document ARKANSAS COURT OF APPEALS
Date: 2021-07-21 11:13:17
Foxit PhantomPDF Version: DIVISION I
9.7.5 No. CR-19-872

Opinion Delivered: November 18, 2020
KENDRICK L. REED
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT,
FOURTH DIVISION
STATE OF ARKANSAS [NO. 60CR-18-3330]
APPELLEE
HONORABLE HERBERT T.
WRIGHT, JR., JUDGE

AFFIRMED

BART F. VIRDEN, Judge

Kendrick L. Reed challenges the sufficiency of the evidence supporting his

conviction of residential burglary following a bench trial in the Pulaski County Circuit

Court. We affirm.

Reed was arrested on May 28, 2018, and charged with residential burglary, third-

degree battery, and second-degree terroristic threatening. He waived his right to a jury trial,

and the case proceeded to a bench trial. At the trial, Markaye Collins testified that on May

28, shortly after her boyfriend, LeBron Campbell, left her apartment, someone knocked on

her door. Thinking it was her boyfriend, she answered the door. Collins testified that Reed

and two other men explained that they were looking for Campbell and that they seemed

angry. Collins testified that Reed hit her in the face knocking her to the ground, and the

men entered her apartment. Reed threatened to hit Collins again if she did not tell him

where Campbell was, and after they searched her apartment and did not find Campbell,

they left.
Reed moved the court to dismiss the charges of residential burglary. In pertinent

part, Reed contended that

[f]or Count 1, we have a residential burglary. The, first, the State has to show that
there was unlawful, felonious entry into this house. I don’t believe the State has met
its burden even though taking the evidence most light, favorable to them, the
testimony today, she’s changed her story. She told the officers that she was leaving,
and they came into the apartment. In her statement she said they were knocking on
the door and then she let ‘em in. On the second prong, purpose of committing [an
offense] therein, I think in the felony information says battery in the third degree.
The witness testified that they were there for the purpose of finding LeBron, not for
the purpose of committing that offense.

The court denied the motion and found Reed guilty of all charges. Reed timely filed

his notice of appeal.

On appeal, Reed argues for the first time that

[a]t most, Markaye Collins’s testimony at trial proved that Appellant Reed punched
her in the face before he entered her residence. Given that Appellant Reed’s third-
degree battery against Ms. Collins took place before he entered her residence, this
conduct could not serve as circumstantial proof that he had the specific intent to
commit third-degree battery against her again after he entered her apartment.
Appellant Reed committed third-degree battery against Ms. Collins once, before he
entered her residence, and did not commit a second third-degree battery against her
after he entered her residence. Because he committed third-degree battery against
Ms. Collins before he entered her residence, there was no factual basis that would
allow the fact-finder to reasonably infer that he intended to punch her in the face
after he entered her residence, unless he did so again after entering her residence. In effect,
Appellant Reed’s conduct was no more a predicate third-degree battery for
residential burglary than his conduct would have been a predicate third-degree
battery for residential burglary had he punched [her] in the face in her front yard,
outside her residence.

(Third emphasis added.)

By contrast, in his motion to dismiss, Reed argued that Collins’s statement to the

police differed from her trial testimony and that the State failed to prove that Reed entered

the home with the purpose of committing third-degree battery. Specifically, Reed did not

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argue below that the State was required to prove that Reed committed a second battery

once he was inside Collins’s apartment.

Arkansas Rule of Criminal Procedure 33.1(b) (2019) provides that in a nonjury trial,

if a motion for dismissal is to be made, it shall be made at the close of the evidence and shall

state the specific grounds therefor. Rule 33.1(c) further provides that a motion for dismissal

based on insufficiency of the evidence must specify the respect in which the evidence is

deficient. In order to preserve a challenge to the sufficiency of the evidence for appeal from

a bench trial, the issue must be articulated clearly and specifically to the circuit court in a

motion to dismiss so that the circuit court will have the opportunity to either grant the

motion or, if justice requires, allow the State to reopen its case and supply the missing proof.

Cox v. State, 2019 Ark. App. 192, 575 S.W.3d 134. The appellate courts do not address

arguments that are raised for the first time on appeal. Williams v. State, 2019 Ark. 129, 571

S.W.3d 921. Appellants are bound by the arguments raised in the circuit court and the scope

and nature of those arguments as presented to the circuit court. Id. Reed’s argument on

appeal is different from his argument to the circuit court; accordingly, we affirm.

Affirmed.

SWITZER and MURPHY, JJ., agree.

William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender,

for appellant.

Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.

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