Jack Nelson Jones Professional Association

October 23-29, 2017

Whitworth v. State, 2017 Ark. App. 462 (September 20, 2017)

This appeal comes from the Pulaski County Circuit Court, First Division, honorable James Leon Johnson presiding. The case concerns attempted residential burglary.

Clarence Whitworth was charged with attempted residential burglary of the residence of Chanel Johnson on June 23, 2014. The State of Arkansas alleged that Whitworth attempted to enter the house unlawfully with the purpose of committing a theft inside the house. Johnson was the sole witness for the State. She testified that she knew Whitworth as her mother’s boyfriend, and that he had been to the house many times before her mother and stepfather’s divorce was finalized in May 2014. Her mother and Whitworth were dating before the divorce was granted. Her mother had since moved out of the house, and Johnson assumed that her mother was living with Whitworth. Johnson, who graduated high school in May 2014, continued to live with her stepfather. She initially testified that she did not believe her mother had any property remaining in the house after the divorce, but then she remembered telling police that her mother did. She said that after the divorce, her mother was not supposed to be in the house, nor was Whitworth given permission by her or her stepfather to be in the house.

Johnson testified that she was home, and at around 11:00 a.m., she heard sounds. She went to the kitchen and saw Whitworth with his arms and head inside the window; he was carrying a bag she approximated to be six inches in size. She never saw him all the way inside the residence but rather saw him in the window. Johnson yelled, asking what Whitworth was doing, at which point he jumped out of the window and fled. Johnson explained that the kitchen window had problems with closing, which someone who had been to the house would have known.

Whitworth testified that he was working all that day and could not have committed this crime. Whitworth’s former employer testified that he had worked for him but that he had terminated Whitworth on June 23, 2014. Whitworth stated that he had been to the house before, that he helped his girlfriend (Johnson’s mother) move her things out of the house, that if he had needed to get inside the house he had access to his girlfriend’s key, and that the only items of value in the house were too big to carry in a small bag.

Defense counsel moved to dismiss the charge, specifically challenging the State’s evidence of his intent to commit a theft in the residence, but the trial court denied the motion and found Whitworth guilty of attempted residential burglary. Whitworth appealed.

On appeal, the Court explained that a person commits residential burglary if he enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing in that structure any offense punishable by imprisonment. An attempted offense requires a person to purposely engage in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as the person believes them to be. Here, the alleged offense was theft of property while illegally in the residence, which was the offense the State had to show was intended to be committed. Theft of property is defined as knowingly taking or exercising unauthorized control over or making an unauthorized transfer of an interest in the property of another person with the purpose of depriving the owner of the property.

Purpose can be established by circumstantial evidence, and often this is the only type of evidence available to show intent. However, the Court noted that specific intent to commit a crime inside the structure cannot be inferred solely from proof of an illegal entry. The State cannot shift to the defendant the burden of explaining his unlawful entry but must also establish the defendant’s intent.

Whitworth argued that even if the evidence was substantial that he illegally entered the residence, there was no substantial evidence that he did so with the purpose of committing therein a theft of property. The Court agreed. While intent to commit an offense may be inferred from a defendant’s conduct and the surrounding circumstances;  the facts proved incident to an unlawful entry must show circumstances of such probative force as to reasonably warrant the inference of the purpose on the part of the accused to commit the theft, other than the entry itself.

Whitworth pointed to Norton v. State, where a conviction for burglary was reversed because the evidence revealed, at most, that an office building’s window glass was broken, Norton was seen standing inside the doorway of the building that he had illegally entered and from which nothing was taken, and he was speaking to his friends passing by. In that case, the Court held that, specific intent, which is an element of the crime of burglary, could not be presumed from a mere showing of illegal entry. It was also noted that there was no evidence that Norton fled to avoid arrest.

In this case, there was evidence of flight. However, as Whitworth argued, flight following an illegal entry does not, of itself, support an inference of intent to commit theft. Whitworth cited Wortham v. State, to support reversal. Wortham’s conviction for burglary was reversed when the defendant, who had met the girls in the house before, was discovered standing in a doorway, but there was no proof that he had attempted to harm anyone, to take anything, or to commit any other crime, although he did flee when the girls inside the house screamed. The Wortham court reversed, holding that the illegal entry and flight upon discovery was insufficient evidence to establish intent to commit an offense punishable by imprisonment within the residence.

The Court found no distinction between the present circumstances in any meaningful way from those in the cases cited by Whitworth. Those cases are indicative of unlawful entry into houses or buildings, and in one case flight therefrom, but that was all. According to the Court, the State failed to prove what Whitworth’s intent might have been in entering the house, much less the intent to commit the specific crime of theft. The most that can be said of the State’s proof was that Whitworth was caught unlawfully entering his girlfriend’s former residence while holding a small bag and that he fled when Johnson yelled and screamed at him. The State had no evidence to show whether the small six-inch bag was empty or contained something. Whitworth was not a complete stranger to Johnson or to this residence; this illegal entry was in the middle of the day; this window was known to not close properly, providing an access point if the door was locked. There was no evidence that Whitworth said anything to Johnson to answer her question of what he was doing there. The State’s evidence demonstrated that Whitworth had not fully entered the residence when he was caught and fled. The Court noted that flight from the scene could reasonably have meant consciousness of guilt regarding the illegal entry itself as opposed to the intent to commit a theft inside the residence. The Court concluded that the circumstances did not exclude every other reasonable inference than that Whitworth intended to commit a theft inside the house; thus, it could not constitute sufficient evidence of guilt of the crime with which Whitworth was charged. Affirmed.