Malvin Bynum v. State of Arkansas

Cite as 2021 Ark. App. 222
ARKANSAS COURT OF APPEALS
Elizabeth Perry
I attest to the accuracy and
DIVISION IV
integrity of this document
No. CR-20-99
2023.06.27 11:39:34 -05'00'
2023.001.20174
Opinion Delivered: May 5, 2021

MALVIN BYNUM APPEAL FROM THE FAULKNER
APPELLANT COUNTY CIRCUIT COURT
[NO. 23CR-17-667]
V.
HONORABLE CHARLES E.
CLAWSON, JR., JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED

KENNETH S. HIXSON, Judge

Appellant Malvin Bynum appeals after he was convicted by a Faulkner County

Circuit Court jury of battery in the first degree while employing a firearm as a means of

committing battery in the first degree. He was sentenced to serve a total of 180 months’

imprisonment in the Arkansas Department of Correction. On appeal, appellant argues that

his conviction should be reversed and remanded because the circuit court erred in denying

his motion for directed verdict. We affirm. 1

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Previously, appellant’s attorney had filed a no-merit brief and a motion to withdraw
as counsel pursuant to Arkansas Supreme Court Rule 4-3(k) (2019) and Anders v. California,
386 U.S. 738 (1967). However, because counsel’s no-merit brief was not in compliance
with Anders and Rule 4-3(k), we ordered rebriefing and denied counsel’s motion to
withdraw without prejudice. Bynum v. State, 2021 Ark. App. 16. Appellant’s counsel has
now chosen to file the instant substituted merit brief.
I. Relevant Facts

Pertinent to this appeal, appellant was charged by amended information with battery

in the first degree in violation of Arkansas Code Annotated section 5-13-201(a)(8) (Repl.

2013), a Class B felony, and the State further alleged that appellant’s sentence should be

enhanced pursuant to Arkansas Code Annotated section 16-90-120 for having employed a

firearm as a means of committed the offense. 2 A jury trial was held on October 23, 2019.

The victim, Julius Brown, testified that he and appellant were neighbors in an

apartment complex. On the morning of July 3, 2017, he and appellant smoked a “stogie”

together at appellant’s apartment. Brown observed a .32 caliber handgun on appellant’s

table. Brown returned to his apartment. Later in the day, Brown texted appellant and

requested appellant to turn down the loud music. According to Brown, appellant knocked

on his door a short time later. Brown opened the door carrying a baseball bat for protection.

Appellant pointed a handgun at his chest. Brown testified that he thought the handgun was

a .32 caliber. Brown stated that he told appellant, “Y’all, you need to get away from my

door with that.” Brown testified that as he turned away, the appellant shot him under his

armpit and that the bullet exited his lower back. Thereafter, Brown swung his baseball bat,

hitting the side of the door and dropping the bat on the floor. Brown testified that he saw

appellant running back up the hill away from the apartment. Brown confirmed that

appellant was the only individual present when he opened the door.

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Appellant was also charged with failure to appear and attempted murder in the first
degree. However, the jury acquitted appellant of attempted murder in the first degree, and
the State nolle prossed the failure-to-appear charge.

2
Virginia Mattison, a long-time friend of Brown, testified that Brown called her

immediately after the incident. Brown told her that appellant had shot him, and Brown

asked her to call 911. After she called 911, she went over to Brown’s apartment. Brown

came out with a bloody sheet around him. Appellant told Mattison again that appellant had

shot him over some music.

One of the investigators, Andy Cook, testified that he recovered a small shell casing

at the scene. Law enforcement arrested appellant shortly after the incident; however, they

did not find any weapons. Investigator Kent Hill testified that the shell casing found at the

scene was from a .25 caliber bullet. When Investigator Hill interviewed appellant, appellant

admitted that he had a confrontation with Brown over loud music and that he had gone to

Brown’s apartment. However, appellant told Investigator Hill that Brown threatened him

with a baseball bat but that it was a third person that shot Brown. Appellant denied having

shot Brown but would not identify the shooter to the investigator.

After the State rested its case, appellant moved for a directed verdict. As to his charge

of battery in the first degree, appellant argued that there was no evidence that appellant had

a firearm or was the one that shot Brown. The circuit court denied the motion.

Appellant testified on his own behalf. Appellant admitted that he knocked on

Brown’s door to confront him about the music and text message. However, appellant

testified that another man named “Rip” (who was a “black man” and wearing all black

clothing) was with him and that it was Rip who had shot Brown when Brown was about

to swing the baseball bat at him. Appellant further testified that he did not know Rip very

well and that he could not provide any further information about Rip to law enforcement.

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Appellant renewed his directed-verdict motion at the close of all evidence, and the

circuit court denied his motion. The jury found appellant guilty of battery in the first degree

and that appellant had employed a firearm as a means of committing battery in the first

degree. This appeal followed.

II. Sufficiency

We treat a motion for a directed verdict as a challenge to the sufficiency of the

evidence. Armstrong v. State, 2020 Ark. 309, 607 S.W.3d 491. In reviewing a sufficiency

challenge, we assess the evidence in the light most favorable to the State and consider only

the evidence that supports the verdict. Id. We will affirm a judgment of conviction if

substantial evidence exists to support it. Id. Substantial evidence is evidence that is of

sufficient force and character that it will, with reasonable certainty, compel a conclusion one

way or the other without resorting to speculation or conjecture. Id. Circumstantial

evidence may provide a basis to support a conviction, but it must be consistent with the

defendant’s guilt and inconsistent with any other reasonable conclusion. Id. Whether the

evidence excludes every other hypothesis is left to the jury to decide. Id. Further, the

credibility of witnesses is an issue for the jury, not the court; the trier of fact is free to believe

all or part of any witness’s testimony and may resolve questions of conflicting testimony and

inconsistent evidence. Id.

A criminal defendant’s intent or state of mind is seldom apparent. Wells v. State,

2012 Ark. App. 596, 424 S.W.3d 378. One’s intent or purpose, being a state of mind, can

seldom be positively known to others, so it ordinarily cannot be shown by direct evidence,

but may be inferred from the facts and circumstances. Id. Because intent cannot be proved

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by direct evidence, the fact-finder is allowed to draw upon common knowledge and

experience to infer it from the circumstances. Id. Due to the difficulty in ascertaining a

defendant’s intent or state of mind, a presumption exists that a person intends the natural

and probable consequences of his acts. Id.

As charged in this case, a person commits battery in the first degree if with the

purpose of causing physical injury to another person, the person causes physical injury to

any person by means of a firearm. Ark. Code Ann. § 5-13-201(a)(8) (Supp. 2019). A

person acts purposely with respect to his or her conduct or a result of his or her conduct

when it is the person’s conscious object to engage in conduct of that nature or to cause the

result. Ark. Code Ann. § 5-2-202(1) (Repl. 2013). Additionally, any person convicted of

any offense that is classified by the laws of this state as a felony who employed any firearm

of any character as a means of committing or escaping from the felony, in the discretion of

the sentencing court, may be subjected to an additional period of confinement in the

Arkansas Department of Correction for a period not to exceed fifteen years. Ark. Code

Ann. § 16-90-120 (Repl. 2016).

On appeal, appellant argues that there is no dispute that Brown was shot while

standing at his front door. However, appellant argues that the State failed to provide

substantial evidence—either direct or circumstantial—that appellant was the individual who

shot Brown. Although appellant acknowledges that Brown identified appellant as the

person who shot him, appellant argues that Brown’s testimony was inconsistent and there

was no corroboration of Brown’s testimony. Appellant specifically points out that Brown

first used the word “y’all” but later testified that only appellant was at his front door.

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Appellant also points out that Brown may not have seen Rip because Rip was wearing all

dark-colored clothing. Further, appellant explains that Brown testified that he had

remembered seeing a .32 caliber gun on appellant’s table; yet, law enforcement only found

a shell casing from a .25 caliber bullet at the scene. In essence, appellant contends that

Brown’s testimony was not credible and that there was no corroborating evidence to

indicate that it was him who shot Brown.

Notwithstanding appellant’s argument, we find that Brown’s testimony that it was

appellant who shot him constitutes substantial evidence to support the jury’s verdict. We

have held that the uncorroborated testimony of one State’s witness can be sufficient to

sustain a conviction. Watkins v. State, 2009 Ark. App. 124, 302 S.W.3d 635 (citing Gray v.

State, 318 Ark. 601, 888 S.W.2d 302 (1994)). Weighing the evidence, reconciling conflicts

in the testimony, and assessing credibility are matters exclusively for the trier of fact—in this

case, the jury. West v. State, 2017 Ark. App. 416, 530 S.W.3d 355. The jury may accept

or reject any part of a witness’s testimony. Id. Inconsistent testimony does not render proof

insufficient as a matter of law, and one eyewitness’s testimony is sufficient to sustain a

conviction. Id. Accordingly, we affirm appellant’s conviction.

Affirmed.

GLADWIN and BARRETT, JJ., agree.

McKay Law Firm, PLLC, by: Matthew McKay, for appellant.

Leslie Rutledge, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.

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