                                 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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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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