                                Cite as 2014 Ark. App. 572



                ARKANSAS COURT OF APPEALS
                                      DIVISION IV
                                      No. CR-13-978


DERRICK LAMONT BOOTH                           Opinion Delivered   October 22, 2014
                 APPELLANT
                                               APPEAL FROM THE PULASKI
V.                                             COUNTY CIRCUIT COURT,
                                               FIFTH DIVISION
STATE OF ARKANSAS                              [NO. 60CR-12-3455]
                                APPELLEE
                                               HONORABLE WENDELL L.
                                               GRIFFEN, JUDGE

                                               AFFIRMED



                           WAYMOND M. BROWN, Judge

       On October 5, 2012, at around 4:20 p.m., Little Rock firemen were dispatched to

3 Althea Circle, the address of a house owned by Jacqueline Booth-Clark, appellant’s wife.

When the firemen arrived at the house, light smoke was coming from a bedroom on the

right side of the residence. The house’s doors were locked and the windows were closed.

The firemen entered the house by breaking down the front door, and extinguished a fire

they found inside a bedroom. The door to this bedroom had been shut.

       A jury trial was held on July 9–10, 2013. At trial, appellant moved for a directed

verdict at the close of the State’s case alleging that the State failed to present sufficient

evidence that he set a fire at his wife’s home. 1 His motion was denied. At the close of all


       1
       While appellant and his wife, who was the owner of the home, were married, they
were separated at the time of the fire. At the time of the fire, appellant’s wife was living
with her mother and appellant was living in the home.
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the evidence, appellant renewed his motion. The court again denied his motion. The jury

found appellant guilty of Class A felony arson. In the sentencing phase, the jury could not

reach a sentencing verdict. In lieu of the jury sentencing appellant, the circuit court judge

sentenced him, as a habitual offender, to serve twelve years’ imprisonment. A sentencing

order reflecting the same was entered on July 24, 2013. It is from this order that appellant

timely appeals.

       Appellant argues that the circuit court erred by not directing a verdict in his favor

on the arson charge. The State argues that the circuit court correctly denied the appellant’s

directed-verdict motion because there was sufficient evidence to convict him of arson.

       A motion for directed verdict is a challenge to the sufficiency of the evidence. 2 In a

challenge to the sufficiency of the evidence, this court views the evidence in the light

most favorable to the State and considers only the evidence that supports the conviction. 3

In reviewing a challenge to the sufficiency of the evidence, this court determines whether

the verdict is supported by substantial evidence, direct or circumstantial. 4 Evidence is

substantial if it is of sufficient force and character to compel reasonable minds to reach a

conclusion and pass beyond suspicion and conjecture. 5 We affirm a conviction if


       2
         Washington v. State, 2010 Ark. App. 596, at 6, 377 S.W.3d 518, 522 (citing Tryon
v. State, 371 Ark. 25, 263 S.W.3d 475 (2007)).
       3
         King v. State, 2014 Ark. App. 81, at 2, 432 S.W.3d 127, 129 (citing Daniels v.
State, 2012 Ark. App. 9, at 1–2).
       4
      Laswell v. State, 2012 Ark. 201, at 4, 404 S.W.3d 818, 823 (citing Smoak v. State,
2011 Ark. 529, 385 S.W.3d 257.).
       5
           King, supra (citing Heydenrich v. State, 2010 Ark. App. 615, 379 S.W.3d 507).


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substantial evidence exists to support it. 6 The trier of fact resolves the questions of

conflicting testimony, inconsistent evidence, and credibility. 7 We will disturb the jury’s

determination only if the evidence did not meet the required standards, thereby leaving

the jury to speculation and conjecture in reaching its verdict. 8

       For circumstantial evidence to be relied on, it must exclude every other reasonable

hypothesis other than the guilt of the accused, or it does not amount to substantial

evidence. 9 The question of whether circumstantial evidence excludes every other

reasonable hypothesis consistent with innocence is for the fact-finder to decide. 10 On

review, this court must determine whether the fact-finder resorted to speculation and

conjecture in reaching the verdict. 11

       Appellant was charged with arson. A person commits arson if he or she starts a fire

with the purpose of destroying or otherwise damaging an occupiable structure that is the

property of another person. 12 Appellant contends that the circuit court erred in denying


       6
      Harris v. State, 2014 Ark. App. 448, at 2, ___ S.W.3d ___, ___ (citing Ali v. State,
2011 Ark. App. 758).
       7
           King, supra (citing Daniels, 2012 Ark. App. 9).
       8
       Laswell, supra, 2012 Ark. 201, at 4, 404 S.W.3d at 822 (citing Ellis v. State, 2012
Ark. 65, 386 S.W.3d 485).
       9
         Brawner v. State, 2013 Ark. App. 413, at 6, 428 S.W.3d 600, 605 (citing Lowry v.
State, 364 Ark. 6, 216 S.W.3d 101 (2005)).
       10
            Id.
       11
            Id.
       12
            Ark. Code Ann. § 5-38-301(a)(1)(A) (Supp. 2013).


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his motion for directed verdict. He argues that while the State proved that appellant had

opportunity and motive, it failed to provide additional evidence that would allow the jury

to reasonably infer that appellant set the fire.

       At trial, Captain Naim Salaam of the Little Rock Fire Department (LRFD) testified

that he and his crew were the first to arrive on the scene of the fire. He saw light smoke

coming from one of the bedroom windows. The home was secured; the front and back

doors were locked. While he did not participate in extinguishing the fire, he did enter the

home thereafter. While inside, he saw “a lot of damage in the kitchen[,]” including

broken glass that appeared to be from a dining room table. A bunch of clothing on the

floor was “definitely where the fire started[,]” but he was unable to ascertain an ignition

source—something electrical or flammable in nature—for the fire. Because, he testified, a

fire like the one in this case could smolder for a period of time before smoke would be

visible, he estimated that the fire may have been burning for “probably up to an hour or

so” before smoke was visible. There was not a lot of actual burning damage because there

was not enough oxygen in the room for the fire to grow due to the door and window to

the room being closed. He noted that there were “a lot” of household items on the floor

of other rooms, yet none of those rooms had a fire going.

       Captain Kevin Murphy of the LRFD and a member of the crew that entered the

home and extinguished the fire, also testified. He corroborated Salaam’s testimony that the

door to the room containing the smoldering fire was closed. He also testified that the

house looked like it had been “ransacked.” He had not moved anything in the home,

beyond opening the back sliding glass door for ventilation purposes.


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       Fire Marshall Ryan Baker, also with the LRFD, testified. His job was to determine

the origin and cause of a fire. The doorknob to the front door was locked, but not the

deadbolt. 13 He testified that the interior of the home was “in disarray” with things, such as

chairs and tables, “thrown around[,]” and a trash can in the dining room, which was

uncommon. He found a garden tool in the home and later found a television with gouges

in it that appeared to be consistent with use of the previously-found garden tool.

       Fire Marshall Baker testified that the fire was an incendiary fire—“a human act set

fire” that would not have occurred but for human involvement, “period.” “[N]o ignitable

liquids” were detected as having been used to start the fire; however, accelerants were not

necessary to have an incendiary fire. Paper had been used to start this fire. He ruled out all

other potential causes for the fire. He estimated damage to the structure at about

$15,000.00. After determining that the fire was incendiary, he spoke with Jacqueline, who

showed him a number of negative and threatening text messages she had received from

appellant between 1:28 p.m. and 2:45 p.m. 14 These text messages helped Baker identify

appellant as a suspect for setting the fire.

       Jacqueline Booth-Clark testified that she was living with her mother on the date of

the fire, as she had moved out of her home on October 2, 2012. While her niece had

lived at her house “off and on” in September 2012, she was not living there in October.

Only appellant was living in the house between October 3 and October 5, 2012. 15 Only


       13
            Firefighters had kicked in the door to gain access to the fire.
       14
            None of the messages had threats that appellant would burn her house down.
       15
            He had been in jail directly prior to these dates.
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Jacqueline, appellant, and her niece had keys to the home. She testified that when she

arrived at her home a with police escort to obtain some things from her home on the day

prior to the day of the fire, the house was not in disarray as it was after the fire; there had

been no damage to the home. Specifically, among other things, the trash can containing

pieces of her glass dining room table had not been in the dining room area where it was

after the fire, but in the driveway; and the garden tool had not been in the home.

       There was testimony from appellant’s mother, Geraldine McCarther, that on the

day of the fire, appellant was with her all day up until 2:40 p.m. She stated that she

returned to pick him up at 3:00 p.m.; however, appellant testified that he was at the home

all day by himself.

       Appellant testified that he sent “a lot of angry text messages,” but denied that he set

the fire at the home. He asserted that his anger was with the “nasty” way Jacqueline kept

the house as he was very neat; however, he admitted to being responsible for at least one

section in the home that was “very messy,” including empty beer cans and dirty dishes

with food still on them. He stated that the door to the “storage” room where the fire

began was closed while he was in the home. He admitted to a criminal conviction history

including terroristic threatening and multiple counts of battery.

       A great deal of this case hinges on testimony, whether that of Fire Marshall Baker,

appellant, or any of the other witnesses. While appellant’s testimony contradicts that of

other witnesses, the jury is free to believe all or part of any witness’s testimony and




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resolves questions of conflicting testimony and inconsistent evidence. 16 Reconciling

conflicts in the testimony and weighing the evidence are matters within the exclusive

province of the jury. 17 In assessing the weight of the evidence, a jury may consider and

give weight to any false and improbable statements made by an accused in explaining

suspicious circumstances. 18 We hold that there was substantial evidence to overcome a

motion for directed verdict because there was evidence that appellant had opportunity and

motive; had displayed anger towards Jacqueline via text messages; and had acted on that

anger by destroying items in the home that were owned by Jacqueline.

      Affirmed.

      WHITEAKER and HIXSON, JJ., agree.

      Clint Miller, Deputy Public Defender, for appellant.

      Dustin McDaniel, Att’y Gen., by: Laura Shue, Ass’t Att’y Gen., for appellee.




      16
         Woodson v. State, 2009 Ark. App. 602, at 8, 374 S.W.3d 1, 5 (citing Gikonyo v.
State, 102 Ark. App. 223, 283 S.W.3d 631 (2008)).
      17
           Id. (citing Mitchem v. State, 96 Ark. App. 78, 238 S.W.3d 623 (2006)).
      18
       Laswell v. State, 2012 Ark. 201, at 5, 404 S.W.3d at 822 (citing Sullivan v. State,
2012 Ark. 74, 386 S.W.3d 507).
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