NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION IV

CACR00-1435

JUNE 13, 2001

KENNETH BUSH AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT [CR2000-284]

v.

STATE OF ARKANSAS HONORABLE JOHN W. LANGSTON, APPELLEE CIRCUIT JUDGE

AFFIRMED

Appellant Kenneth Bush was convicted by a jury of aggravated robbery and theft of property, and sentenced as a habitual offender to sixty years in the Arkansas Department of Correction. For his sole point on appeal, appellant challenges the sufficiency of the evidence to support his conviction of aggravated robbery.

On December 6, 1999, Allister Mosley, a quadriplegic, was alone at his apartment when he heard a knock on his front door. When he looked out of the peephole, he noticed that the person standing at the door was his friend, Thomas Smith. Mosley opened the door, and Smith walked into his apartment with appellant and two other persons. After one of the visitors went to use the bathroom, Mosley saw appellant "whisper something to Thomas." At that point, Mosley's telephone rang, and while he was answering it, Smith hit him on the head. According to Mosley, appellant then pointed "something at [him] in [appellant's] pocket" and told him "don't move or we're going to blast your ass." Thereafter, Smith stabbed Mosley and hit him in the head with a chair five times. Mosley testified that appellant and the others then robbed him of his television, VCR, and telephone. He testified that he sustained multiple wounds to his back, neck and eye as a result of the December 6 incident, and that he is permanently blind in his right eye from the attack. Appellant's sister, Brenda Bush, testified that she accompanied appellant to Mosley's home on December 6, 1999. Bush testified that Thomas Smith was responsible for attacking Mosely and that another man named Timothy Jackson was the person who "had his finger in his jacket." Bush denied that appellant had any involvement with the December 6 crimes against Mosely. Appellant now argues that the evidence presented by the State was insufficient to prove his guilt of aggravated robbery.

In reviewing a challenge to the sufficiency of the evidence, the appellate court reviews the evidence in a light most favorable to the State and considers only the evidence that supports the verdict. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000). The court does not reweigh the evidence but determines instead whether the evidence supporting the verdict is substantial. Id. 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. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999). The evidence may be either direct or circumstantial. Stewart v. State, 338 Ark.608, 999 S.W.2d 684 (1999). The credibility of witnesses is an issue for the jury and not for the appellate court. Henderson v. State, 337 Ark. 518, 990 S.W.2d 530 (1999).

According to Arkansas Code Annotated § 5-12-103(a) (Repl. 1997),

A person commits aggravated robbery if he commits robbery as defined in

§ 5-12-102, and he:

The evidence presented at trial, viewed in the light most favorable to the State, demonstrated that appellant, along with Thomas Smith and two other persons, went to Allister Mosely's apartment, where Smith stabbed Mosely with a knife and hit him in the head several times with a chair. Appellant pointed his pocket toward Mosely as if he was armed with a gun and robbed Mosely of his television, VCR, and telephone. Mosely subsequently sustained multiple wounds to the head and neck, and was permanently blinded in his right eye as a result of the attack.

Although appellant argues that the felony information "fatally varied" from the evidence presented at trial, which showed that Thomas Smith attacked the victim with a knife instead of himself, the evidence was sufficient to convict him of aggravated robbery by use of a knife as an accomplice.

Arkansas Code Annotated section 5-2-403 states as follows:

(1) Solicits, advises, encourages, or coerces the other person to commit it;or

(2) Aids, agrees to aid, or attempts to aid the other person in planning or

committing it; or

(3) Having a legal duty to prevent the commission of the offense, fails to make

proper effort to do so.

Ark. Code Ann. § 5-2-403 (Repl. 1997).

The evidence set out above was clearly sufficient to convict appellant of aggravated robbery.

Affirmed.

Hart and Vaught, JJ., agree.