ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION III

STEVEN T. HIGGINS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-179

OCTOBER 10, 2001

APPEAL FROM THE CRAIGHEAD

COUNTY CIRCUIT COURT

WESTERN DISTRICT

[NO. CR-2000-353]

HONORABLE JOHN NELSON

FOGLEMAN, CIRCUIT JUDGE

AFFIRMED

Appellant Steven T. Higgins was convicted of attempted rape by use of a deadly weapon and attempted robbery, for which he was sentenced to fifty years and twenty-four years, respectively, in the Arkansas Department of Correction. He does not appeal the robbery conviction, but he does appeal the attempted rape conviction as entered by the Craighead County Circuit Court after a jury trial. His arguments on appeal are (1) that the attempted rape conviction is not supported by sufficient evidence, (2) that Ark. Code Ann. § 16-20-121 (Repl. 1999), regarding use of a "deadly weapon" is void for vagueness, and (3) that if the statute is not void for vagueness, then a screwdriver does not constitute a deadly weapon. We find none of appellant's arguments persuasive and therefore affirm.

Appellant filed timely motions for directed verdict, which were denied, preserving his right to contest the sufficiency of the State's evidence against him. A motion for adirected

verdict is a challenge to the sufficiency of the evidence. Barr v. State, 336 Ark. 220, 984 S.W.2d 792 (1999). The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996); Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996). Circumstantial evidence may constitute substantial evidence, but it must exclude every other reasonable hypothesis consistent with innocence. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000); Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999). Whether the evidence excludes every other reasonable hypothesis is left to the jury to determine. Williams, supra. On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Barr v. State, supra. We make no distinction between direct and circumstantial evidence when reviewing the sufficiency of the evidence. Williams, supra.

Appellant first argues on appeal that the State's evidence was insufficient to prove that he had the intent to commit rape or that he took a substantial step toward accomplishing that purpose. We disagree. The evidence at the jury trial, viewed in the light most favorable to the State, revealed that on April 27, 2000, at approximately 5:00 a.m., the victim, D.F., was in her apartment when appellant knocked on her door looking for D.F.'s boyfriend. D.F. was eight months pregnant at the time. When D.F. opened the door, appellant entered. Appellant was an acquaintance of D.F.'s boyfriend, and appellant had called earlier, around2:30 or 3:00 a.m., looking for him, but D.F. had told appellant that he was not there. Appellant had a brief discussion with D.F. about where her boyfriend was, after which appellant suddenly struck D.F. on the side of her face, knocking her to the floor and causing a lens to come out of her eyeglasses. D.F. looked for the lens on the floor and then attempted to escape out the front door, but appellant dragged her back inside.

As appellant was locking the door with the chain, D.F. picked up her telephone and dialed 911. Appellant hung the telephone up and asked D.F. if she had any money. A 911 operator called back, since the last call was terminated. D.F. told appellant that it was a friend who would be worried about her if she did not answer the telephone. Appellant let her answer the phone, but D.F. was unable to tell the operator what was happening because appellant was right beside her on the couch. The operator detected that something was awry and decided to send a police officer to the apartment. Appellant scooted closer and closer to her on the couch. When D.F. moved as far to the end of the couch as she could, appellant knelt down to his knees, moved D.F.'s knees apart, and scooted up between her legs. Appellant then placed a screwdriver near D.F.'s abdomen. Appellant said he was going to show her something, and he began to unbuckle his pants. D.F. began to resist appellant as he pulled her shirt up, but appellant held the screwdriver as if he were going to stab her in the stomach with it. The police arrived and knocked at the door. As appellant answered the door with his pants down near his knees, he tossed the screwdriver to the side. The officer testified that he smelled of alcohol. D.F. was crying and screaming to the officer, "He tried to rape me."

Rape is defined as engaging in sexual intercourse or deviate sexual activity with another person by forcible compulsion. Ark. Code Ann. § 5-14-103(a)(1) (Repl. 1997). A person attempts to commit a criminal offense if he purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of the offense. Ark. Code Ann. § 5-3-201(a)(2) (Repl. 1997). Proof of an assailant's intention to have sexual intercourse with a victim is not sufficient unless an intention to accomplish that purpose by force may be ascertained from acts or words connected with the assault and there is some overt act taken toward the accomplishment of that purpose. Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908 (1988); Hagen v. State, 47 Ark. App. 137, 886 S.W.2d 889 (1994). In Hagen, supra, we found the following evidence sufficient to support a conviction for attempted rape of a victim, who was nine months pregnant:

Hagen v. State, 47 Ark. App. at 140. Evidence was also presented that appellant Hagen held a fist to his victim's stomach and said, "One punch and your baby's dead." Id. at 139.

The evidence presented to this jury, that appellant spread the victim's legs apart, unbuckled his pants and had them to his knees, and told her that he wanted to show her something, while intermittently holding a screwdriver near her stomach, was sufficient evidence from which the jury could conclude that appellant had the intent to commit rape. As was held in Summerlin, supra, the record may support appellant's claim that he actually voiced no intent to rape the victim, but appellant's actions speak louder than words when trying to assign a purpose to the conduct displayed by appellant on this occasion. Intent is rarely capable of proof by direct evidence and must usually be inferred from the circumstances. See, e.g., Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000); Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997); Poole v. State, 234 Ark. 593, 353 S.W.2d 359 (1962). There was sufficient circumstantial evidence to support a finding by the jury of inferred intent, and appellant's acts were sufficient evidence of a substantial step toward that purpose. Appellant's other argument on appeal is that the statute under which he was prosecuted, Ark. Code Ann. § 16-90-121 (Repl. 1997), is void for vagueness. That statute reads:

Appellant avers that the term "deadly weapon" is void for vagueness, and, alternatively, that a screwdriver cannot be considered a deadly weapon. We disagree with both of his contentions.

Our supreme court set forth the procedures for determining whether a statute is unconstitutionally vague in State v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992):

The norm by which we determine when a statute is void-for-vagueness is whether it lacks ascertainable standards of guilt such that persons of average intelligence must necessarily guess at its meaning and differ as to its application. The law must give fair warning in definite language of the prohibited act. In addition to fair warning, a statute is also void-for-vagueness if it is so broad that it becomes susceptible to discriminatory enforcement. Nevertheless, flexibility, rather than meticulous specificity or great exactitude, in a statute is permissible as long as its reach is clearly delineated in words of common understanding. Moreover, impossible standards of specificity are not constitutionally required, even in criminal statutes. A statute will meet constitutional muster if the language conveys sufficient warning when measured by common understanding and practice. Additionally, it is not necessary that all kinds of conduct falling within the reach of the statute be particularized and the statute will not be struck down as vague only because marginal cases could be put where doubts might arise.

309 Ark. at 424-425. (Citations omitted.) See also Dougan v. State, 322 Ark. 384, 912 S.W.2d 400 (1995); Thornton v. State, 317 Ark. 626, 883 S.W.2d 453 (1994); Leavy v. State, 314 Ark. 231, 862 S.W.2d 832 (1993); Manatt v. State, 311 Ark. 17, 842 S.W.2d 845, cert. denied 507 U.S. 1005, 113 S.Ct. 1647, 123 L.Ed.2d 268 (1992).

Arkansas Code Annotated section 5-1-102(4) (Repl. 1997) defines deadly weapon as including in subsection (B) "anything that in the manner of its use or intended use is capable of causing death or serious physical injury." Thus, a definition exists to explain what "deadly weapon" means. Appellant argues that it is improper to refer to this definition because it is in another chapter of the Code. Although it is in a different chapter, we disagree that it is improper to refer to it. The Original Commentary to section 5-1-102 states that most terms in the Code are defined in the initial section of the chapter to which they apply, but that "the use of some terms is so pervasive that this procedure was infeasible. These terms are defined here."

We conclude that section 16-90-121 conveys fair and sufficient warning when measured by common understanding. Under these circumstances, we hold that this statute is sufficiently clear to overcome the appellant's vagueness challenge.

To the extent that appellant argues that a screwdriver does not fall within the parameters of "a deadly weapon," we disagree. Appellant is correct when he states that a screwdriver is not commonly used as a deadly weapon, but otherwise non-injurious items are deadly weapons if used in a manner intended to inflict death or serious physical injury. See, e.g., Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996) (holding that scissors clearly fall within the definition of deadly weapon); Jones v. State, 292 Ark. 183, 729 S.W.2d 10 (1987) (holding that a five-foot length of pipe was capable of causing death or serious physical injury); Harmon v. State, 260 Ark. 665, 543 S.W.2d 43 (1976) (holding that an automobile was a deadly weapon). A screwdriver used under the circumstances described by the victim herein undoubtedly qualifies as an object that in the manner of its use or intended use is capable of inflicting death or serious injury.

We affirm appellant's conviction of attempted rape by use of a deadly weapon.

Baker and Roaf, JJ., agree.