NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION II

CACR01-1313

OCTOBER 23, 2002

GREGORY LAMON MACKINTRUSH AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT v. [CR2000-2810]

STATE OF ARKANSAS HONORABLE DAVID BOGARD,

APPELLEE JUDGE

AFFIRMED

Appellant was charged with residential burglary, felon in possession of a firearm, and two counts of second-degree battery. Following a jury trial, he was found guilty of each charge and was sentenced as a habitual offender to serve 110 years in the Arkansas Department of Correction. For reversal, appellant argues that the trial court erred in denying his motions for directed verdict on the residential burglary charge and felon in possession of a firearm charge. He does not challenge the second-degree battery charges. Finding no error, we affirm.

A motion for a directed verdict is a challenge to the sufficiency of the evidence to support the verdict. Whitfield v. State, 346 Ark. 43, 56 S.W.3d 357 (2001). This court will affirm a conviction if there is substantial evidence to support the verdict whenviewed in the light most favorable to the State. Id. (citing Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000), cert. denied, 531 U.S. 1081 (2001)). Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere speculation or conjecture. Alexander v. State, 78 Ark. App. 56, 77 S.W.3d 544 (2002). Substantial evidence may be circumstantial or direct. Whitfield v. State, supra. Circumstantial evidence must exclude every other reasonable hypothesis than that of the guilt of the accused in order to be substantial, and whether it does is a question for the jury. Alexander v. State, supra. The jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State's account of the facts rather than the defendant's. Alexander v. State, supra.

The offense of residential burglary requires proof (1) that the defendant entered or remained unlawfully in an occupiable structure of another person and (2) that he did so with the purpose of committing an offense punishable by imprisonment. Atkins v. State, 63 Ark. App. 203, 979 S.W.2d 903 (1998); see also Ark. Code Ann. § 5-39-201 (Repl. 1997). The State is required to prove each and every element of the offense.  Atkins v. State, supra.

Appellant argues that the State failed to prove that he unlawfully entered the residence or that he did so with the purpose of committing a crime; however, the latter argument is not preserved. In order to preserve a challenge to the sufficiency of the evidence on appeal in a jury trial, an appellant must move for directed verdict at the close of the State's case and at the close of all of the evidence. See Ark. R. Crim. P. 33.1(a)(2002). "A motion for directed verdict or dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient." Ark. R. Crim. P. 33.1(c) (2002). In his motion for directed verdict, appellant's counsel argued, "I don't think there's sufficient evidence on the residential burglary to say that he entered unlawfully into the apartment." At the close of all of the evidence, appellant's counsel renewed his motion, stating, "I think that there's no testimony that he entered that residence unlawfully. . . ." Although appellant's motion does preserve a challenge to the unlawful entry element of the crime, it fails to preserve a challenge to the criminal intent element.

As to the unlawful entry, substantial evidence supports the verdict. To "enter or remain unlawfully means to enter or remain in or upon premises when not licensed or privileged to do so." Ark. Code Ann. § 5-39-101(4) (Repl. 1997). Entry does not require the use of force. See Sims v. State, 272 Ark. 308, 613 S.W.2d 820 (1981) (defendant did not have privilege or license to enter a closed door which had "employees only" sign on it); LeFlore v. State, 17 Ark. App. 117, 704 S.W.2d 641 (1986) (a defendant's license or privilege to go into one section of the courthouse for the purpose of retrieving his tools did not authorize him to go into other unauthorized areas for the purpose of committing theft). At trial, Kuanda Cole testified that she and her cousin, Morris Wright, were at Shanna Banks's mother's apartment where Ms. Cole was babysitting Ms. Banks's two children. She was unsure whether Ms. Banks lived in the apartment with her mother. Appellant is the father of the two children. Ms. Cole stated that she saw appellant pull upin a Suburban. She testified that when he pulled up she was "thinking he wasn't supposed to be there, [so she] got up and made sure the doors and everything were locked." To Cole's knowledge, appellant did not live at the apartment or have a key. She testified that appellant rattled at the door for while, and when she saw that he could not get in, she went to the bathroom. Appellant did not knock at the door or ring the doorbell. When Cole came out of the bathroom, appellant was in the house. Ms. Cole acknowledged that she did not see the appellant enter the house and did not know how he got in; however, she testified that he had a set of keys and a screwdriver in his hand.

Ms. Cole testified that when she walked to a room in the back of the apartment, she saw appellant on top of her cousin, Morris Wright, stabbing him. She asked appellant to leave and he refused. She then noticed that appellant had a gun "coming from his side" and that appellant and Wright were tussling over the gun. Ms. Cole took the children to a neighbor's house and called the police. When Cole heard her cousin calling for her, she went back to the apartment where she found appellant and Wright still tussling over the gun. She testified that both men had their hands on the gun. Wright told Cole to grab the gun, but she was unable to reach it. Wright died prior to trial from unrelated causes.

Officer James Hathcock responded to the incident and testified for the State that he noticed that "the door had been forced open." He thought "it was forced open by being kicked or a body pushing up against it." He testified that he got the information in his report that appellant forced his way into the apartment from Ms. Cole, but did not remember how Cole said appellant got in -- whether "he kicked it in or had a key or withthe hammer or whatever." When the officer entered the apartment, he observed "two males in a hallway fighting." The officer saw the men tussling over a gun. He stated that appellant had sole possession of the gun and that Wright held the gun barrel away from him. Both men failed to release the loaded gun right away when ordered to do so.

Officer Linda Mandrell also responded to the scene and testified that when she arrived, she saw the two men at the end of the hallway fighting. She testified that appellant had the gun and that Wright told her that "I'm not turning him loose until you get the gun." Officer Mandrell further testified that the door looked like it had been pried or forced open. She stated that she had responded to burglary scenes where doors had been forced open once or twice a week for seven years and that "it's very identifiable," and that this entry "looked the same as those to [her]."

Shanna Banks testified on appellant's behalf. She stated that she had seen Wright with a similar gun the previous day. Banks did not provide any testimony about whether appellant had authority to enter her mother's apartment. Based on the foregoing circumstantial evidence, a jury could find that appellant unlawfully entered the residence; therefore, we affirm on this point.

Appellant next argues that the trial court erred in denying his directed-verdict motion on the felon in possession of a firearm charge. When the State accuses a defendant of being a felon in possession of a firearm, the State must prove beyond a reasonable doubt that the person is a felon, that is, has been convicted of a prior felony. Leatherwood v. State, 69 Ark. App. 233, 11 S.W.3d 571 (2000); see also Ark. Code Ann.§ 5-73-103 (Supp. 2001). Neither actual physical possession nor ownership is necessary for conviction. Harper v. State, 17 Ark. App. 237, 707 S.W.2d 332 (1986). "Possess" means to exercise actual dominion, control, or management over a tangible object; dominion implies wide latitude and is defined as including even the right to possession; the word "actual" does not reduce the usage to one of literal or physical possession. Id.; see also Ark. Code Ann. § 5-1-102(15) (Supp. 2001).

As the facts above illustrate, substantial evidence supports appellant's conviction. Ms. Cole testified that appellant had the gun. Further, Officers Hathcock and Mandrell both testified that appellant had possession of the gun during the altercation with Wright.

Affirmed.

Vaught and Roaf, JJ., agree.