ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION III

ROBERT S. HAMPTON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-1313

November 12, 2003

APPEAL FROM THE ASHLEY COUNTY CIRCUIT COURT

[NO. CR-2001-249-2]

HONORABLE SAM POPE, JUDGE

REVERSED AND REMANDED

Terry Crabtree, Judge

On May 6, 2002, a jury sitting in the Ashley County Circuit Court convicted the appellant, Robert Hampton, of nonsupport in the amount of $6,437.10, a Class D felony. As a result, appellant was placed on supervised probation for a term of seventy-two months and was ordered to pay restitution at a rate of $50 per week. The trial court suspended his probation fees for six months and ordered him to pay court costs within ninety days. On appeal, he presents three issues for our consideration: (1) whether the trial court erred in refusing to grant him a directed verdict; (2) whether the trial court erred in overruling his hearsay objection; and (3) whether the trial court erred in denying his motion in limine. We reverse and remand.

We are mindful of the well-established standard of review in cases challenging the sufficiency of the evidence. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002). We review the sufficiency of the evidence before considering any alleged trial error and in doing so we must consider all the evidence, including any which may have been inadmissible. Williams v. State, 54 Ark. App. 352, 927 S.W.2d 801 (1996). When reviewing the denial of a directed verdict, the appellate court will look at the evidence in the light most favorable to the State, considering only the evidence that supports the judgment or verdict. Swaim v. State, 78 Ark. App. 176, 79 S.W.3d 853 (2002). We affirm a conviction if substantial evidence exists to support it. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id.

Arkansas Code Annotated section 5-26-401(a)(2) (Supp. 2001) states that a person commits the offense of nonsupport if he fails to provide support to "his legitimate child who is less than eighteen (18) years old." Appellant argued below in his motion for directed verdict and again on appeal that the State failed to prove that his son was less than eighteen years of age.

At trial, after the parties concluded their examination of Paul Selby, an employee of the Office of Child Support Enforcement in Monticello, Arkansas, the trial court posed a question to the witness. The court asked, "Mr. Selby, who is the child support being paid for?" Selby replied, "Chad Hampton. Chad Hampton is Robert Hampton and Ann Barnett's son who, I believe has turned seventeen." At that time, defense counsel interjected, "Your Honor, I'm going to object to this because there's no way this gentlemen (sic) would know other than hearsay." The trial court overruled the objection, and the State rested. In our review of the sufficiency of the evidence, we must consider Selby's testimony even if it were inadmissible. See Williams, supra. Furthermore, our standard of review requires us to view the evidence in the light most favorable to the State. Swaim, supra.

The jury, sitting as the trier of fact, must have interpreted Selby's statement, "[the child] who, I believe has turned seventeen," to mean that Selby considered it to be true that the child was less than eighteen. The jury is free to believe all or part of a witness' testimony. Williams v. State, 351 Ark. 215, 91 S.W.3d 54 (2002). The weighing of the evidence lies within the province of the jury, and we are bound by its determination on the credibility of witnesses. Id. Indeed, after a jury has given credence to a witness' testimony, this court does not disregard it unless it was so inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980). We cannot say that Selby's testimony falls into that category. Consequently, we believe that the State sufficiently proved that appellant's child was less than eighteen years old.

Next, appellant challenges that trial court's decision to overrule his objection to hearsay and allow Selby's testimony as to the child's age. Arkansas Rule of Evidence 801(c) defines hearsay as, "a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." Such testimony is generally inadmissible. See Ark. R. Evid. 802. A trial court is accorded wide discretion in evidentiary rulings. Hawkins v. State, 348 Ark. 384, 72 S.W.3d 493 (2002). We will not reverse a trial court's ruling on a hearsay question unless the appellant can demonstrate an abuse of discretion. Id. We are convinced that the trial court abused its discretion in this instance. Selby's testimony and knowledge about the child's age was based on hearsay pursuant to Ark. R. Evid. 801(c). Further, Selby's statement does not fall within any of the exceptions to the hearsay rule contained in Ark. R. Evid. 803. As a result, the trial court should have excluded the testimony. Accordingly, we reverse and remand for a new trial.

For appellant's third point on appeal, he maintains that the trial court erred in denying his motion in limine. We need not reach this argument inasmuch as we have reversed and remanded on the second issue.

Reversed and remanded.

Hart and Roaf, JJ., agree.