Cite as 2020 Ark. App. 551 ARKANSAS COURT OF APPEALS
DIVISION IV No. CR-20-15
TOYA BOSTON APPELLANT
V.
STATE OF ARKANSAS APPELLEE
Opinion Delivered December 9, 2020
APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NO. 18CR-16-664]
HONORABLE RANDY F. PHILHOURS, JUDGE
AFFIRMED
RAYMOND R. ABRAMSON, Judge
Toya Boston appeals her convictions of two counts of first-degree battery. She argues
that the circuit court erred by denying her directed-verdict motion and her motion to set
aside the verdict. We affirm.
On October 17, 2017, the State filed an amended criminal information charging
Boston with aggravated residential burglary and two counts of first-degree battery. The
charges related to her attack on Patrick Bufford and his thirteen-year-old son, S.P.B., on
July 8, 2016. The State later amended the charges to include a child enhancement. The
court held a jury trial on July 23, 2019.
At trial, the testimony showed that Boston poured a liquid cleaning substance on
both Patrick and S.P.B. that resulted in severe burns to their bodies. Patrick testified that
Boston entered his house without his knowledge and poured the substance on him while
he and S.P.B. were sleeping. He identified Boston as his attacker after he awoke to a burning
sensation on his face. S.P.B. could not recall exactly when Boston poured the substance on
him. He testified that his father’s screams woke him up and that he tried to help him but
that Boston pushed him to the ground.
At the close of the State’s case, Boston moved for a directed verdict on all charges.
She argued that the State presented “no proof that she did not act in self-defense.” The
court denied the motion.
Boston testified that Patrick invited her into his house and that a disagreement
ensued. She stated that both Patrick and S.P.B. hit her and that she threw the cleaning
substance on them to defend herself. She noted that she grabbed the substance from Patrick’s
bathroom during the altercation.
Boston renewed her directed-verdict motion at the conclusion of her case. She
argued that “there is evidence that she was acting in self-defense” and that “she cannot be
guilty of the battery when justification applies.” The court denied the motion.
The court thereafter instructed the jury that Boston was asserting justification as a
defense to the first-degree-battery charges. Specifically, the jury was instructed that
justification was a defense only if Boston reasonably believed that Patrick and S.P.B. were
committing, or about to commit, second-degree battery and if Boston used only such force
as she reasonably believed was necessary. The jury was further instructed that a person is not
justified in using deadly physical force if she knows that the use of deadly physical force can
be avoided by retreating; however, she is not required to retreat if she is unable to retreat
with complete safety and if she was not the original aggressor.
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The jury acquitted Boston of aggravated residential burglary but found her guilty of
two counts of first-degree battery and the child enhancement. She was sentenced to forty
years in the Arkansas Department of Correction.
Following her conviction, Boston moved to set aside the verdict. She argued that
the jury’s guilty verdicts on two counts of first-degree battery were inconsistent with her
acquittal of aggravated residential burglary. The court denied the motion. This appeal
followed.
On appeal, Boston first argues that the circuit court erred by denying her motion for
a directed verdict on the two counts of first-degree battery. She asserts that the State failed
to prove that she did not act in self-defense.
In order to preserve a challenge to the sufficiency of the evidence in a jury trial, a
criminal defendant must move for directed verdict at the close of the evidence offered by
the prosecution and at the close of all the evidence. Ark. R. Crim. P. 33.1(a). A motion for
directed verdict shall state the specific grounds therefor. Maxwell v. State, 373 Ark. 553, 559,
285 S.W.3d 195, 200 (2008). Without a circuit court ruling on a specific motion, there is
nothing for this court to review. Id. Failure to abide by these procedural rules renders any
question of the sufficiency of the evidence waived on appeal. Ark. R. Crim. P. 33.1(c);
Bradley v. State, 2013 Ark. 58, 426 S.W.3d 363. An appellant must make a specific motion
for a directed verdict that advises the circuit court of the exact element of the crime that the
State has failed to prove. Conley v. State, 2011 Ark. App. 597, 385 S.W.3d 875. Rule 33.1
is strictly construed. Pratt v. State, 359 Ark. 16, 194 S.W.3d 183 (2004).
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In Kinsey v. State, our supreme court held that the appellant’s argument that the State
failed to negate his justification defense was not preserved for review because he made only
a general motion to the circuit court and did not identify specifically how the State’s proof
was insufficient to meet its burden. 2016 Ark. 393, 503 S.W.3d 772. The court noted that
the specific elements would include “whether the State failed to show that [the appellant]
lacked a reasonable belief that the victims were about to use deadly force; whether the State
failed to demonstrate that [the appellant] could not have retreated safely; or whether the
State failed to demonstrate that the victims were not committing, or were about to commit,
a felony involving force or violence.” Id. at 9, 503 S.W.3d at 778; see also Woods v. State,
2018 Ark. App. 256, at 4, 548 S.W.3d 832, 835 (holding that the appellant failed to preserve
her sufficiency argument on her justification defense when she made a general motion that
she was “defending her sons”).
Similarly, in this case, Boston generally argued that the State failed to prove that she
did not act in self-defense. She did not offer a specific element that the State failed to
disprove. Accordingly, we cannot address the merits of Boston’s argument.
Boston also argues that the circuit court abused its discretion by denying her motion
to set aside the verdict. She argues that the jury’s acquittal of aggravated residential burglary
is inconsistent with its guilty verdicts on two counts of first-degree battery.
Her argument is without merit. We are without authority to overrule decisions made
by the supreme court. Roark v. State, 46 Ark. App. 49, 876 S.W.2d 596 (1994). It is well
settled that a defendant may not attack her conviction based on inconsistency. Mercouri v.
State, 2016 Ark. 37, 480 S.W.3d 864. “A jury may convict on some counts but not on
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others and may convict in different degrees on some counts because of compassion or
compromise and not solely because there was insufficient evidence of guilt.” Jordan v. State,
323 Ark. 628, 631, 917 S.W.2d 164, 165 (1996). “‘[T]he jury is free to exercise its historic
power of lenity if it believes that a conviction on one count would provide sufficient
punishment.’” McVay v. State, 312 Ark. 73, 77, 47 S.W.2d 28, 30 (1993) (quoting United
States v. Romano, 879 F.2d 1056 (2d Cir. 1989)).
1 Accordingly, the circuit court did not err
by denying Boston’s motion to set aside the verdict.
We therefore affirm Boston’s convictions of two counts of first-degree battery.
Affirmed.
WHITEAKER and MURPHY, JJ., agree.
James Law Firm, by: William O. “Will” James III and William O. “Bill” James, Jr., for
appellant.
Leslie Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.
1 We further point out that the jury’s verdicts do not appear inconsistent. A person commits aggravated residential burglary if she commits residential burglary, as defined in Arkansas Code Annotated section 5-39-201, of a residential occupiable structure occupied by any person, and she inflicts or attempts to inflict death or serious physical injury upon another person. Ark. Code Ann. § 5-39-204(a)(2) (Repl. 2013). A person commits residential burglary if she enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing in the structure any offense punishable by imprisonment. Ark. Code Ann. § 5-39-201(a)(1). A person commits first-degree battery, if with the purpose of seriously and permanently disfiguring another person, the person causes such an injury to any person. Ark. Code Ann. § 5-13-201(a)(2) (Supp. 2019). It is possible for the jury to have concluded that Boston committed first-degree battery against Patrick and S.P.B. regardless of whether she was lawfully or unlawfully present in their home.
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