Jimmy Ray James v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOSEPHINE LINKER HART, JUDGE

DIVISION I

JIMMY RAY JAMES

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-204

September 27, 2000

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR99-1624]

HONORABLE JOHN BERTRAN PLEGGE, CIRCUIT JUDGE

AFFIRMED IN PART; REVERSED AND DISMISSED IN PART

At a bench trial, appellant, Jimmy Ray James, was found guilty of first-degree terroristic threatening, a felony, and third-degree domestic battering, a misdemeanor, and was sentenced to probation for a total of thirty-six months. While appellant does not challenge the sufficiency of the evidence to support the felony conviction, appellant argues on appeal that the evidence presented was insufficient to support his conviction for third-degree domestic battery because the State failed to prove the victim suffered a physical injury. Further, appellant argues that the trial court improperly considered as evidence the remarks of a deputy prosecutor who was not sworn in as a witness. We reverse and dismiss his conviction for third-degree domestic battery. We further conclude that the court's consideration of the deputy prosecutor's unsworn remarks was not prejudicial to appellant and therefore affirm his conviction for first-degree terroristic threatening.

In reviewing challenges to the sufficiency of the evidence, we affirm if there is substantial evidence to support the conviction. See, e.g., Allen v. State, 64 Ark. App. 49, 977 S.W.2d 230 (1998). A person commits third-degree domestic battering if, "[w]ith the purpose of causing physical injury to a family or household member, a person causes physical injury to a family or household member." Ark. Code Ann. § 5-26-305(a)(1) (1997). "Physical injury," as defined at the time the crime occurred, meant "the impairment of physical condition or the infliction of substantial pain." Ark. Code Ann. § 5-1-102(14) (1997).1 In determining whether an injury inflicted substantial pain, we consider the severity of the attack and the sensitivity of the area injured. See Allen, supra.

The victim, Betty Lou Beck, testified that during an argument, appellant, her ex-husband, with whom she currently resides, pushed her down, causing her to cut her hand when she hit it on something. She testified that the scratch bled "a little bit." Randy Howard, a deputy with the Pulaski County Sheriff's Office, testified that when he contacted her, Beck was crying, shaking, and hysterical. Howard observed an injury to Beck's left hand and to her mouth, but stated that she did not need medical attention. Appellant also testified regarding Beck's injuries. He stated that he shoved her backwards hard, or "kind of hit her" on her face, causing her to fall and pull off a piece of corner molding that scratched her hand. He further testified that she had a "fat lip," but that it was not bleeding.

Based on these facts, there was not substantial evidence to support appellant's conviction for third-degree domestic battering because the evidence did not establish that Beck suffered a physical injury as defined by Ark. Code Ann. § 5-1-102(14) (1997). Beck's physical condition was not impaired, and she did not testify that she suffered any pain from either injury. And, while the lip may be a sensitive area, she did not require medical treatment or even testify regarding the injury, and neither Beck nor appellant described the attack in a manner suggesting that the attack was severe. See Allen, supra (finding there was insufficient evidence of physical injury where, though several abrasions to the victim's forehead were "oozing" blood and the victim testified that the pain was "stinging," the attack was not severe, only amounting to a scuffle involving a single blow, and the victim did not need medical treatment and did not describe the injury as inflicting substantial pain). Thus, we must reverse and dismiss appellant's misdemeanor conviction.

During Betty Lou Beck's testimony, appellant attempted to impeach her as a witness by establishing that she had a prior felony conviction. Beck, however, denied that she had a felony conviction and testified that a "Jerri Kay Reynolds" had assumed her identity and had "bonded out" under her name. Appellant then offered a docket sheet and a judgment and disposition order from Pulaski County, case number CR 98-3495, with the name "Betty Jan Beck," showing convictions for robbery and misdemeanor theft of property. Appellant also offered a docket sheet and a judgment and disposition order from Pulaski County, case number CR 98-1570, with the name "Jerri Kay Reynolds," showing convictions for possession of methamphetamine, possession of drug paraphernalia, and theft by receiving. At that point, the court permitted a deputy prosecuting attorney, without being sworn in as a witness, to explain that Beck was correct and that Jerri Reynolds was using Betty Lou Beck's name. Appellant then objected to the deputy prosecutor testifying because he had been in the courtroom and was not provided to appellant as a witness. The court permitted appellant to introduce the documents into evidence but stated that Beck had testified that it was not her, that the deputy prosecutor had said that it was not her, and that the court did not believe it was her. Appellant then argued that what the deputy prosecutor said should not be considered as evidence. The court noted the objection.

Rule 603 of the Arkansas Rules of Evidence provides that "[b]efore testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken his conscience and impress his mind with his duty to do so." The court did not administer the requisite oath to the deputy prosecutor and yet relied in part on his remarks despite appellant's objection to the court's consideration of the remarks as evidence. Nevertheless, we will not reverse on the basis of nonprejudicial error. See, e.g., Keene v. State, 56 Ark. App. 42, 938 S.W.2d 859 (1997).

Here, the evidence introduced by appellant did not establish that Betty Lou Beck had prior felony convictions. The judgment and disposition order in case number CR 98-1570 was in the name of "Jerri Kay Reynolds," not Betty Lou Beck, and provided a birth date other than Betty Lou Beck's birth date. And even though in CR 98-3495, the name "Betty Jan Beck" appeared on the judgment and disposition order along with Betty Lou Beck's date of birth, the first notation on the accompanying docket sheet showed that the case wascontinued, with the "[i]nformation amended to change name to Jerr[i] Kay Reynolds." The docket further noted that sentence was to run concurrent with the sentence in "98-1570." Thus, the documents introduced by appellant established that Jerri Kay Reynolds, and not Betty Lou Beck, was properly charged with the felony convictions. Because White's unsworn remarks only corroborated evidence introduced by appellant, any error committed by the court's reliance on White's remarks was nonprejudicial. Thus, we affirm appellant's conviction for first-degree terroristic threatening.

Affirmed in part; reversed and dismissed in part.

Jennings and Griffen, JJ., agree.

1 The crime occurred prior to the 1999 amendment to Ark. Code Ann. § 5-1-102(14) (Supp. 1999), which was amended to include the "[i]nfliction of bruising, swelling, or visible marks associated with physical trauma" within the definition of "physical injury."