Jennifer Epperson v. State of Arkansas

ar00-238

NOT DESIGNATED FOR PUBLICATION

DIVISION III

ARKANSAS COURT OF APPEALS

CACR00-238

November 29, 2000

JENNIFER EPPERSON AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CR99-512]

V. HON. JOHN B. PLEGGE,

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

WENDELL L. GRIFFEN, Judge

Following a bench trial, Jennifer Epperson received a first-degree battery conviction, and a sentence of ten years of imprisonment, with five years suspended. On appeal, Epperson argues that the evidence presented was insufficient to prove that she caused serious physical injury to the victim. She also contends that the trial court erred in finding that her actions were not justified. We affirm.

On February 19, 1998, Darrell Harrison was stabbed by appellant. According to the testimony adduced at trial, Harrison returned to his home with his wife and found appellant involved in a confrontation with his stepdaughter, Haley Miller. As appellant was using the phone, Harrison told her to get off the telephone and leave. Appellant told Harrison that sheneeded to get her things and began walking toward the laundry room. Harrison again told appellant to get out, and began to try to pull appellant out of the house. Harrison's wife attempted to break up the altercation. As they struggled, appellant fell into the china cabinet that was located in the dining room adjacent to the kitchen. Harrison then went into the kitchen area. Harrison's wife was also in the kitchen. She testified that when she looked up, appellant was coming toward Harrison with a knife which she swung at Harrison while yelling and cursing. Mrs. Harrison stated that she saw blood on Harrison's shirt and saw Harrison's intestines. She testified that Harrison drove himself to the hospital and that her daughter took appellant to the hospital.

Dr. Steven Williamson testified that he examined Harrison and found omentum protruding from an abdominal stab wound. Dr. Williamson testified that surgery was performed to determine if Harrison had a visceral injury, and that based on the surgery Dr. Williamson determined that Harrison's intestines were not penetrated, stabbed, sliced, or injured in any way.

Harrison testified that he grabbed appellant but did not intentionally push her into the china cabinet. He also testified that he did not have a weapon and that he never hit appellant. According to Harrison's testimony, after appellant fell into the china cabinet, appellant pulled a knife and began to swing the knife towards him. He testified that after appellant stuck him with the knife, she continued to swing. Harrison drove himself to the hospital and immediately underwent surgery. He was hospitalized for six days and continued to have problems with his stomach and his side even after he was discharged. Harrison testified thathis stomach bothered him at different times, that he constantly had heartburn when he ate certain foods, and that there were certain foods he could not eat anymore.

The court also heard testimony from Deputy Edward Collins, who investigated the incident and interviewed Harrison's wife and stepdaughter. Collins testified that Mrs. Harrison told him that Harrison took a swing at appellant and that Harrison pushed appellant into the china cabinet and caused appellant to cut her left wrist. Collins also testified that Mrs. Harrison told him that appellant pulled a knife, began swinging at Harrison, cut Harrison in the stomach, and continued to swing at Harrison.

Appellant testified in her own defense. She stated that she went over to the Harrisons' to do Mrs. Harrison's hair. Appellant testified that as she was waiting for Mrs. Harrison to return, she and Harrison's stepdaughter had an argument and that she went to call a cab. Appellant testified that after she got off the phone, Harrison got in her face and told her to leave. She testified that she began to scream and to tell Harrison not to hit her because she was angry. Appellant testified that Harrison grabbed her arm, carried her into the dining room, and that she ended up against the china cabinet. She stated that when she realized her arm was cut, she grabbed a kitchen knife from her back pocket to stab Harrison. Appellant testified that she did not know why she had the knife and that she "just had the knife in her back pocket." She stated that she felt appellant was trying to hurt her. Appellant testified that after she stabbed Harrison, he ran into the living room and charged after her with a pitchfork. She testified that she went out of the house and into the stepdaughter's car. Appellant testified that once she was in the car with the windows locked, Harrison began tobang on the car window. She testified that she didn't purposely harm Harrison, that she only wanted him to leave her alone, and that she thought she was in danger of being seriously injured.

Appellant initially challenges the sufficiency of the State's evidence and argues that the State failed to prove that Harrison suffered a serious physical injury or that appellant engaged in life endangering conduct. The State responds that it presented substantial evidence at trial that proved appellant stabbed Harrison and that as a result of the injury, Harrison was injured, required surgery and hospitalization, and continued to experience problems with his side and stomach at the time of the trial.

We review a sufficiency of the evidence challenge by determining whether the evidence, when viewed in favor of a conviction, supports the conviction. See Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). When this test is met, the evidence is considered substantial. See Harmon, supra. In a sufficiency challenge, we do not weigh evidence presented to a fact finder, or consider credibility issues. See Harmon, supra. Instead, our focus rests entirely on evidence that leans toward a finding of guilt. See Harmon, supra.

Arkansas Code Annotated section 5-13-201 (Repl. 1997) provides that a person commits first-degree battery when she purposely causes serious physical injury to someone through the use of a deadly weapon. Our statutes define a serious physical injury as an injury that "creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ." See Ark. Code Ann.§ 5-1-102(19) (Repl. 1997). We strictly construe penal statutes, with all doubts decided in favor of the defendant. See Tigue v. State, 319 Ark. 147, 889 S.W.2d 760 (1994).

Our supreme court has held that a conviction for first-degree battery requires some proof that the action created at least a possibility of death, and that the defendant had the requisite mental state to commit a life threatening action against the victim. See Tigue, supra. The State must prove both of these conditions to sustain a first-degree battery conviction. See Tigue, supra.

Harmon v. State, supra concerned a situation analogous to this case. In Harmon, the victim, Mr. Anglin, was severely beaten and testified that as a result of the beating, he suffered intense injuries that required treatment in an intensive care unit for a period of three days. Mr. Anglin further testified that as a result of the beating, he lost his sense of smell, taste, and memory, which continued at the time of trial. Although Harmon argued on appeal that the State did not prove that he inflicted a serious physical injury or that he purposely caused the injury, our supreme court disagreed and affirmed the trial court. In reaching its decision, the court held that whether a person sustains an injury that statutorily qualifies as a serious physical injury and whether an injury is temporary or permanent are issues for the fact finder to resolve. The court noted that although sixteen months had lapsed between the beating and the trial, Anglin continued to experience symptoms. It found this fact significant in supporting the trial court's decision that the State met its burden of proving Anglin suffered a serious physical injury.

Next, the Harmon court determined that a person acts purposely when "it is hisconscious object to engage in conduct of that nature or cause such a result." It reasoned that because a person presumptively intends the "natural and probable consequences of his acts," a fact finder is not precluded from using the fact finder's life experiences to infer that person's intent.

Appellant cites Hall v. State for the proposition that the seriousness of a physical injury is measured by the harm done to the victim. 11 Ark. App. 53, 666 S.W.2d 408 (1984) (citing Harmon v. State, 260 Ark. 665, 543 S.W.2d 43 (1976)). The victim in Hall sustained bruises of various degrees. The Hall court found that bruises that do not result in a risk of death or cause protracted impairment will not support a first-degree battery conviction.

The Hall court compared the case before it with the results reached in an earlier decision also entitled Harmon v. State, 260 Ark. 670, 543 SW.2d 43 (1976). The victim in Harmon required one month's hospitalization, and suffered a broken leg, fractured toe, bruised heel and pelvis. Although the appellant in Harmon argued that the injuries he inflicted were not serious as contemplated by the legislature, the Harmon court disagreed, and held that whether an injury is such that it continues in time is a question for the trier of fact to determine.

Turning to this case, Harrison testified that as a result of his stab wound he was hospitalized for six days. His testimony was corroborated by Dr. Williamson, who testified that Harrison experienced a penetrating wound to his abdomen that required immediate surgery and hospitalization from February 19th to February 28th. We note that although a nineteen-month period existed between the time appellant stabbed Harrison and the trial,Harrison testified at trial that he continued to experience problems with his side and stomach, and that as a result, he could no longer eat certain foods. Appellant presents no reason why this court should discount the trial court's assessment of Harrison's credibility. This evidence, when viewed in a light most favorable toward a conviction, substantially supports the trial court's finding that appellant committed an act resulting in serious physical injury.

We disagree with appellant's contention that her action of stabbing Harrison in the stomach with a kitchen knife was not life threatening conduct. Appellant admitted that she used a jagged knife that was between four to seven inches long to stab Harrison. Our statutory law defines a deadly weapon as anything capable of causing death or serious physical injury. See Ark. Code Ann. § 5-1-102(4)(B) (Supp. 1999). A knife is a deadly weapon, and the act of purposely sticking several inches of a knife's blade into a person's abdomen constitutes life threatening conduct.

We also disagree with appellant's argument that her actions were justifiable self defense. It is well-settled that a person is justified in using physical force to defend herself when she reasonably believes that she is in imminent danger of another person inflicting unlawful physical force upon her person. See Ark. Code Ann. § 5-2-606 (a) (Repl. 1997). When this situation exists, a person may use such force that she reasonably believes is necessary to prevent an imminent attack. See id. Whether justification exists is a question for the trier of fact to resolve. See Humphrey v. State, 332 Ark. 398, 409, 966 S.W.2d 213 (1998). Justification is not an affirmative defense that must be specifically pled. See id., 966 S.W.2d 213. Rather, once any evidence that tends to support justification is offered, theState bears the burden to negate the defense. See id., 966 S.W.2d 213.

Appellant does not dispute that Harrison was unarmed. Two witnesses testified that after appellant fell into the china cabinet, which was located in the dining room, Harrison went into the kitchen. Both witnesses testified that appellant went into the kitchen area, swung at Harrison with the knife at least three times before she stabbed him, and continued to swing the knife at Harrison after she stabbed him. Although appellant testified that when she swung at Harrison she was angry and felt that Harrison was trying to hurt her, the evidence overwhelmingly supports the trial court's decision that appellant was not in imminent danger of physical harm when she stabbed Harrison.

Affirmed.

Koonce and Stroud, JJ., agree.