Raymond Williams v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

RAYMOND WILLIAMS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CA CR 05-441

November 30, 2005

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY

[NO. CR 04-2224]

HONORABLE WILLARD PROCTOR, JR., JUDGE

AFFIRMED

Terry Crabtree, Judge

Appellant Raymond Williams was found guilty by a jury of second-degree battery, a violation of Ark. Code Ann. § 5-13-202(a)(4)(C) (Supp. 2005), and he was sentenced to a term of six years in prison. Appellant argues on appeal that the instruction the trial court gave to the jury was flawed. We affirm.

Only a brief recitation of the facts is necessary because appellant does not challenge the sufficiency of the evidence supporting his conviction. Appellant is the father of eight-year-old T. J., who lives with her mother. In March 2004, T.J.'s mother went out of town and left T.J. in the care of appellant. During the visit, T.J asked to spend the night with relatives. Appellant gave his permission but cautioned T.J. that she must spend the entire night with them. T.J. called appellant at 2:00 a.m. and asked him to come get her. Appellant complied, but he spanked her when they got home before putting her to bed. Appellant later entered the child's bedroom and spanked her once

again. This time, appellant held the child by her feet, upside down, while he whipped her with a belt, striking blows to her bottom, right leg and arm, and her head. T.J. testified that she was bleeding when she got back into bed, and photographs of her bruises were introduced into evidence.

As relevant here, a person commits battery in the second degree if he intentionally orknowingly, without legal justification, causes physical injury to one he knows to be twelve years old, or younger. Ark. Code Ann. § 5-13-202(a)(4)(C) (Supp. 2005). The trial court instructed the jury, in part, as follows:

[Appellant] is charged with the offense of battery in the second degree. To sustain this charge, the State must prove beyond a reasonable doubt that [Appellant] intentionally or knowingly, and without legal justification, caused injury to a person he knew to be 12 years of age or younger.

The court went on to define the terms "physical injury" and "knowingly" in the instruction.

Appellant argues on appeal that the instruction given to the jury was flawed in two respects. First, appellant contends that it was error for the trial court to give an instruction containing two mental states, i.e. "intentionally" and "knowingly." In this regard, appellant also contends that "intentionally" is not a valid mental state in Arkansas, as Ark. Code Ann. §5-2-202 (Repl. 1997) includes only "purposely," "knowingly," "recklessly," and "negligently" as culpable mental states. Appellant further contends that the instruction was flawed because no definition of "intentional" was included. In response, the State contends that the arguments appellant now raises are not preserved for appeal. We agree.

The record contains the following colloquy:

THE COURT: Actually, that's out of order. What's the offense first? 13021 should be next. That's my number 10. Any objection to 1302?

DEPUTY PROSECUTING ATTORNEY: No, Your Honor. We do need to add one thing. The recklessly, knowingly, and intentionally is not defined in Zane's, if she could add that on for us. That's part of the AMCI. Or we can do it, whichever is faster, but the AMCI actually has the definition of intentionally or knowingly, and that is left off this instruction.

THE COURT: Okay. So, it should be Raymond Williams intentionally or knowingly and without legal justification caused a physical injury, and then you want a definition of knowingly on there as well?

DEPUTY PROSECUTING ATTORNEY: Yes, Your Honor.

DEFENSE COUNSEL: Yes.

THE COURT: Okay. Is that - are those instructions on the net?

DEPUTY PROSECUTING ATTORNEY: Oh, wait a minute, Your Honor. On, that's recklessly.

THE COURT: I found them. Okay. Which one is it? 1302?

DEPUTY PROSECUTING ATTORNEY: It is 1302.

THE COURT: So, the definition of physical injury - This will be off the record, Cheryl.

As is shown by the record, appellant raised no objection to the court instructing the jury that the offense was committed by either "intentionally or knowingly" causing injury, and appellant did not object to the court defining only the term "knowingly." We have repeatedly stated that we will not address arguments raised for the first time on appeal. Elser v. State, 353 Ark. 143, 144 S.W.3d 168 (2003). As does the State, we also observe that appellant proffered no instruction of his own. The failure to proffer a proposed instruction also precludes this court from considering the issue on appeal. Hatley v. State, 68 Ark. App. 209, 5 S.W.3d 86 (1999).

On the other hand, appellant complains that the remainder of the discussion concerning jury instructions was held off the record. He does not allege that he made an objection raising the issues argued on appeal. Appellant states only that "it is impossible to tell whether Appellant's trial-level public defender objected to the `knowingly or intentionally' instruction."

Rule 4 of the Administrative Orders of the Supreme Court does provide that "[u]nless waived on the record by the parties, it shall be the duty of any circuit court to require that a verbatim record be made of all proceedings pertaining to any contested matter before it." In light of this rule, our courts hold that a trial court commits error by conducting proceedings on contested matters off the record, unless the parties waive the verbatim-record requirement on the record. George v. State, 356 Ark. 345, 151 S.W.3d 770 (2004); Robinson v. State, 353 Ark. 372, 108 S.W.3d 622 (2003); Smith v. State, 324 Ark. 74, 918 S.W.2d 714 (1996); Mattocks v. Mattocks, 66 Ark. App. 77, 986 S.W.2d 890 (1999). However, for there to be reversible error, the appellant must demonstrate that prejudice results from the state of the record. Lewis v. State, 354 Ark. 359, 123 S.W.3d 891 (2003). Here, appellant does not affirmatively allege that any objection to the jury instruction was made during the discussions held off the record. In the absence of any assertion or statement of good-faith belief thatan objection was indeed made, we cannot say that appellant has demonstrated any prejudice flowing from the trial court's failure to conduct the proceedings on the record. Consequently, we find no reversible error.

Affirmed.

Baker and Roaf, JJ., agree.

1 AMCI 2d 1302 is the model instruction for battery in the second degree.