Sykes v. State

Louise SYKES v. STATE of Arkansas

CA CR 96-718                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
                Opinion delivered March 26, 1997


1.   Evidence -- test for determining sufficient proof -- substantial evidence
     defined. -- The test for determining sufficient proof is whether
     there is substantial evidence to support the verdict; evidence
     is substantial if it is of sufficient force and character to
     compel reasonable minds to reach a conclusion and pass beyond
     suspicion and conjecture. 

2.   Evidence -- insufficient evidence to support appellant's conviction for
     second-degree battery in disciplining grandchild -- conviction reversed. --
     Based on the facts in this particular case, the court of
     appeals held that the evidence was insufficient to support a
     finding that the physical force used by appellant in
     disciplining her grandchild was unreasonable or inappropriate
     under the circumstances; although there might have been more
     desirable methods of correction that could have been utilized,
     the appellate court could not say that the punishment
     inflicted, a spanking with a telephone cord, rose to that of
     a battery in the second degree; therefore, the appellate court
     reversed, holding that the evidence was insufficient to
     support a conviction for second-degree battery.

     Appeal from Pulaski Circuit Court, Second Division; Chris
Piazza, Judge; reversed.
     William R. Simpson, Jr., Public Defender, by:  Scott C. Bles,
Law Student Admitted to Practice Pursuant to Rule XV of the Rules
Governing Admission to the Bar, and C. Joseph Cordi, Deputy Public
Defender.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.

     Judith Rogers, Judge.
     Appellant, Louise Sykes, was convicted after a bench trial of
second-degree battery for spanking her eleven-year-old grandchild
with a phone cord.  She was sentenced to three years' probation,
fined one hundred dollars, and ordered to complete a counseling
program.  On appeal, appellant argues that the evidence was
insufficient to support her conviction.  We agree and reverse.
     On July 27, 1995, Officer Randy Woodall observed Xavier
Calloway, age eleven, and two other young boys playing inside a
fenced-in "construction hardware type company."  The officer placed
the boys in his patrol car and took each of them home.  Officer
Woodall transported Xavier to appellant's home because she was
Xavier's legal guardian and his grandmother.  Officer Woodall
testified that he informed appellant what Xavier had been doing and
explained what could happen to Xavier if this behavior continued
and what could have happened if he had chosen to arrest Xavier for
criminal trespass. 
     Xavier testified that he was inside a fenced-in area with two
other boys.  According to Xavier, one of the boys was a
troublemaker, and appellant did not want him around that boy. 
Xavier said that appellant was not happy about the incident, and
that she told him that she did not want him to get in trouble. 
Xavier testified that after the officer left appellant looked for
a belt, but that she could not find one because his sister had
hidden them.  Xavier admitted that appellant had never used a phone
cord before and that she only used the phone cord to spank him
after she could not find a belt.  Xavier testified that after he
was spanked he ran from the house and called the police.  Officer
Woodall responded to the call, returning to the home only thirty
minutes after he had previously been there.  He observed whelps on
Xavier, and he reported the incident. 
     The photographs admitted into evidence displayed marks on
Xavier's arm, one mark on his leg, and one mark on his bottom.  The
photographs were taken approximately ten minutes after the
spanking.  There was no evidence of bruising or bleeding.  There
were no whelps or marks depicted on Xavier's back or any other part
of his body.  In fact, there were no other signs of physical injury
except the few marks from the cord. 
     Appellant argues on appeal that the evidence is insufficient
to support the finding that she used inappropriate and unreasonable
physical force while disciplining her eleven-year-old grandson.  We
agree.
     Arkansas Code Annotated  5-13-202(a)(4)(C) (Supp. 1995)
provides:
          (a)  A person commits battery in the second
          degree if:

          (4)  He intentionally or knowingly without
          legal justification causes physical injury to
          one he knows to be:

          (C)  An individual sixty (60) years of age or
          older or twelve (12) years of age or younger.

Physical injury means that impairment of physical condition or the 
infliction of substantial pain.  Ark. Code Ann.  5-1-102(14)
(Repl. 1993).  Arkansas Code Annotated  5-2-605(1) (Repl. 1993)
provides:
          The use upon another person of physical force
          that would otherwise constitute an offense is
          justifiable under any of the following circum-
          stances:

          (1)  A parent, teacher, guardian, or other
          person entrusted with care and supervision of
          a minor or an incompetent person may use
          reasonable and appropriate physical force upon
          the minor or incompetent person when and to
          the extent reasonably necessary to maintain
          discipline or to promote the welfare of the
          minor or incompetent person.

     The test for determining sufficient proof is whether there is
substantial evidence to support the verdict.  Black v. State, 50
Ark. App. 42, 901 S.W.2d 849 (1995).  Evidence is substantial if it
is of sufficient force and character to compel reasonable minds to
reach a conclusion and pass beyond suspicion and conjecture.  Id.
Based on the facts in this particular case, we hold that the
evidence is insufficient to support a finding that the physical
force used by appellant in disciplining her grandchild was
unreasonable or inappropriate under the circumstances.  There may
be more desirable methods of correction that could have been
utilized in this situation, but we cannot say that the punishment
inflicted rose to that of a battery in the second degree. 
Therefore, we find that the evidence is insufficient to support a
conviction for second-degree battery.
     Reversed.
     Pittman and Meads, JJ., agree.