Randall Keith Reed v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION I

RANDALL KEITH REED

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-371

OCTOBER 11, 2000

APPEAL FROM THE BRADLEY COUNTY CIRCUIT COURT

[NO. CR 98-113-2]

HONORABLE SAMUEL B. POPE,

CIRCUIT JUDGE

AFFIRMED

A jury sitting in the Bradley County Circuit Court found the appellant, Randall Reed, guilty of two counts of second-degree battery pursuant to Ark. Code Ann. § 5-13-202(a)(1) (Repl. 1997). The trial court sentenced appellant to 144 months of unsupervised probation. On appeal, appellant presents the following challenges: (1) that the circuit court abused its discretion by not declaring a mistrial based upon a Doyle violation, and (2) that there is insufficient evidence supporting appellant's convictions for second-degree battery. We affirm.

For appellant's first point on appeal, he claims that the trial court abused its discretion by not declaring a mistrial. During the State's rebuttal closing argument at the close of the trial's guilt phase, the prosecution began to argue that appellant had been able to tailor his testimony because he had heard the testimony of the State's witnesses before he testified.The

prosecutor stated:

[The defense] make[s] details where he's coached to make details, and he was very clear about those details that he was coached to make. It is very convenient if he can sit here and listen to the other nine people testify and then tailor- oh, and they have to make statements, and they did.

Appellant made an objection to that argument, which the trial court overruled. However, contrary to appellant's statements in his brief, appellant did not request an admonition or a mistrial.

Appellant relies on the Supreme Court's holding in Doyle v. Ohio, 426 U.S. 610 (1976), and asserts that the State deliberately brought his post-arrest silence to the jury's attention. Although Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. Numan v. State, 291 Ark. 22, 722 S.W.2d 276 (1987). In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial. Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998). Where, however, a comment on the defendant's post-arrest silence is not an attempt to impeach the defendant, it is not the type of comment prohibited by the Court in Doyle. Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996). Here, we do not believe that the State was attempting to comment on appellant's post-arrest silence in its rebuttal closing arguments. Rather, we find that the State was merely commenting upon the fact that appellant's presence in the courtroom provides him a unique opportunity to tailor his testimony. See Portuondo v. Agard, 120 S. Ct. 1119 (2000). This is not the type ofcomment prohibited by Doyle. As such we hold that the trial court did not err in overruling appellant's objection.

For appellant's second point on appeal, he asserts that there is insufficient evidence to support his convictions for second-degree battery. The testimony elicited at trial revealed that appellant lived on his farm with Cindy Scarbrough until she left him on October 26, 1998. Scarbrough then began sharing a residence with a fifteen-year-old girl, the girl's mother, and another woman. Scarbrough also began a relationship with David Lyon.

On November 29, 1998, appellant went to Scarbrough's new residence and knocked on the door. The fifteen-year-old girl answered the door. She testified that appellant asked if Scarbrough and Lyon were there. The girl allowed appellant to enter the residence and led him to Scarbrough's room, where she and Lyon were taking a nap. Scarbrough testified that she and Lyon were lying down when he said that somebody was at the door. She asked who it was, and the girl responded. Scarbrough then said, "[J]ust a minute." According to Scarbrough, "The next thing [she knew] the door was swinging open and [the girl] was shoved up against the wall." Appellant then ran into the room, straddled Lyon, and started beating him. Scarbrough screamed, and appellant grabbed her and began hitting her in the face. She lost consciousness during the attack. At trial the fifteen-year-old girl gave similar testimony.

After the beating, Lyon went to a hospital in Bradley County where a doctor told him that he was going to lose his eye. Lyon then went to UAMS in Little Rock where a doctor gave him stitches and told him that he would have a scar. Lyon suffered a "1.3 centimeterlaceration to the . . . labial aspect of the lid." He also sustained a bone fracture near his eye. Lyon, who worked as a welder, could not return to his job for approximately three months. When he returned, he tried to resume welding, but it was too painful so his employer allowed him to drive a forklift.

Appellant's attack left Scarbrough unconscious, her lip "split wide open," and her nose gushing blood. Her injuries included a fractured maxillary spine, which is the bone just below the nose, and a fractured nasal septum. Six weeks after the attack, she had surgery to repair her nasal septum and remove damaged cartilage.

A person commits battery in the second degree if with the purpose of causing physical injury to another person, he causes serious physical injury to any person. Ark. Code Ann. § 5-13-202(a)(1). The test for determining sufficient proof is whether there is substantial evidence, direct or circumstantial, to support the verdict. Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999). On appeal, we review the evidence in the light most favorable to the State and sustain the conviction if there is any substantial evidence to support it. Tigue v. State, 319 Ark. 147, 889 S.W.2d 760 (1994). Evidence is substantial if it is forceful enough to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. In determining whether there is substantial evidence, we consider only that evidence tending to support the verdict. Johnson, supra. We do not weigh the evidence presented at trial, as that is a matter for the factfinder. Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998).

Appellant maintains that there is insufficient evidence that he intended to causephysical injury. In support of his argument, appellant relies on the testimony of his friend who stated that appellant did not go to Scarbrough's house with the intent to attack her and Lyon. However, we will only consider evidence favorable to the verdict when reviewing the sufficiency of the evidence. Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990). Furthermore, intent can be formed in an instant. Id. Here, appellant, a jilted lover, could have decided to attack Lyon and Scarbrough when he found them in the bed together.

Next, appellant contends that there is insufficient evidence that Lyon and Scarbrough sustained serious injuries. Appellant fractured a bone near Lyon's eye. As a result, Lyon did not return to work for approximately three months, and even then was unable to resume his position as a welder because it was too painful. Appellant also fractured bones in Scarbrough's face. As a result, she had surgery six weeks after the attack. Arkansas Code Annotated § 5-1-102(19) (Repl. 1997) defines serious physical injury to include "protracted disfigurement, protracted impairment of health," and "protracted impairment of the function of any bodily member or organ." In this case, appellant caused both victims to suffer fractured bones. We cannot say that the trial judge erred in finding that Lyon's and Scarbrough's injuries constituted serious physical injuries. See Lum v. State, 281 Ark. 495, 665 S.W.2d 265 (1984); Harmon v. State, 260 Ark. 665, 543 S.W.2d 43 (1976). Affirmed.

Jennings and Roaf, JJ., agree.