Howard Ray Benton v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

ANDREE LAYTON ROAF, Judge

DIVISION I

HOWARD RAY BENTON

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR00-392

NOVEMBER 8, 2000

APPEAL FROM THE ARKANSAS COUNTY CIRCUIT COURT,

CR-98-135

HON. F. RUSSELL ROGERS, JUDGE

AFFIRMED

Howard Ray Benton was convicted in an Arkansas County jury trial of first- and second-degree battery, for which he received consecutive sentences of twenty years and a $15,000 fine and six years and a $10,000 fine, respectively. On appeal, Benton argues that there was insufficient evidence to support the verdict and that the trial court erred in admitting into evidence that his brother had raped one of the victims prior to the altercation that gave rise to the charges. We affirm.

Benton was charged by information with two counts of first-degree battery and onecount of aggravated assault. The charges arose from an altercation on August 12, 1998, in which Benton allegedly hit Alicia Douglas and Mary Carper with a two-by-four and slashed Douglas and Clinton Harrison with a box cutter. Before the start of Benton's August 24, 1999, trial, his trial counsel advised the trial court that he had told defense witness Leon Earls to come to the court house at 10:30 and asked, in the interest of not making Earls miss any more work than was necessary, that he be allowed to call Earls if it appeared that there would be a delay in the proceedings.

The State first called Alicia Douglas. Over Benton's relevancy objection, she testified that she had known Benton since 1987 and never had any problems with him until Benton's brother, Charles Benton, was sent to the penitentiary for raping her. She further testified that on the day in question, at approximately 11:20 p.m., she was walking to a convenience store with Mary Carper, who was seven months pregnant at the time, when they were approached by Benton. According to Douglas, Benton started calling them names, which she answered with profanity. Benton picked up a two-by-four and hit Carper in the stomach, knocking her down. Benton then turned the weapon on Douglas and hit her twice, once in the mouth and once in the back of her head. Clinton Harrison came to her rescue, and he exchanged blows with Benton as he tried to disarm him. Subsequently a number of other young men came up the street and jumped on Benton. Prior to their intervention, however, Benton had slashed Douglas and Harrison with a box cutter. Douglas sponsored into evidence a picture of her, taken at the hospital after the altercation, showing a slash wound on her abdomen. According to Douglas, the wound healed, but left a scar.

Harrison testified that he was a high school student, and he knew Benton prior to thealtercation. On the day in question, he was accompanying his mother back home from a friend's house when he observed Benton hit Carper and Douglas with a board. He intervened to help Douglas escape. According to Harrison, he was unarmed. His "little battle" with Benton lasted only a short time before eight or nine youths helped subdue Benton and chase him away. Harrison stated that he did not know he had been cut until others at the scene informed him of the fact. He, however, testified that he had "a bunch of stitches" and scars from the wounds. Harrison then sponsored into evidence several pictures of him, taken later at the hospital, showing several deep gashes on his torso and left arm.

Sergeant Mark Duke of the Stuttgart Police Department Criminal Investigation Division testified that when he was called to investigate the incident, he discovered a 4 ½ to 5 foot long two-by-four in the middle of the street where the altercation took place. He also stated that he took a statement from both Douglas and Harrison at the hospital, within an hour after the incident. According to Duke, only Douglas's statement mentioned Benton's use of a two-by-four as a weapon.

After Sgt. Duke's testimony, the State rested. Benton's trial counsel obtained leave of the court to present Leon Earls's testimony before it heard his directed-verdict motions and dismissing the jury for lunch. Earl testified that at about midnight on August 12, 1998, Benton came to his carport door asking to come in. Earl claimed that he saw what appeared to be a utility knife in Benton's hand, so he did not let him inside. He, however, did call the police after Benton asked him to do so.

After Earl's testimony, the jury was released for lunch, and Benton's trial counsel moved dismiss the aggravated assault count because there was insufficient evidence to provethat assaulting Mary Carper with the two-by-four created a substantial danger of death or serious injury to her. The trial court denied the motion. Benton's trial counsel then moved for a directed verdict on the first-degree battery charges, arguing that there was insufficient evidence of intent to cause serious physical injury and insufficient proof of serious physical injury. This motion was also denied.

In his case-in-chief, Benton testified that the altercation began when he refused to buy narcotics from Harrison. Benton denied using a two-by-four as a weapon, and he admitted to taking his box cutter out of his pocket only after he left Earl's house and was defending himself against "fourteen or fifteen guys." He claimed that he cut Harrison when he was being beaten by the young men, but asserted that he "didn't have no choice." On cross-examination, the State introduced evidence of Benton's theft convictions for impeachment.

After Benton rested, his trial counsel renewed his motions, which were again denied. The jury then found Benton guilty of first-degree battery on the count involving Alicia Douglas and second-degree battery on the count involving Clinton Harrison. Benton was acquitted on the assault charge.

Because of double-jeopardy considerations, we first address Benton's sufficiency of the evidence arguments. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). In this regard, the State argues that this issue is not preserved for appellate review because Benton failed to make a directed verdict motion at the close of the State's case as required by Rule 33.1(a) of the Arkansas Rules of Criminal Procedure. The State contends that the instant case is analogous to Claiborne v. State, 319 Ark. 602, 893 S.W.2d 324 (1995), in which the supreme court refused to reach the merits of case where an appellant made an untimelydirected-verdict motion after the jury had been charged, that the trial judge agreed to consider as timely made. We reject the State's procedural bar.

As noted above, Benton secured the permission of the trial court to present one of his defense witnesses before taking up his directed-verdict motion, and Benton completed his case-in-chief after making the motion. This was simply an instance where the trial judge allowed testimony to be taken out of order. It is well settled that a trial judge has broad discretion to control when testimony will be admitted. See, e.g., City of Fayetteville v. Stone, 194 Ark. 218, 106 S.W.2d 158 (1937). Accordingly, we do not agree with the State that the issue is procedurally barred and address the merits.

Benton asserts as separate points that the trial court erred in denying his motion for a directed verdict as to the battery charge involving Alisha Douglas at the close of the State's case and at the close of all the evidence. Benton argues that there was insufficient evidence of intent to cause serious physical injury and the fact that he indeed did cause serious physical injury. Citing Tigue v. State, 319 Ark. 147, 889 S.W.2d 760 (1994), Benton asserts that first-degree battery "comprehends only life-endangering conduct," and he contends that Douglas only received a cut on her stomach that, while requiring stitches, did not result in a hospital admission or impairment of any bodily function. He also notes that in her testimony, Douglas admits to not even realizing that she had been cut. Regarding the intent element, he argues that his testimony regarding his use of the box cutter established that he was only using it to try to get people off him so he could get away. He further argues that in his testimony, he specifically stated that it was not his purpose or intention to cause serious injury to any of those persons. Furthermore, in his testimony, he also denied having ever picked up any typeof club, stick, or board to hit anyone.

On appeal, we treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. Id. In determining whether there is substantial evidence, we consider only that evidence tending to support the verdict. Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999). 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).

In pertinent part, the offense of first-degree battery is codified as follows:

(a) A person commits battery in the first degree if:

(1) With the purpose of causing serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon; or

(2) With the purpose of seriously and permanently disfiguring another person or of destroying, amputating, or permanently disabling a member or organ of his body, he causes such an injury to any person; or

(3) He causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life [.]

Ark. Code Ann. § 5-13-201 (Repl. 1997). "Serious physical injury" is defined by statute as: "Physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of anybodily member or organ." Ark. Code Ann. § 5-1-102(19) (Repl. 1997)

Looking first at Benton's argument that the State failed to prove that Douglas suffered serious physical injury, we note that Benton has not abstracted the photograph of Douglas's wound or the photograph of the two-by-four. Accordingly, this court does not have a full and fair condensation of the relevant evidence, and we can affirm on this basis. However, we also find that there is substantial evidence of serious physical injury.

The injuries suffered by Douglas are similar to the injuries suffered by the victim in Bangs v. State, supra. In Bangs, the victim sustained two scalp wounds, approximately two-inches in length, from being hit in the head with a gun and bruises from being punched in the face and having her head hit the back glass of the truck's cab. The victim was admitted to the hospital for treatment, and the scalp lacerations were closed with staples. The instant case is only distinguishable from Bangs in that Douglas was not admitted to a hospital for treatment and the State did not present testimony from a treating physician that Douglas had suffered "serious physical injuries." Furthermore, the instant case is also analogous to Cook v. State, 2 Ark. App. 278, 621 S.W.2d 224 (1981), in which this court held that a ten-inch long knife wound from the victim's navel to his hipbone from a knife constituted serious physical injury. Again, the instant case is only distinguishable in that the wound that Douglas suffered was not as deep as the wound that the victim in Cook suffered, and in the instant case, the State did not present expert medical testimony that the wound was "relatively extensive." However, medical testimony is not required to prove the serious physical injury element. Johnson v. State, 26 Ark. App. 286, 764 S.W.2d 621 (1989). The injuries in the instant case are, perhaps, less severe than in either Bangs or Cook, however, they are not soinsignificant as to not qualify as serious physical injury.

Regarding Benton's intent argument, a person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or cause such a result. Tarentino v. State, 302 Ark. 55, 7 86 S.W.2d 584 (1991). Because of the obvious difficulty in ascertaining the actor's intent or state of mind, a presumption exists that a person intends the natural and probable consequences of his acts. Id. The factfinder may draw upon common knowledge and experience to infer the defendant's intent from the circumstances. Id. Here, Douglas testified that Benton picked up a two-by-four and hit her twice in the head, causing her to lose consciousness. Police subsequently found a two-by-four in the location stated by Douglas. Douglas also testified that she was scarred from being slashed in the stomach by Benton, and pictures depicting the wound were admitted into evidence. Viewed in the light most favorable to the State, we cannot say that there was not substantial evidence of Benton's intent to cause serious physical injury. See id. (finding intent to inflict serious physical injury from the fact that the appellant hit the victim in the head with a baseball bat).

Under our standard of review, Benton's self-serving testimony in which he denies that he intended to cause serious physical injury with his box cutter and claims he did not hit Douglas with the two-by-four are not even considered when we determine if substantial evidence supports this conviction. The trier of fact is free to believe all or part of a witness's testimony. Freeman, 331 Ark. at 134, 959 S.W.2d at 402. Moreover, the credibility of witnesses is an issue for the jury and not for this court. Marta v. State, 336 Ark. 67, 983 S.W.2d 924 (1999).

Benton next argues that the trial court erred in allowing the State to introduce evidence of a violent act committed upon the victim by his brother. Benton contends that evidence that his brother was incarcerated for raping Douglas was improperly admitted because its probative value was substantially outweighed by its prejudicial effect, particularly because the State had other evidence "explaining" Douglas's initial contact with him. This argument is without merit.

A trial court is accorded wide discretion in evidentiary rulings and will not be reversed on such rulings absent a manifest abuse of discretion. Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999). A trial court's ruling on relevancy is entitled to great weight and will not be reversed absent an abuse of discretion. Id.

The State asserts, and we agree, that Benton only made a relevancy objection below, and therefore the prejudice versus probative value component of this argument, which is based on Rule 403 of the Arkansas Rules of Evidence, is not preserved. See Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999) (holding that a balancing argument is not preserved if not explicitly argued to the trial court and specifically ruled upon).

Regarding whether the trial court abused its discretion in admitting Douglas's testimony that she did not have any problem with Benton until her rape complaint sent Benton's brother to prison, we find that it was admissible to prove Benton's motive in attacking her. Generally, evidence of motive behind a criminal offense is admissible. Scott v. State, 325 Ark. 267, 924 S.W.2d 248 (1996). The State is entitled to produce evidence "showing all circumstances which explain the act, show a motive for acting, or illustrate the accused's state of mind." Id.

Affirmed.

Jennings and Crabtree, JJ., agree.