John D. Conner v. State of Arkansas

John D. CONNER v. STATE of Arkansas

CA CR 01-387 ___ S.W.3d ___

Court of Appeals of Arkansas

Division I

Opinion delivered November 7, 2001

1. Evidence -- test for sufficiency -- standard of review. -- The test for determining sufficiency of the evidence is whether the verdict is supported by substantial evidence, which is evidence of such certainty and precision as to compel a conclusion one way or another; the appellate court reviews the evidence in the light most favorable to the appellee, considering only the testimony that tends to support the verdict.

2. Criminal law -- physical injury defined. -- Arkansas Code Annotated section 5-1-102 (14) (Supp. 1999) defines physical injury as the impairment of physical condition; the infliction of substantial pain; or the infliction of bruising, swelling, or visible marks associated with physical trauma.

3. Criminal law -- physical injury -- amendment to definition made it easier for State to show that appellant committed battery in third degree. -- The 1999 amendment to the definition of physical injury, which added the "[i]nfliction

of bruising, swelling, or visible marks associated with physical trauma" language to the definition of physical injury altered the definition of criminal conduct to such a degree as to make it easier for the State to show that an appellant committed battery in the third degree; even before the 1999 amendment, it was not necessary that a victim seek medical treatment in order for the trier of fact to determine that a physical injury was sustained.

4. Criminal law -- proof sufficient to show that victim was physically injured by appellant -- third-degree domestic-battery conviction affirmed. -- Where the victim testified that appellant dragged her through the kitchen, living room, down the stairs, through the front door, across the front porch, down the steps again, and to the side of the car; where she testified that there were scratches on her upper and lower hip; where the State introduced photographs taken after the incident that evidenced these scratches and abrasions; where the victim testified that she was also bruised, but that the bruising did not show up in the State's photographs; and where she explained that she did not miss work because she was not scheduled to work the next day or two, the victim's testimony, coupled with the State's photographs, provided substantial evidence that appellant dragged the victim through and outsidethe house, that such action resulted in her scratches and bruises, and that the scratches and bruises inflicted upon the victim were encompassed by the amended statutory definition of physical injury; appellant's third-degree domestic-battery conviction was affirmed.

Appeal from Carroll Circuit Court; Alan David Epley, Judge; affirmed.

Robert T. Rogers, II, Public Defender, for appellant.

Mark Pryor, Att'y Gen., by: Michael C. Angel, Ass't Att'y Gen., for appellee.

Sam Bird, Judge. John D. Conner was charged with domestic battery in the third degree, fleeing, and endangering the welfare of a minor, resulting from allegations that he dragged his live-in girlfriend, Robin West, through and outside his house. West sustained scratches and abrasions to her skin, but did not seek medical attention nor miss work. Conner properly and timely moved for a directed verdict on the domestic battery charge on the sole basis that there was no evidence of a physical injury that met the definition of Ark. Code Ann. § 5-1-102 (14) (Supp. 1999). Thetrial court denied this motion for directed verdict and Conner was convicted of all three charges. Conner appeals, contending that the State failed to produce sufficient evidence of a physical injury to support the third-degree domestic-battery conviction. See Ark. Code Ann. § 5-26-305(a)(1) (Repl. 1997). We affirm.

The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, which is evidence of such certainty and precision as to compel a conclusion one way or another. Farrelly v. State, 70 Ark. App. 158, 15 S.W.3d 699 (2000). We review the evidence in the light most favorable to the appellee, considering only the testimony that tends to support the verdict. Id.

Arkansas Code Annotated section 5-1-102 (14) (Supp. 1999) defines "physical injury" as "(A) the impairment of physical condition; (B) infliction of substantial pain; or (C) infliction of bruising, swelling, or visible marks associated with physical trauma." Conner asks us to analogize the case at bar to Kelly v. State, 7 Ark. App. 130, 644 S.W.2d 638 (1983). In Kelly, the victim, though cut by a knife, stated that the wound did not require medical attention because the wound was not severe. The victim's injury was described by another witness as a "fingernail scratch." Id. This court held that the evidence of a physical

injury was insufficient to establish that his physical condition was impaired or that he was inflicted with substantial pain. Id.

As the State argues, however, Kelly was decided in 1983, and the definition of "physical injury" was amended in 1999 to include the additional definition of "infliction of bruising, swelling, or visible marks associated with physical trauma." Ark. Code Ann. § 5-1-102 (14) (Supp. 1999); see also Ark. Code. Ann. § 5-1-102 (14) (Repl. 1997). In Napier v. State, 74 Ark. App. 272, 46 S.W.3d 565 (2001), we recognized that this amendment "altered the definition of criminal conduct to such a degree as to make it easier for the State to show that appellant committed battery in the third degree." We also note that even before the 1999 amendment, this court has stated that it was not necessary that a victim seek medical treatment in order for the trier of fact to determine that a physical injury was sustained. See Pettigrew v. State, 64 Ark. App. 339, 984 S.W.2d 72 (1998).

In the present case, West testified that Conner dragged her "through the kitchen, living room, down the stairs, through the front door, across the front porch, down the steps again, and to the side of the car." She testified that there were scratches on her upper and lower hip. The State introduced photographs taken after the incident that evidence these scratches and abrasions. She testified that she was also bruised, but that the bruising did not show up in the State's photographs. West further explainedthat she did not miss work because she was not scheduled to work the next day or two.

We hold that West's testimony, coupled with the State's photographs, provide substantial evidence that Conner dragged West through and outside the house and that such action resulted in West's scratches and bruises. We further hold that the scratches and bruises inflicted upon West are encompassed by the amended statutory definition of physical injury. Therefore, we affirm.

Jennings and Roaf, JJ., agree.