Alexander Davison v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION III

ALEXANDER DAVISON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-348

JANUARY 9, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 99-3384]

HONORABLE JAMES LEON JOHNSON, CIRCUIT JUDGE

AFFIRMED

The Pulaski County Circuit Court found the appellant, Alexander Davison, guilty of the second-degree battery of his four-month-old nephew, M.R. The trial court, without entering a judgment of conviction, placed appellant on supervised probation for three years and imposed various additional conditions. On appeal, appellant challenges the sufficiency of the evidence supporting his conviction. He complains that the State failed to present sufficient evidence that he intentionally or knowingly caused injury to his infant nephew, and therefore, the trial court erred by denying his motion for dismissal. We affirm.

Although the trial court did not enter a judgment of conviction, appellant may still appeal the trial court's finding of guilt. Ark. Code Ann. § 5-4-305(a)(1) (Repl. 1997). Below, appellant made a motion for dismissal, which is a challenge to the sufficiency of the evidence. See Dye v. State, 70 Ark. App. 329, 17 S.W.3d 505 (2000). The test for

determining the sufficiency of the evidence is whether substantial evidence, direct or circumstantial, supports the verdict. 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. Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999). The law makes no distinction between circumstantial and direct evidence in a review for sufficiency. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999). However, for circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. Smith v. State, 337 Ark. 239, 988 S.W.2d 492 (1999). Whether the evidence excludes every such hypothesis is ordinarily for the trier of fact to determine. See Yocum v. State, 325 Ark. 180, 925 S.W.2d 385 (1996). In determining the sufficiency of the evidence, we view it in the light most favorable to the State. Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998). The trier of fact is not required to believe the testimony of the defendant. See Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999).

Arkansas Code Annotated § 5-13-202(a)(4)(C) (Repl. 1997) provides that a person commits the offense of battery in the second degree if he intentionally or knowingly without legal justification causes physical injury to one he knows to be twelve years of age or younger. Arkansas Code Annotated § 5-2-202(2) (Repl. 1997) states:

[a] person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.

An individual's intent is rarely capable of proof by direct evidence and must be inferred fromthe circumstances of the crime. Jones v. State, 72 Ark. App. 271, 35 S.W.3d 345 (2000).

Geneva Woodall, an employee of Arkansas Children's Hospital in Little Rock, testified that she spoke with appellant at the hospital on December 17, 1998, after the baby was admitted following a 911 call. Woodall testified that appellant told her that he placed M.R. on a bed, turned to warm the baby's bottle, and "by the time he turned around, [M.R.] had fallen off the bed" headfirst onto the floor. After a visit to the scene, Woodall estimated that the height of the bed was approximately twenty-four inches. Appellant told Woodall that, after the baby fell, the baby moved and twisted his neck and started crying for a few seconds. Then, as appellant rushed to the baby, he stopped crying and started moaning and taking short breaths. Appellant told Woodall that the baby's head started moving side to side at which point, he "jarred him" to try to wake him, and called 911 and reported the injury. Woodall testified that appellant later changed his story to claim that he did not actually see M.R. fall. Woodall opined that M.R.'s injuries were caused by physical abuse.

Dr. Karen Kelly, a pediatrician employed at Arkansas Children's Hospital in Little Rock, testified that she examined M.R. on December 15, 1998. A CT scan revealed a recent subarachnoid hematoma or bruising on the brain. Dr. Kelly testified that this was a serious, often fatal, injury. She further testified that, in babies such injuries are typically seen in three instances: motor vehicle accidents, falls from heights, or as a result of shaken-baby syndrome. Based upon the history appellant gave, Dr. Kelly determined that the injuries resulted from shaken-baby syndrome. She opined that M.R.'s head injury would not have resulted from a fall from appellant's bed; rather, it would have taken a fall from a muchgreater height to cause that type of injury. Dr. Kelly testified that a person would have to shake a baby with a significant degree of force in order to cause bleeding in the brain. She concluded that M.R.'s injuries were inconsistent with appellant's account of how the baby was injured.

Appellant claims that this evidence was insufficient to show that he acted knowingly. Rather, appellant suggests that the evidence demonstrates, at most, that he acted recklessly. We disagree. Here, the State presented proof that the baby's injuries occurred while he was under appellant's care, that the injuries were caused by abuse, and that appellant offered an explanation for the baby's injuries that was improbable and contradicted by the medical evidence. From this, the trial court could have inferred the requisite intent. See Terrell v. State, 342 Ark. 208, 27 S.W.3d 423 (2000). Therefore, we believe that sufficient evidence supports the trial court's finding that appellant acted knowingly. See Stegall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000).

Affirmed.

Bird and Baker, JJ., agree.