Ronald Dworshak v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

LARRY D. VAUGHT, JUDGE

DIVISION I

RONALD DWORSHAK

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-604

February 13, 2002

APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT

CR-2000-221

HON. DAVID LEE REYNOLDS, JUDGE

AFFIRMED

Appellant Ronald Dworshak was convicted of second-degree battery and domestic battering in the third degree. He was sentenced to twelve months' probation. On appeal, he contends that the trial court erred in permitting the State to introduce hearsay testimony against him and in failing to grant his motions for directed verdict. We affirm.

When the sufficiency of the evidence is challenged on appeal, we review this issue before addressing other alleged trial errors. Johnson v. State, 75 Ark. App. 81, 55 S.W.3d 298 (2001). In determining whether a finding of guilt is supported by substantial evidence, we review the evidence, including any that may have been erroneously admitted, in the light most favorable to the verdict. Id. Therefore, in deciding whether there was substantial evidence to support the appellant's convictions, we will consider all of the evidence, including the statement that he asserts was erroneously admitted.

At a bench trial, Paula Loke testified that she, along with her five-year-old son (B.B.) and four year-old daughter, used to live with appellant. She stated that on the morning of March 5, 2000, appellant noticed that his mother's china cabinet had been scratched. The children blamed each other, and appellant became angry and paddled B.B. Appellant asked Loke to discipline B.B., so she paddled him twice. Loke testified that B.B. later urinated in his pants, and appellant paddled him again. That evening, appellant had friends over for a barbeque. Loke testified that appellant had been drinking and, after the company left, he told her to wake the kids up for a paddling. She stated that he paddled her daughter twice and made her sit in the corner. She further testified that he "got hold of [B.B.] and started paddling him and would not stop. He picked him up by his ankles and hit him on his behind, then he grabbed B.B. by the back of his shirt and hollered at him." Loke was then struck by appellant with the paddle on the behind and on the leg. After attempting to call the police three times, Loke took the children to a neighbor's house and called the police.

Officer Andy Shock of the Faulkner County Sheriff's Department responded to Loke's call within twenty or thirty minutes. He stated that Loke was crying and upset when he arrived; he photographed marks on the upper, outside of her left leg. Although B.B. was not upset when Shock arrived, Shock testified that B.B became upset when he questioned B.B. and asked him to pull his pants down. Shock testified that B.B. stated, "He [appellant] just kept on hitting me and wouldn't stop." He photographed B.B.'s behind, which was purple, reddish, and bruised; he added that a red mark might indicate a fresh occurrence and that a purple mark might indicate bruising. On cross-examination, Shock testified that B.B. has a speech impediment and was difficult to understand; however, he did understand B.B. when he said that appellant kept hitting him and would not stop. After the State rested, appellant presented the testimony of several witnesses and also testified in his defense. Catherine Huffman, who was at appellant's house for the barbeque, did not notice that appellant was upset with the children. She testified that Loke arrived with her children approximately five minutes after they got home from the barbeque. Ms. Huffman stated that Lokeput her children in the house and fell in the door, hitting a window fan on one side and a door on the other. Ms. Huffman did not notice either child to be upset; she got toys out for the children and they played. Ms. Huffman recalled that B.B. became upset when Loke took him to a bedroom with the officer. She did not hear B.B. make a statement, but she did hear him crying.

In addition to Huffman, Leslie Lewis, Huffman's daughter, testified that she also attended the barbeque and saw Loke spank B.B. with her hand. She testified that there was a paddle with B.B.'s name on it that Loke threatened to spank him with. Lewis did not notice appellant to be upset with B.B., but did see appellant talk and play with both children. Approximately ten minutes after Lewis got home, she heard a commotion and saw Loke crying on the floor. Lewis stated that B.B. was crying and upset before the police arrived.

Charles Huffman testified that he went to the barbeque and did not notice appellant to be intoxicated. He stated that Loke came to their house ten to fifteen minutes after they got home and fell in the door, hitting the wall and then falling to the floor. He stated that B.B. was not crying and seemed calm.

Appellant's brother-in-law, Lt. Frank Sturdivant of the Lonoke County Sheriff's Department, testified that he had met Loke twice. On one occasion, Loke and her children had been at his house to watch a ball game. That day, Loke threatened to spank B.B. numerous times and stated that she was going to get "Mr. Paddle." Sturdivant stated that Loke went to her car and he could hear her paddling B.B. in the garage. When she came inside, she laid the paddle on the table. Sturdivant thought it was abusive, but did nothing after he learned that DHS was monitoring the situation.

In his defense, appellant testified that he noticed his mother's china cabinet had been scratched on the morning of March 5. When both children blamed each other for the damage, he paddled both of them, but he denied paddling B.B. hard enough to leave marks. He paddled B.B.again that day when he finally told the truth, but not hard enough to leave marks. Appellant testified that Loke spanked B.B. when he admitted to lying; he claimed that she hit him seven or eight times until he urinated in his pants and again paddled him after he urinated. Appellant stated that Loke's paddling left bruises on B.B., which he saw when B.B. took his clothes off to take a bath after he urinated in his pants. He indicated that the photographs of B.B.'s behind resembled what it looked like at the time of the bath. Appellant denied spanking B.B. that night, but stated that Loke took B.B. in the house and spanked him while everyone else was outside. After their company left, appellant told Loke to leave with her children because of her paddling B.B. that day.

We first address appellant's argument that the evidence is insufficient to sustain the second-degree battery conviction. Under Ark. Code Ann. § 5-13-202 (Supp. 2001), a person commits battery in the second degree if he intentionally or knowingly, without legal justification, causes physical injury to one he knows to be twelve years old or younger. "Physical injury" is defined as impairment of physical condition, infliction of substantial pain, or infliction of bruising, swelling, or visible marks associated with physical trauma. Ark. Code Ann. § 5-1-102 (14) (Supp. 2001).

Loke testified that appellant repeatedly beat B.B. with a paddle. She fled to a neighbor's house where she called the police. Officer Shock, who arrived approximately thirty minutes after the call, testified that the child had red and purple marks on his buttocks. He elaborated that a non-abusive spanking could leave red marks and that purple marks might indicate bruising or something that had happened previously. In addition to Shock's testimony, the photographs of the child's buttocks, which were taken shortly after the alleged incident, were introduced into evidence.

Appellant, citing Sykes v. State, 57 Ark. App. 5, 940 S.W.2d 888 (1997), contends that this evidence is insufficient to establish the requirement of physical injury. In Sykes, the trial court convicted the appellant of second-degree battery for spanking her eleven-year-old grandson witha phone cord. She argued on appeal that the evidence was insufficient proof to support the finding that she used inappropriate and unreasonable physical force to discipline her grandson, and this court agreed and reversed the conviction. There, the officer testified that he observed whelps on the child thirty minutes after the alleged incident, and photographs introduced at trial showed marks on the child's arm, and one mark on his leg and bottom. There was no evidence of bruising or bleeding.

Sykes is distinguishable from the present case because, at that time, physical injury was defined as the impairment of physical condition or the infliction of substantial pain. Id. This definition was amended in 1999 to include infliction of bruising, swelling, or visible marks associated with physical trauma. The amendment took effect July 30, 1999, and was therefore in effect at the time this incident occurred on March 5, 2000. We conclude that substantial evidence supports the conviction. On a side note, appellant also points to the testimony suggesting that Loke had spanked the child on the day in question, suggesting that there is no credible evidence that appellant was the person who spanked the child. This argument was not raised in the directed-verdict motion; therefore, we need not address it on appeal. Moreover, it is well-settled that the credibility of witnesses is an issue for the fact finder and not this court. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). The fact finder may resolve questions of conflicting testimony and inconsistent evidence and may chose to believe the State's account of the facts rather than the defendant's. Id.

Appellant also contends that the evidence is insufficient to support the conviction for domestic battery in the third degree. At the close of case, appellant asked the court to consider a directed-verdict motion on the domestic-battering charge, arguing that the "State has put forth no evidence constituting the elements of the crime of Domestic Battering in the 3rd Degree." Rule 33.1(c) of the Arkansas Rules of Criminal Procedure states, in part:

A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense.

In Miller v. State, 328 Ark. 121, 942 S.W.2d 825 (1997), the supreme court held that the appellant failed to preserve his sufficiency argument for appeal, where he moved for a directed verdict at trial on the ground that the "State failed to prove the essential elements of the crime of capital murder." Appellant's directed-verdict motion on the domestic battery charge lacked the specificity required under Ark. R. Crim. P. 33.1, thus his sufficiency argument was not preserved for our review.

We next address appellant's argument that the trial court erred in permitting the State to introduce hearsay testimony against appellant. Appellant contends that the trial court erred in allowing Officer Shock to testify, over his objections, that B.B. told him that appellant "just kept on hitting me and wouldn't stop." The State responds that the trial court properly admitted the statement as an excited utterance, and alternatively, any error in its admission was harmless.

A trial court's ruling on matters pertaining to the admission of evidence is within the discretion of the trial court and will not be set aside absent an abuse of discretion. Lewis v. State, 74 Ark. App. 61, 48 S.W.3d 535 (2001). Rule 803(2) of the Arkansas Rules of Evidence provides that excited utterances are excepted from the hearsay rule. An excited utterance is defined as a "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." In Fudge v. State, 341 Ark. 759, 768, 20 S.W.3d 315, 320 (2000), cert. denied, 531 U.S. 1020 (2000), the supreme court addressed the factors to consider when determining if a statement falls under this exception. They include: the lapse of time, which is relevant, but not dispositive; the age of the declarant; the physical and mental condition of the declarant; the characteristics of the event; and the subject matter of the statement. Id. See also Moore v. State, 317 Ark. 630, 882 S.W.2d 667 (1994). In order to find that Rule 803(2) applies, there must be an event which excites the declarant and the statement must be uttered during the period of excitement and must express the declarant's reaction to the event. Fudge, supra. It is within the trial court's discretion to determine whether a statement was made under the stress of excitement or after the declarant has calmed down and had an opportunity to reflect. Id.

In the present case, Officer Shock testified that he responded to Loke's call within twenty to thirty minutes of receiving it. Although B.B. was not initially upset, Shock testified that B.B. became upset when Shock asked about his injuries and requested to see them. Shock admitted, however, that he did not know whether B.B. was upset about the beating or about being asked to expose his injuries. Shock stated that B.B. appeared upset when he made the statement in controversy.

Based on Shock's testimony, we cannot say that B.B's statement was made under the stress of excitement caused by the beating. Rather, Shock testified that B.B. was not upset when he arrived at the Huffmans and only became upset when he brought B.B. into a bedroom to question him and asked B.B. to pull down his pants to see his behind. Therefore, we hold that the trial court abused its discretion in allowing Shock to testify to B.B.'s statement.

Finding the statement inadmissible, however, does not conclude our analysis. An evidentiary error may be declared harmless if the error is slight, and the remaining evidence of a defendant's guilt is overwhelming. Lewis, supra. This court has repeatedly held that prejudice is not presumed and no prejudice results where the evidence erroneously admitted was merely cumulative. Id. Here, Loke testified that she observed appellant beating B.B. with the paddle, causing injuries, and the State introduced Shock's testimony of the marks on B.B.'s buttocks, as well as the photographs evidencing the injuries. Shock's testimony of what B.B. told him is cumulative to Loke's testimony,and Loke's and Shock's testimony, combined with the photographs, constitutes overwhelming evidence of guilt. Therefore, we hold that the erroneously admitted evidence was harmless and affirm the conviction.

Affirmed.

Hart and Griffen, JJ., agree.