Tiffany Smith v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION ROBERT J. GLADWIN, JUDGE

DIVISION I

TIFFANY SMITH

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-445

June 25, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 2001-1459]

HON. DAVID BOGARD,

JUDGE

AFFIRMED

Appellant was charged with domestic battering in the first degree. Following a bench trial, she was found guilty and sentenced to 176 months' imprisonment in the Arkansas Department of Correction.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw on the ground that the appeal is without merit. The clerk of this court furnished appellant with a copy of her counsel's brief and notified her of her right to file pro se points for reversal within thirty days, which she has done. In response, the State has also filed a brief.

Appellant's counsel's motion was accompanied by an abstract and brief referring to everything in the record that might arguably support an appeal. Two defense motions were

listed to which there were adverse rulings, and we find that all rulings adverse to appellant were addressed by her counsel. There were no errors with respect to either of them. Appellant's pro se brief raised six issues. The State's brief addresses these arguments, and the State agrees that the appeal has no merit.

The two adverse rulings below were the trial court's denial of appellant's motion for a directed verdict at the end of the State's case in chief and again at the close of all the evidence. The basis of the motions was that there was not sufficient evidence of serious physical injury to a family or household member to make a case for domestic battery in the first degree. We find no error.

A motion for a directed verdict is a challenge to the sufficiency of the evidence, the test for which is whether there is substantial evidence to support a verdict, viewing the evidence in the light most favorable to the appellee. King v. State, 62 Ark. App. 112, 969 S.W.2d 199 (1998). Evidence is sufficient to support a conviction if the evidence is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id. Determination of credibility is solely within the province of the finder of fact. McChristian v. State, 70 Ark. App. 514, 20 S.W.3d 461 (2000).

Arkansas Code Annotated section 5-26-303(a)(1) (Repl. 1997) provides that a person commits domestic battering in the first degree if, with the purpose of causing serious physical injury to a family or household member, he causes serious physical injury to a family or household member by means of a deadly weapon. Arkansas Code Annotatedsection 5-26-302(6) (Repl. 1997) defines "family or household member" as "persons who are presently residing or cohabitating or in the past have resided or cohabited together."

In the present case, Eric Lee, the victim, testified that appellant was the mother of his child and that he and appellant had lived together over a year earlier. According to Lee's testimony, the only time he had used physical aggression against appellant, she had hit him first, striking him in the head as he was talking on the telephone; he then pushed her into the wall. Lee testified that on the day of the stabbing, he was at a friend's house when appellant called him at about 7:00 p.m. He said she asked where he was and that she came to the house a short time later. He stated that appellant knocked on the door and asked him to come outside. Lee said that when he stepped out the door, appellant said, "You thought I was kidding," and started stabbing him with a filet knife. Lee testified that this comment by appellant related to an argument that had taken place about two weeks earlier during which appellant had threatened to stab him. Lee said that when appellant started stabbing him, he began to wrestle with her to take the knife away and to defend himself, but he was stabbed five or six times in the process, incurring wounds to his chest, his arm, and his back. He testified that a friend of his took the knife away from appellant and called an ambulance, and that he was taken to the hospital for treatment.

Tanikia Drayer testified that she was at the same house as Eric Lee when the stabbing incident occurred. She said appellant had come to the house asking for Lee, who had then gone outside with her. Drayer said that five or ten seconds later she heard Lee calling for help. She and Tromeno Manuel went outside, and Drayer saw appellant stabbing Lee in theback with a knife. Drayer said that after Manuel took the knife away from her, appellant left the scene.

Tromeno Manuel testified that he was a friend of Lee's and that he had been with Lee at a mutual friend's house on the day of the stabbing. His testimony was consistent with that of Drayer: appellant had come to the house and asked to see Lee; Lee had gone outside with her; and about a minute later he had heard Lee screaming for help. Manuel testified that when he went outside, he saw appellant stabbing Lee in the back. He saw that Lee was holding appellant's hand, trying to stop her from stabbing him again, and that Lee was getting weak. Manuel said he took the knife away from appellant, and then she left on a bicycle. Manuel testified that he had carried Lee into the house, where he and Drayer had applied pressure to Lee's stab wounds and called the police. Manuel stated that Lee's doctor later told him that if they had not applied the pressure to Lee's wounds to stop the bleeding, Lee would have died that night. Manuel also testified that Lee had no weapon at the time of the incident and opined that Lee was not the type of person to fight.

Officer Paul Cantrell of the North Little Rock Police Department testified that he had responded to a call regarding the stabbing of Lee. He stated that when he arrived at the scene, Lee was inside the residence, in a lot of pain, and that he was surrounded by five people, each of whom were applying pressure to a different wound on Lee's body. The officer identified the photographs he had taken of Lee's wounds and identified the weapon he had located on the front porch of the residence.

Officer Brent Carmichael of the North Little Rock Police Department testified that he also responded to the call. He stated that when he located appellant, she had blood stains on her shirt. The officer said he asked appellant if she had any injuries and she said no. After Officer Carmichael read appellant her Miranda rights, appellant stated to the officer that she did in fact stab Lee during an argument. Officer Carmichael also testified that he overheard appellant saying to some other officers present that she had stabbed Lee and that he had deserved it.

Appellant testified that when she went to the house to talk to Lee, she took the knife with her because Lee had a lot of friends who did not like her and she thought they would "jump on" her. She said that they had begun to argue as soon as Lee came outside and that he had his hand around her neck and was holding her up against a fence; she said that is when she began stabbing him. Appellant testified that Lee had hit her before. She said that she had been abused all her life and that she thought Lee was going to hurt her.

The above testimony constitutes substantial evidence that appellant, with the purpose of causing serious physical injury to a person she had resided with in the past, caused serious physical injury to this person by means of a deadly weapon. Thus, the evidence was sufficient to support appellant's conviction for domestic battering in the first degree.

Appellant's pro se points raise six arguments for reversal. In her first two points, appellant contends that she did not intentionally cause serious physical injury to a family or household member. She admits that she "unintentionally" caused serious physical injury to Lee. These arguments are essentially a challenge to the sufficiency of the evidence. Asdiscussed above, the testimony regarding appellant's use of a filet knife to stab Lee, the nature and extent of Lee's wounds, and appellant's statement that she stabbed Lee and that he deserved it constitute substantial evidence that appellant, with the purpose of causing serious physical injury to a family or household member, caused physical injury to such person by means of a deadly weapon. As part of this argument, appellant contends Lee is not a family or household member, pointing out that the paternity of her child was never proven at trial. The paternity of the child was not at issue in this case. The State offered proof that appellant and Lee had at one time lived together, which is all that was required under Ark. Code Ann. § 5-26-302(6).

In her third and fifth points for reversal, appellant challenges the constitutionality of Ark. Code Ann. § 5-26-302(6). She argues that the definition of "family or household member" is unconstitutionally vague because it contains no limitation on how long in the past she and Lee must have lived together in order to fall within the purview of the statutory definition of "family or household member." She again points out that the paternity of the child was never proven. She also contends that the bench trial was unconstitutional in that it permitted her to be convicted of a charge that was unconstitutionally vague. These arguments were not preserved for appeal. Even constitutional arguments are barred on appeal if they are not raised before the trial court. Holland v. State, 71 Ark. App. 84, 27 S.W.3d 753 (2000).

For her fourth point for reversal, appellant claims that she has a constitutional right to be informed of the nature and cause of the accusation filed against her, and that if such"depended on Lee being a `family or household member' then such has never been proven beyond a reasonable doubt." This issue has been thoroughly addressed. The State's proof that appellant and Lee lived together qualified Lee as a "family or household member" as defined by Ark. Code Ann. § 5-26-302(6).

For her final point for reversal, appellant claims that her trial counsel was ineffective in not calling her psychiatrist to testify regarding the fact that she was taking psychotropic medication. In order for an appellant to argue ineffective assistance of counsel on direct appeal, she must first have presented the claim to the lower court either during the trial or in a motion for a new trial. Nichols v. State, 69 Ark. App. 212, 11 S.W.3d 19 (2000). Because appellant never raised a claim of ineffective assistance of counsel below, we cannot consider this argument.

From our review of the record and the briefs presented to us, we find that there was compliance with Rule 4-3(j) and that the appeal is without merit. Accordingly, we grant counsel's motion to withdraw and affirm the judgment of conviction.

Affirmed.

Bird and Griffen, JJ., agree.