Douglas Wilson v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION III

DOUGLAS WILSON

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-942

JUNE 4, 2003

APPEAL FROM PULASKI COUNTY CIRCUIT COURT

[NO. CR00-2583]

HONORABLE MARION HUMPHREY, CIRCUIT JUDGE

AFFIRMED

Appellant Douglas Wilson was convicted by a jury of first-degree sexual abuse, second-degree domestic battery, and third-degree domestic battery, a misdemeanor offense. He was sentenced as an habitual offender to twenty years' imprisonment on the sexual abuse and second-degree battery convictions, to be served consecutively. Wilson was sentenced to one year in the county jail on the misdemeanor conviction and fined $1000, with this sentence to be served concurrently to the felony sentences. Wilson's sole argument on appeal is that the trial court erred by denying his directed-verdict motion on the charge of second-degree domestic battery because the State failed to introduce substantial evidence that the knife he used was a deadly weapon. We affirm.

At trial, the victim, Virginia Edelson, testified that she and Wilson began living together in April 1999. She left him three months later and obtained a protection order. In October 1999, Edelson allowed Wilson to move back in with her and her children. One evening in February 2000, Edelson testified that Wilson became angry with her because she had started smoking cigarettesagain. She stated that they were sitting on their bed when Wilson, who was holding a hunting knife, began yelling at her and hitting her in the face. Edelson testified that "all of a sudden he just went ahead and cut the top of my left foot. And then, without any hesitation, he turned around and just stabbed the inside of my right foot." Edelson stated that the wounds bled and that Wilson wrapped her feet with a gauze bandage. She testified that she did not seek medical attention at that time because she was afraid to call a doctor. Edelson showed the jury the scars on her feet that were still visible at the time of trial. She described the knife used by Wilson as having a black handle with a three to four inch blade that folded into the handle. Edelson also stated that the tip of the knife had a jagged, perforated edge.

On appeal, Wilson argues that the trial court erred in denying his motion for a directed verdict on the charge of second-degree domestic battery. A motion for directed verdict is a challenge to the sufficiency of the evidence. Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002). The test for determining the sufficiency of the evidence is whether substantial evidence, direct or circumstantial, supports the verdict. Id. Substantial evidence is that evidence which is of sufficient force and character to compel a conclusion one way or the other, without resort to speculation or conjecture. Id. For circumstantial evidence to constitute substantial evidence, it must exclude every other reasonable hypothesis than that of the guilt of the accused. Id.

Arkansas Code Annotated section 5-26-304(a)(2) (Supp. 2001) provides that a person commits domestic battering in the second degree if "[w]ith the purpose of causing physical injury to a family or household member, he causes physical injury to a family or household member by means of a deadly weapon." Physical injury is defined as the impairment of physical condition, the infliction of substantial pain, or the infliction of bruising, swelling, or visible marks associated with physical trauma. Ark. Code Ann. § 5-1-102(14) (Supp. 2001). A "deadly weapon" means a"firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious physical injury, or anything "that in the manner of its use or intended use is capable of causing death or serious physical injury." Ark. Code Ann. § 5-1-102(4) (Supp. 2001). "Serious physical injury" is defined as physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or the loss or protracted impairment of the function of any bodily member or organ. Ark. Code Ann. § 5-1-102(19) (Supp. 2001).

Wilson contends that the State failed to introduce substantial evidence that he used a knife as a deadly weapon to cut the feet of Edelson. More specifically, Wilson argues that there was no proof that the knife at issue was made or adapted for the purpose of inflicting death or serious physical injury, as knives have many legitimate, lawful purposes. He also asserts that there was no evidence introduced to show that he used the knife in such a manner as to create a substantial risk of death or serious physical injury because Edelson's injuries did not meet the definition of a serious physical injury. However, section 5-26-304(a)(2) does not require that the victim suffer a serious physical injury if a deadly weapon is used; rather, only a physical injury need be shown. See Gilkey v. State, 41 Ark. App. 100, 848 S.W.2d 439 (1993) (discussing a similar provision in the former second-degree battery statute).

Here, Edelson testified that Wilson cut and stabbed her feet with a knife that had a four-inch blade and a jagged tip, causing bleeding and scarring. Knives have been found to be a deadly weapon in previous cases. See, e.g., Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999) (verdict form, which described aggravated robbery in terms of being armed with a deadly weapon, was proper where defendant represented to victim that he was armed with a knife and would cut her unless she complied with demands); Wilson v. State, 282 Ark. 551, 669 S.W.2d 889 (1984) (holding that admission of verdict form to include statute that requires a minimum prison sentence forconviction of a felony involving use of a deadly weapon was proper, where assailant threatened victim with a knife). Also, even if it was not shown that the knife at issue in this case was specifically made or adapted to cause death or serious physical injury, the jury could have reasonably inferred from the evidence that the knife was capable of causing death or serious physical injury from the manner of its use. Ark. Code Ann. § 5-1-102(4)(B). For instance, in Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996), the supreme court held that scissors, which were used to stab the victim in the arm, were a deadly weapon, as they are capable of causing death or serious physical injury. See also Jones v. State, 292 Ark. 183, 729 S.W.2d 10 (1987) (holding that five-foot iron pipe was a deadly weapon); Duke v. State, 77 Ark. App. 263, 72 S.W.3d 907 (2002) (finding that pit bulls were used in such a manner as to constitute deadly weapons). Thus, the trial court did not err in denying Wilson's directed-verdict motion on the charge of second-degree battery because there is substantial evidence to support the verdict.

Affirmed.

Hart and Bird, JJ., agree.