Larry Charles Washington v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
 

DIVISION I

LARRY CHARLES WASHINGTON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-350

January 7, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 2002-2945]

HON. JOHN LANGSTON,

JUDGE

REVERSED & DISMISSED IN PART; AFFIRMED IN PART

Robert J. Gladwin, Judge

A Pulaski County jury found Larry Charles Washington guilty of aggravated robbery, theft of property, residential burglary, first-degree terroristic threatening, felon in possession of a firearm, and two counts of first-degree battery. He was sentenced to an aggregate term of forty years' imprisonment. Appellant raises two points on appeal. He argues that the trial court erred in denying his directed-verdict motion on the two counts of battery in the first degree because he did not commit the acts "by means of a firearm." He also argues that the trial court erred in requiring evidence of a pattern of discrimination in order to find a Batson violation during jury selection. The State concedes that striking a person with a gun does not constitute causing an injury to another person within the meaning of the statute. We reverse and dismiss on appellant's first point and affirm on his second point.

Appellant and Victor Hancock, one of the victims, were friends. While appellant was in prison, his girlfriend, Stephanie Conley, began seeing Hancock but eventually returned to a relationship with appellant after he was released from prison. Hancock, however, retained some nude pictures of Conley. On May 11, 2002, Conley was jailed, and appellant called Hancock asking for bail money.

Hancock refused appellant's request for money. Hancock, who had been at a concert that night, then went to his house with Cassandra Hill. While they were in Hancock's bedroom, appellant broke through the front door and pointed a gun at Hancock and Hill. Appellant demanded money, jewelry, and the pictures from Hancock. Appellant hit both Hancock and Hill with the gun and left the house. Over the next few days, appellant left several threatening messages on Hancock's voice mail.

Along with other charges, the State charged appellant with two counts of first-degree battery pursuant to Ark. Code Ann. §5-13-201(a)(7) (Repl. 1997), which provides that a person commits battery in the first degree if, with the purpose of causing physical injury to another person, he causes physical injury to any person by means of a firearm.

In appellant's motion for a directed verdict, he argued that "by means of a firearm" requires that the gun be fired and not simply used as a club. Appellant's motion was denied at the close of the State's case and again at the close of all the evidence.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State, and only evidence supporting the verdict will be considered. Id.

The issue of whether striking a person with a pistol is contemplated by Ark. Code Ann. § 5-13-201(a)(7) was recently decided by our supreme court in Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). The court held that the clear intent of Ark. Code Ann. § 5-13-201(a)(7) is to criminalize and treat as battery in the first degree any physical injury caused by use of a firearm as a firearm because of the inherent potentially deadly character of the discharge of a firearm. Id. It is not intended to include an injury caused by the firearm's use as a club. Id. Therefore, we modify appellant's convictions for battery in the first degree.

Appellant's second argument concerns the State's peremptory challenge of Lynn Stewart, a black woman. After Ms. Stewart answered several questions, the State used a peremptory challenge to excuse her. Appellant objected, arguing that the State excused her because of her race, raising a Batson challenge. The State responded that appellant had not made a prima facie case in that there was no pattern of discrimination because they had excused a white male as well. The trial court noted that the State's strike pattern amounted to "50 - 50" whereas approximately one-third of the population in the community was black. The court also noted that because Ms. Stewart was the only black person on the panel, the State's strike pattern was 100%. At that point, the court asked the State to give its reason for excusing Ms. Stewart. The State responded that she was somewhat evasive with the questions; that she was not able to say definitely whether she had any moral reservations about sitting on a jury; that all her perceptions of the court system were from watching Court T.V.; and that she had a close family member or friend involved in the criminal justice system and, therefore, was equivocal as to whether she could be a fair juror. The State also felt that Ms. Stewart exhibited some resentment about being called for jury duty. The trial court found that the State had given a racially-neutral reason on its face such that appellant's Batson objection failed. The trial court then asked defense counsel if he wished to present anything in regard to the racially-neutral reason given by the State. Defense counsel replied, "Nothing further, Your Honor." The court noted that it would consider the objection a continuing objection throughout the rest of voir dire. Following jury selection, the trial court noted that two black venire persons had been called since Ms. Stewart was excused and that, although the State had four peremptory challenges left, it did not exercise those. The court noted that the jury makeup was 10-2, with two jurors being black. The trial court found that there was not a pattern of discrimination and, again, denied appellant's Batson objection. At the close of voir dire, the prosecutor stated, "Your Honor, this panel's good for the State." Defense counsel then stated, "Good for the Defense, Your Honor."

In MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998), the Arkansas Supreme Court set out a three-step procedure that must be followed when a Batson objection is lodged:

First, the strike's opponent must present facts, at this initial step, to raise an inference of purposeful discrimination by showing (1) that the strike's opponent is a member of an identifiable racial group, (2) that the strike is part of a jury-selection process or pattern designed to discriminate, and (3) that the strike was used to exclude jurors because of their race. Id. The trial court should consider all relevant circumstances and, if the strike's opponent makes a prima facie showing, then the inquiry proceeds to step two. Id.

Second, assuming the strike's opponent has made a prima facie case, the burden of producing a racially-neutral explanation shifts to the proponent of the strike; however, the burden of persuading the trial court that a Batson violation of purposeful discrimination has occurred never leaves the strike's opponent. This explanation, according to Batson, must be more than a mere denial of discrimination or an assertion that a shared race would render the challenged juror partial to the one opposing the challenge. The explanation need not be persuasive or even plausible. Indeed, it may be silly or superstitious. The reason will be deemed race neutral unless a discriminatory intent is inherent in the prosecutor's explanation. Id.

Third, if a race-neutral explanation is given, the trial court must then decide whether the strike's opponent has proven purposeful discrimination. Id. The strike's opponent must persuade the trial court that the expressed motive of the striking party is not genuine but, rather, the product of discriminatory intent. Id.

Appellant's argument must fail because he abandoned his Batson objection by not challenging the State's explanation or the court's finding that the State's explanation was racially neutral. The burden of persuading the trial court that a Batson violation of purposeful discrimination has occurred never leaves the strike's opponent. Appellant never responded with facts or argument to the State's explanation and, therefore, failed to meet his burden under the third step. Moreover, appellant himself stated that the jury panel was "good for the Defense."

Reversed and dismissed in part; affirmed in part.

Griffen and Roaf, JJ., agree.