Robert D. Phillips v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I I

ROBERT D. PHILLIPS,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR03-387

JANUARY 7, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

FOURTH DIVISION,

(NO. CR2002-2275),

HON. JOHN W. LANGSTON, JUDGE

AFFIRMED

Sam Bird, Judge

Appellant Robert D. Phillips was convicted of second-degree domestic battering and sentenced to thirty-six months in the Arkansas Department of Correction. He brings this appeal challenging the sufficiency of the evidence used to convict him. Specifically, he alleges that he did not commit second-degree domestic battering because the victim, Shirley Haynes, did not suffer serious physical injuries.

At a bench trial on the matter, Haynes testified that Phillips was her boyfriend, with whom she lived. She testified that on June 4, 2002, she was at a friend's house having a few drinks when Phillips telephoned her asking her to pick him up from her brother's apartment. Because she had her children with her and because she had been drinking, she asked a friend

of hers, Todd Manning, to drive her car to the apartment. Haynes stated that when they arrived, Phillips became upset with her. Manning got out of the car, and Phillips got in and began driving. Haynes attempted to get out of the car, and Phillips pulled her hair and hit her. A cell phone rang, and they struggled for it. Haynes stated that she threw the phone out of the

window in the parking lot of Knight's Grocery. Haynes stated that while they were in the car in the parking lot, Phillips hit her "really, really hard and I think I had started bleeding at that point." She stated that he hit her in the face with his fist. Phillips then reached over Haynes, opened the door and pushed her out of the car. When Haynes got back into the car, Phillips hit her again.

Haynes testified that she was taken by ambulance to the hospital, where it took three hours for her nose to stop bleeding. She stated that she had a fractured nose and cheek bone, a black eye, and a swollen cheek the size of a golf ball. She also had bruises on her arm and upper thigh. She said several days passed before she could see out of her injured eye and that three days passed before she could open it. She could not breathe through her nose. In addition, she stated that her cheek was swollen for two months.

Manning testified that he had driven Haynes to her brother's apartment to pick up Phillips. He testified that Haynes and Phillips began to argue and that he left the two of them and got into his girlfriend's car. He stated that as they pulled out of the apartment complex, he noticed that between Phillips and Haynes, "there was some slugging going on. ... Shirley was trying to protect herself, but, you know, Bobby was definitely manhandling her and definitely hitting her two or three times." He stated that he saw Haynes the night after the incident and "she looked like she had a double or triple black eye if you can imagine that. You know, bloody nose. Her lip was kind of, I mean, it looked - her lips were huge. She just didn't look - she didn't look like a normal person."

Shana Haynie, who was in the car with Manning at the time of the incident, testified that Phillips looked like he was punching something with his fist, but that she could not see what or whom Phillips was hitting. She stated that she saw Phillips driving and Haynes sitting in the passenger's seat.

Thomas Mayberry, a sergeant in the Patrol Division of the Jacksonville Police Department, testified that he responded to a domestic disturbance call involving a male striking a female. When he arrived at the scene, Phillips was in the yard, yelling for the officers to get off of his private property. Mayberry testified that he observed a significant quantity of fresh blood on the porch and that Phillips did not appear to be bleeding. He went inside and observed Haynes in the bathroom bleeding profusely from the nose and mouth with a great deal of swelling around her eyes and nose. She had blood on her legs, and her shirt was soaked in blood. Although Haynes was in pain, crying and having difficulty speaking, she indicated to Mayberry that Phillips had hit her.

Dr. Joe Daugherty, who works in the emergency room at Rebsamen Medical Center, testified that Haynes was brought to the hospital complaining of trauma to the head and face. She had facial hematomas, a broken nose, and closed head trauma. She also had a large amount of facial swelling. Haynes was admitted into intensive care due the amount of blood she was losing.

Phillips testified and denied hitting Haynes. He stated that she was injured when she was trying to get their three-year-old daughter out of the car and Phillips pushed her down. He stated that her intoxication contributed to her fall. He stated that after she fell on the black top in the parking lot, her eye swelled shut. He denied striking Haynes with his fists.

At the end of the State's case, Phillips moved for a directed verdict, stating that he had not caused serious physical injury to Haynes because her injuries were non-life-threatening and because she suffered no protracted disfigurement. The court denied the motion. Phillips renewed his motion at the end of his case, and the court again denied the motion.

A motion for directed verdict is a challenge to the sufficiency of the evidence. Duke v. State, 77 Ark. App. 263, 72 S.W.3d 907 (2002). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State, and consider only that evidence that supports the verdict. Id. Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion one way or another. Id. This court does not weigh the evidence presented at trial, as this is a matter for the fact-finder. Id. This court will not weigh the credibility of the witnesses. Id.

A person commits domestic battering in the second degree if he or she, with the purpose of causing physical injury to a family member or household member, causes serious physical injury to a family or household member. Ark. Code Ann. § 5-26-304(a)(1) (Supp. 2003). Serious physical injury is defined as a physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. Ark. Code Ann. § 5-1-102 (19) (Supp. 2003). Whether a victim has suffered a serious physical injury is an issue for the trier of fact to decide. Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). Likewise, the question of whether injuries constitute a temporary or protracted impairment of a function of a bodily member or organ is for the factfinder to decide. Id.

Phillips contends that the evidence used to convict him of second-degree domestic battering was insufficient because the victim did not suffer serious physical injury. He argues that Haynes was not at risk of dying from the injuries, that there was no protracted impairment of health, and that there was not a loss or protracted impairment of a bodily member or organ. He argues that there was no protracted disfigurement because the swelling on Haynes's cheek lasted only a month and a half, or forty-five days, and that such amount of time is not a prolonged period of time. He argues that because her physical injuries did not cause protracted disfigurement, this court should reverse his conviction and remand the case with instructions to impose a conviction of third-degree domestic battering.

We find Phillips's arguments unpersuasive. Haynes testified that she had a fractured nose and cheek bone, a black eye and a swollen cheek the size of a golf ball. She testified that she could not open her eye for several days. Haynes stated her cheek was swollen for two months. Manning testified that he saw Haynes the day after the incident and that because of her injuries, "she didn't look like a normal person." Sergeant Mayberry testified that he observed Haynes bleeding profusely from the nose and mouth and that she had a great deal of swelling around her eyes and nose. Dr. Joe Daugherty testified that when Haynes was admitted to the emergency room, she had facial hematomas, a broken nose, closed head trauma, and a large amount of facial swelling. Dr. Daugherty also stated that Haynes was admitted into intensive care due to the large amount of blood loss.

Phillips urges us to adopt the definition of protracted as lasting for a long time and to find that Haynes's disfigurement was not protracted because it lasted only forty-five days, which he contends is not a long period of time. We decline to accept Phillips's proposed definition. We consider it sufficient to say that under the facts of this case, the evidence of the nature and duration of Haynes's injuries is sufficient to support a finding by the trial court that Haynes's injuries were protracted. Therefore, we hold that the trial court did not err in denying Phillips's motions for a directed verdict because there was ample evidence that Haynes suffered serious physical injuries.

Affirmed.

Stroud, C.J., and Pittman, J., agree.