Malak Al Hakim Muhammad v. State of Arkansas

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CACR 03-833

September 1, 2004







John F. Stroud, Jr., Chief Judge

Appellant, Malak Muhammad, was tried by a jury and found guilty of the offense of second-degree domestic battery and of being a habitual offender. He was sentenced to twenty-one years in the Arkansas Department of Correction. In addition, appellant's probation was revoked in another case, which involved check forgery (CR 2001-554), based upon his failure to report to his probation officer and his commission of the offense in the instant case. Upon revocation, the trial court sentenced him to five years in the Arkansas Department of Correction, to be served consecutive to his twenty-one-year sentence for second-degree domestic battery. Appellant's counsel challenges the conviction in the domestic-battery case, contending that the trial court erred in refusing to grant a directed verdict because the victim did not suffer a "serious physical injury" as defined by statute. With respect to the revocation of appellant's probation in the forgery case, his counsel asserts that any appeal from the revocation would be wholly without merit. We affirm the second-degree domestic-battery conviction and the revocation of appellant's probation.

Second-Degree Domestic Battery

Appellant's sole point of appeal with respect to his conviction for second-degree domestic battery challenges the trial court's denial of his motions for directed verdict based upon his contention that the State failed to prove that the victim suffered a "serious physical injury," as defined by the criminal code.

Arkansas Code Annotated section 5-26-304 (Supp. 2003) defines domestic battering in the second degree in pertinent part:

(a) A person commits domestic battering in the second degree if:

(1) With the purpose of causing physical injury to a family or household member, he or she causes serious physical injury to a family or household member[.]

"`Physical injury' means the: (A) Impairment of physical condition; (B) Infliction of substantial pain; or (C) Infliction of bruising, swelling, or visible marks associated with physical trauma[.]" Ark. Code Ann. § 5-1-102 (14) (Supp. 2003). "`Serious physical injury' means 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). Family or household members include, inter alia, spouses, former spouses, and persons who presently or in the past have resided or cohabited together. Ark. Code Ann. § 5-26-302 (Supp. 2003).

At trial, the victim, Diane Chapel, testified that appellant was her ex-husband and that they had been divorced for about four or five years. She testified that he had never lived with her in the apartment on Asher Avenue where the battery took place; however, she explained that on May 26, 2002, she awoke around 2 a.m. to find him inside her apartment. She said that she told him to get out and that he hit "me real hard," and "kept hitting me, and knocking me down and all that" and "he broke my arm." She said that he broke her arm when he was trying to take the cell phone out of her hand as she attempted to call the police. He also threatened to kill her. She stated that as a result of the incident on May 26, her left arm was broken, her other arm was bruised, and her face was swollen from him hitting it. She said that at first, she thought her arm was just "swollen real bad," so she did not go the hospital because she did not have money to go to the doctor. She said that she finally went to the hospital two days later, and that was when she learned that it was broken. She said that they had to reset it and that the doctor told her "it would be deformed because of the top of it." She said that they wanted to do surgery on it, but that she would not let them. She said that they put a cast on that went from her forearm down to her fingers. She said that she wore the cast for six weeks. She said that she still has numbness in her fingers and that it is hard for her to pick up dimes, bobby pins, or other small objects. She also said that it hurts when she mops.

Officer Randall Robinson testified that on May 26, 2002, he was dispatched to Ms. Chapel's apartment; that the call was made at 1:50 a.m.; and that he arrived there at 1:55 a.m. He stated that he noted physical injury to her right jaw bone, her left wrist, and her index finger. He described her as terrified, hysterical, crying, nervous, and shaking. He said that she told him she had been attacked by a person named Malak Muhammad, who had entered her home and struck her several times with his fist.

Dr. Gregory Hall, a faculty emergency-medicine physician at UAMS, testified that he was on duty on May 28, 2002. He said that he saw a patient named Diane Chapel on that day and that she presented complaining of an injury and pain to her left wrist area. He said that she appeared to have some swelling and was "obviously very tender over the distal radius, which is one of the two bones in the forearm." He said that he ordered an x-ray and that it showed she had a fracture of the distal radius just above the wrist. He said that the fracture was "only very slightly displaced, which meant that we were safe in just immobilizing her arm in what we would call a plaster splint which is sort of like a half cast." He said that she complained of pain and that he took a history about the cause of the injury. He explained that he was under the impression that it was her boyfriend that grabbed her arm and twisted it. Dr. Hall testified that the injury "certainly could be consistent with the history that I was given."

The State rested and appellant moved for a directed verdict, contending in pertinent part that the State had not shown that the victim received a serious physical injury. The trial court denied the motion.

Appellant presented several witnesses, and the primary thrust of their testimony was that they had seen Diane Chapel and appellant together on May 25 and that they were acting very "lovey-dovey" with each other, and/or that they saw appellant with another girl, which, they contended, might have motivated Ms. Chapel to lie about appellant. It is not necessary to recount this testimony in detail because the only issue on appeal deals solely with whether the State proved that Chapel suffered a "serious physical injury."

Motions for directed verdict are challenges to the sufficiency of the evidence. Tester v. State, 342 Ark. 549, 30 S.W.3d 99 (2000). When reviewing the denial of a directed verdict motion, the appellate court will look at the evidence in the light most favorable to the State, considering only the evidence that supports the verdict and will affirm if there is substantial evidence to support the jury's conclusion. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other and permits the trier of fact to reach a conclusion without having to resort to speculation or conjecture. Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998).

We find that there was substantial evidence to support the verdict. Physical injury means 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. 2003). Moreover, serious physical injury means 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).

Here, the definition of physical injury is clearly satisfied, and it was made "serious" by the fact that Ms. Chapel suffered the "protracted impairment of the function of any bodily member . . . ," i.e., her left arm, because she had to wear a half-cast for six weeks. Moreover, even after removal of the cast, she suffered numbness and difficulty in picking up small objects.

Revocation of Probation

As we explained in Harris v. State, 72 Ark. App. 227, 235, 35 S.W.3d 819, 824 (2000),

when . . . two cases are considered simultaneously by the trial court, one of which results in an appeal that defense counsel considers to be meritorious, and one of which results in an appeal that defense counsel considers to be without merit, the purpose and spirit of Rule 4-3(j) is best served by requiring that appellant be notified of her right to file points on appeal with respect to the "no-merit" case, notwithstanding that defense counsel has not moved to withdraw from representation of the appellant in both cases.

Here, as in Harris, defense counsel considers the appeal of the domestic-battery case to have merit, but considers the appeal of the probation-revocation case to be without merit. 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 asserted that he has "thoroughly examined the record and determined that there is no non-frivolous argument for reversal of appellant's probation revocation." He asserts that there were no rulings adverse to appellant in the probation revocation proceeding, and that there were no adverse pretrial rulings and no adverse rulings on evidentiary objections made during the trial. Finally, he asserts that the evidence supporting the revocation was substantial. Appellant was provided with a copy of his counsel's brief and notified of his right to file a list of points on appeal within thirty days. He has not filed any points of appeal. In its brief to this court, the State agrees that the appeal from the probation revocation is wholly without merit and that it should be affirmed.

Our review of the record supports appellant's counsel's assertion that there are no adverse rulings in the revocation proceedings. However, because appellant's counsel stipulated that the testimony from the domestic-battery trial would "be as if testified to fully herein" in the revocation hearing, we also reviewed the record for adverse rulings in the domestic-battery trial. During the trial of the domestic-battery case, appellant made a hearsay objection that was overruled by the trial court based in part upon the excited utterance exception. To the extent that any such objections are preserved by the stipulation, we find that the trial court was correct in its ruling. The objection was made during a police officer's testimony when he was about to recount what the victim had told him upon arriving at her apartment. The State had already elicited testimony that the victim was hysterical. Moreover, the victim had already testified about the events at her apartment. We find that an appeal based upon this ruling would be wholly without merit. The only other adverse ruling occurred in the sentencing phase, and involved whether the State was using proper rebuttal. It had nothing to do with the revocation itself, which is the only part treated as a no-merit appeal. Consequently, it would not provide a basis for reversal of the revocation.

To revoke probation or a suspension, the trial court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of that probation or suspension. Ark. Code Ann. § 5-4-309(d) (Supp. 2003). The State bears the burden of proof, but need only prove that the defendant committed one violation of the conditions. Richardson v. State, ____ Ark. App. ____, ____ S.W.3d ____ (March 10, 2004). When appealing a revocation, the appellant has the burden of showing that the trial court's findings are clearly against the preponderance of the evidence. Id. Evidence that is insufficient for a criminal conviction may be sufficient for the revocation of probation or suspended sentence. Id. Since the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the trial judge's superior position. Id.

At the revocation hearing, which immediately followed the domestic-battery trial, John Woolem, a probation officer for the State, testified that he was assigned to serve as appellant's probation officer in Case No. 2001-554, the forgery case. He stated that on October 8, 2001, he met with appellant and reviewed with him the conditions of release on probation that appellant had signed. Included in those conditions were 1) that appellant must obey all federal and state laws, and 2) that he must report to the probation office one time each month, or as ordered by his probation officer, even if he were unable to pay the monies owed. Woolem stated that he explained to appellant about paying supervision fees, about how he must report, and how he must notify Woolem of any and all arrests immediately. He said that he made a return appointment for appellant, but that appellant did not keep it and that the only time they met was on October 8, 2001. He stated that appellant had violated the conditions of his probation because he had failed to report and because he was $300 in arrears on his supervision fees. Appellant's counsel did not challenge anything related to the conditions, and did not rebut the failure to report. In addition, and as noted previously, appellant's counsel stipulated that the testimony given in the domestic-battery trial be made a part of the record in the revocation proceeding "as if testified to fully herein." The court found appellant guilty of violating the rules of probation by failing to report and by committing a felony offense, second-degree domestic battery. Probation was revoked and appellant was sentenced to five years in the Arkansas Department of Correction, to run consecutive to his twenty-one-year sentence in the domestic-battery case.

From our review of the record and briefs presented, we find that there has been full compliance with the requirements of Rule 4-3(j) of the Rules of the Arkansas Supreme Court and the Court of Appeals and that the appeal of the probation revocation is wholly without merit.


Neal and Crabtree, JJ., agree.