Phillip L. Mays and Gwendolyn Mays v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CACR04-47

DECEMBER 8, 2004

PHILLIP L. MAYS & AN APPEAL FROM THE ASHLEY

GWENDOLYN MAYS COUNTY CIRCUIT COURT [CR-2001-

APPELLANTS 301-1 A & B]

V.

STATE OF ARKANSAS HONORABLE ROBERT C. VITTITOW, JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

Appellants Phillip and Gwendolyn Mays were charged with battery in the first degree. Following a jury trial, they were convicted of that offense and each sentenced to five years' imprisonment and a $15,000 fine. From that decision comes this appeal.

For reversal, appellants argue that (1) the trial court erred as a matter of law when it refused to instruct the jury on the lesser-included offense of third-degree battery, (2) defendants' motions for directed verdict should have been granted and the verdict of the jury is not supported by substantial evidence, (3) the trial court improperly excused jurors for cause, and (4) the trial court committed error when it failed to instruct the jurors regarding alternative sentences and compounded that error when it refused to entertain the defendants' post-trial motion asking the court to suspend their sentences. We affirm.

Double jeopardy considerations require that we consider sufficiency challenges before any other points raised. See Taylor v. State, 77 Ark. App. 144, 72 S.W.3d 882 (2002). A directed-verdict motion is a challenge to the sufficiency of the evidence. Id. Arkansas Code Annotated section 5-13-201(a)(6) (Repl. 1997) provides that a person commits battery in the first degree if he "intentionally or knowingly without legal justification causes serious physical injury to one he knows to be twelve (12) years of age or younger." When the sufficiency of the evidence is challenged, we consider only the evidence that supports the verdict, viewing the evidence in the light most favorable to the State. Id. The test is whether there is substantial evidence to support the verdict, which is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Id.

Viewing the evidence in the light most favorable to the State, the record reflects that appellant Phillip Mays, after learning that one of his eight adopted children had stolen some money at school, burned the child's hands while his wife, appellant Gwendolyn Mays, held a candle behind the child. The seven-year-old child testified that Phillip Mays burned her hands and that she still has to go to the doctor for her hands. The child's nine-year-old brother also testified that his father burned his sister's hands while all of them were present. Additionally, the child's ten-year-old sister testified that her father burned her sister's hands in their presence and that her mother stood behind the girl with a candle and told her that if she moved she was going to get burned from behind. Both parents testified and denied burning the child. They explained that she burned her hands while warming them near a stove.

Appellants assert first that the evidence presented did not prove that the child suffered a serious physical injury. "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). The record shows that this injury occurred when the child was five years old and that she is still undergoing treatment for her injuries. Dr. Timothy Simon testified that:

Ever since she was taken into DHS custody I've been treating her. That's been about a year and a half. I initially sent her to Dr. Ron Robertson, Arkansas Children's Hospital Burn Center. As for any other doctors after that, well, actually, she came back to me and then I referred her back to Dr. Robertson because of some problems she was having with her hand. I saw her, I can't tell you the exact date, probably a month or two ago, to reevaluate her hand and make sure she had good flexion and extension, which she did not. . . . I was worried about future function so I referred her back to Dr. Robertson and I talked to his office and we have since referred her to Arkansas Children's Hospital plastic surgery clinic[,] Dr. Ewing[,] [f]or possible surgery or at least for evaluation for surgery.

We hold that there is substantial evidence to show that the victim in the present case sustained a serious physical injury as defined by Ark. Code Ann. § 5-1-102(19).

Appellants next contend that there "was never any risk of death so under Tigue v. State[, 319 Ark. 147, 889 S.W.2d 760 (1994)] the proof did not reach the level of `serious physical injury.'" This argument is unavailing, and in Britt v. State, 83 Ark. App. 117, 123-24, 118 S.W.3d 140, 143-44 (2003), we explained why:

The holding in Tigue is based on the particular statutory requirement of subsection (a)(3) of section 5-13-201, which requires that the actor cause serious physical injury to another person under circumstances manifesting extreme indifference to human life. However, the appellant in the present case was not charged with violating that subsection. The subsection that appellant was found to have violated did not exist at the time Tigue was decided, but instead originated in an Act to Expand the Definition of Battery in the First Degree, Act 360 of 1995, enacted in the legislative session following the decision in Tigue. This Act added subsection (a)(6), providing that a person also commits battery in the first degree if he intentionally or knowingly without legal justification causes serious physical injury to one he knows to be twelve years of age or younger. Ark. Code Ann. § 5-13-201(a)(6). Unlike the subsection at issue in Tigue, subsection (a)(6) has no requirement of an intent manifesting extreme indifference to human life. Appellant in the present case was charged with and convicted of a violation of Ark. Code Ann. § 5-13-201(a)(6), and the discussion of subsection (a)(3) found in Tigue is inapplicable. Instead, the question in the present case is simply whether the evidence supports a finding that appellant acted intentionally or knowingly, and there was a plethora of medical testimony to show that the victim's injuries could not have been accidental but were instead intentionally inflicted. We cannot say that this testimony does not constitute substantial evidence that appellant acted knowingly or intentionally.

Finally with regard to sufficiency, appellant argues that the "testimony on how [the child] was burned varied greatly. The only three witnesses who could testify that [the child] was intentionally burned were three children." The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Tate v. State, 84 Ark. App. 184, 137 S.W.3d 404 (2003). Furthermore, the court obviously found that the children were competent to testify, i.e., found that they had a moral awareness of the obligation to tell the truth and an ability to observe, remember, and relate facts, because it allowed the children to testify. See Clem v. State, 351 Ark.112 90 S.W.3d 428 (2002).

Appellants also argue that the trial court erred in refusing to give the jury instruction for third- degree battery. We have acknowledged that it is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by the slightest evidence. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). However, the trial court may refuse to offer a jury instruction on an included offense when there is no rational basis for a verdict acquitting the defendant of the charged offense and convicting him of the included offense. Id. Moreover, it is not error for the trial court to decline to give the proffered instruction on the lesser offense when the evidence clearly shows that the defendant is either guilty of the greater offense charged or innocent. Id. In cases in which a defendant makes a claim of innocence, no rational basis exists to instruct the jury on a lesser-included offense because the jury need only determine whether the defendant is guilty of the crime charged. Id.

Appellants asserted in their testimony that they were not guilty of the charges against them. Therefore, there was no rational basis for the court to instruct the jury on a lesser-included offense because the jury needed only to determine whether appellants were guilty of the crime charged. Furthermore, the jury was instructed on first-degree battery and second-degree battery; it convicted appellants of first-degree battery. The "skip rule" provides that when a lesser included offense instruction has been given, and the jury convicts of the greater offense, error resulting from the failure to give an instruction on another still-lesser included offense is cured. See Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000).

Appellants argue third that the trial court improperly excused jurors for cause. As the State

contends, this argument was not preserved for appellate review. Appellant failed to object to the dismissal of two jurors for cause and this failure prevents us from addressing the issue on appeal. See Buckley v. State, 341 Ark. 864, 20 S.W.3d 331 (2000).

In appellants' final arguments, they assert that the trial court committed error when it failed to instruct the jurors on AMCI 2d 9111, which would have allowed them to recommend alternative sentencing options to the trial court and that the court erred when it refused to entertain their post-trial motion asking the court to suspend their sentences. These arguments are unpersuasive.

The decision to allow alternative sentencing is reviewed for an abuse of discretion. Vanesch v. State, 343 Ark. 381, 37 S.W.3d 196 (2001). The appellate courts have held on numerous occasions that the failure to proffer or abstract a proposed instruction precludes us from considering the issue on appeal. See State v. Hagan-Sherwin, ___ Ark. ___, ___ S.W.3d ___ (Apr. 8, 2004). Therefore, appellant's failure to proffer in this instance precludes our review of the issue.

Finally, appellants argue that the court erred in failing to entertain their post-trial motion requesting suspended sentences. We disagree. According to Rule 33.2 of the Arkansas Rules of Criminal Procedure:

Upon the return of a verdict of guilty in a case tried by a jury, or a finding of guilty in a case tried by a circuit court without a jury, sentence may be pronounced and the judgment of the court may be then and there entered, or sentencing and the entry of the judgment may be postponed to a date certain then fixed by the court, not more than thirty (30) days thereafter, at which time probation reports may be submitted, matters of mitigation presented or any other matter heard that the court of the defendant might deem appropriate to consider before the pronouncement of sentence and entry of the formal judgment.

The jury verdict was read on June 27, 2003. The amended judgment and commitment orders were filed on June 30, 2003. Appellants made a post-trial motion on July 3, 2003. Here, the trial court announced the jury's verdict, after which appellants' counsel stated:

I do want to file a motion that asks the court to consider suspension of the sentence and to have a hearing on that. I don't know whether to do that before or after the judgments are entered. Because once this is signed I don't know if this court - I guess we could.

Counsel never requested the court to postpone the entry of the judgment so that his motion could be filed.

Furthermore, by the time the motion was filed, the court had lost jurisdiction over the case. A sentence by a circuit court to pay a fine is put into execution when the judgment of conviction is entered. Climer v. State, 80 Ark. App. 281, 95 S.W.3d 11 (2003). A trial court loses jurisdiction to modify or amend an original sentence once the sentence is put into execution. Gavin v. State, 354 Ark. 425, 125 S.W.3d 189 (2003). In the instant case, the jury gave each appellant a $15,000 fine as part of their sentence. The sentence was executed when the judgment was entered. Therefore, the court lacked jurisdiction at the time appellants' motion had been filed.

Affirmed.

Stroud, C.J., and Gladwin, J., agree.