Paul D. Claxton, Jr. v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

PAUL D. CLAXTON, JR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-322

December 1, 2004

APPEAL FROM THE SALINE COUNTY CIRCUIT COURT

[NO. 02-690-2]

HON. GARY M. ARNOLD,

CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

Paul D. Claxton, Jr., was convicted in a Saline County bench trial of first-degree battery for which he was sentenced to 120 months in the Arkansas Department of Correction, of which sixty months were suspended. On appeal, he argues that the evidence was insufficient to support a conviction of battery in the first degree. We affirm.

The conviction arose out of a September 30, 2002, altercation between the victim, Lloyd Barnum, and Claxton and his co-defendant, Justin Landreth. Apparently the situation was precipitated by a fight between Landreth's and Barnum's girlfriends. Claxton was charged by information with first-degree battery. The charging document did not specify under which subsection of Arkansas Code Annotated section 5-13-201 that Claxton was being prosecuted, but it did list Justin Landreth as a co-defendant.

The relevant testimony adduced at the trial is as follows. Dr. Jim Farris Box, an emergency room physician at Southwest Hospital, testified that he treated Barnum after the fight. Dr. Box recounted that Barnum had bruising circumferentially around each eye, a

four-centimeter laceration above the right eye, and approximately a two-centimeter laceration above the left eye. Barnum also had bruising around his jaw and abrasions on his elbow and the back of his chest wall. X-rays revealed multiple fractures in the facial bones with "some communicating with the skull." The right cheek bone was fractured in three places. There were also some radiological findings that indicated that Barnum's left orbit was fractured. Additionally, Barnum had a skull fracture. A CT scan revealed that Barnum had a cerebral hematoma. Dr. Fox opined that the injuries he observed looked like they were caused by two blows. He further opined that the injuries "were not life threatening," and that the "injuries did not create a substantial risk of death." When asked on direct examination if he observed any disfigurement of the victim, Dr. Fox testified that he could not observe any.

Barnum testified that the altercation occurred about forty yards from his driveway. He was initially knocked to the ground by a blow that he claimed he did not remember. He did recall, however, looking up and seeing Claxton preparing to hit him "from the right side of [his] face." Barnum claimed that he did not remember any blows to his body and that he did not know how many times he was hit that night. According to Barnum, his whole body felt "numb," and he was unable to see as he crawled back to his house. He stated that he was hospitalized for "somewhere between five and seven days," and that he was "sore" for about four months and still suffered pain at the time of trial. He also claimed that he had trouble sleeping, memory loss, "knots" on his face, scars on his face and elbow, and a problem with stuttering.

Landreth testified that Barnum threatened him verbally and physically with the knife and ball-and-chain weapon that Barnum had brought to the altercation. After Barnum punched him in the face, struck him with the ball-and-chain, and pressed the knife against his stomach, Landreth admitted that he swung the bat that he was carrying at Barnum and hit Barnum on the left side of his face, "about as hard as I could have hit anybody." Barnum went down immediately. According to Landreth, Claxton asked for the bat, and he handed it to him before he fled from the scene. Landreth claimed that he left immediately and was not "aware" that Claxton hit Barnum.

Brandon Fleming confirmed that Landreth hit Barnum on the left side of his face with the bat. He stated that Barnum fell over "face first to the right." Fleming testified that when Barnum was hit by Landreth, Barnum did nothing to break his fall, "he just fell over." After the blow, Barnum did not move. As Landreth "took off running," Claxton came up behind him and grabbed the bat. Landreth then observed Claxton go back toward Barnum. When Claxton got within five or ten feet of Barnum, Barnum rolled over and put his hand up. Fleming observed Claxton hit Barnum with the bat. Although Fleming claimed he could not tell where the blow was aimed, he heard a "crack." He then heard screams and "a couple of thuds." Fleming stated that Claxton hit Barnum three times, with at least one blow being delivered to Barnum's mid-section.

Stephen Rollans, also an eyewitness to and participant in the altercation, testified that he saw Landreth hit Barnum in the head with the bat and that the blow put Barnum on the ground. According to Rollans, after striking the blow, Landreth immediately fled the scene. In his directed-verdict motion at the close of all the evidence, Claxton argued that there was no proof of serious physical injury, either in regard to having been inflicted by means of a deadly weapon or under circumstances manifesting extreme indifference to the value of human life. Claxton was convicted as charged.

On appeal, Claxton argues that the evidence presented at trial was insufficient to support a conviction of battery in the first degree because the evidence failed to show that the victim suffered a "serious physical injury." He notes that Dr. Box testified that the injuries that Barnum suffered were "not life threatening, did not cause substantial risk of death, and did not result in permanent disfigurement or impairment of any bodily organs." Claxton asserts that the trial judge wrongly relied upon "similar facts" in an "unrelated case" to conclude that "any one blow to the head with a baseball bat is a serious physical injury with a substantial risk of death." He contends that the trial judge erred because he in effect took "judicial notice" of a disputed fact. Claxton also argues that there was no evidence that he actually hit Barnum in the head and that the circumstances do not justify a finding of extreme indifference to human life, another necessary element to the crime. We disagree.

The test for determining sufficient proof is whether there is substantial evidence to support the verdict. Daffron v. State, 318 Ark. 182, 885 S.W.2d 3 (1994). On appeal, this court reviews the evidence in the light most favorable to the State and sustains the conviction if there is substantial evidence to support it. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. The offense of first-degree battery is codified in pertinent part under Arkansas Code Annotated section 5-13-201 (Repl. 1997) as follows:

(a) A person commits battery in the first degree if:

(1) With the purpose of causing serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon; or

. . .

(3) He causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life[.]

Our criminal code defines "serious physical injury" as "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) (Repl. 1997).

We believe that there was substantial evidence of protracted impairment of the victim's cognitive functions. Barnum attributed memory loss, trouble sleeping, and his stuttering to the beating he received. Also, there was evidence of at least some protracted disfigurement; Barnum testified that he had "knots" on his face and scars on his face and elbow. Furthermore, the injuries suffered by Barnum, lacerations above each eye, extensive bruising around his eyes, an abrasion to his elbow, and two distinctive welts raised on his torso, were of at least the same magnitude as those suffered by the victim in Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999) (holding two lacerations on the victim's scalp, approximately five centimeters in length, that were closed with staples, along with bruises on her forehead and face and blunt injuries to her scalp and the back of her head were substantial evidence of serious physical injury).

We also reject Claxton's assertion that the trial judge erred in taking judicial notice of disputed facts. In the first place, the record indicates that Claxton did not object to the trial judge's statement or in any way apprise the trial judge that he was making an incorrect statement of law. It is well settled that it is the aggrieved party's duty to promptly object so that the trial judge is afforded an opportunity to timely correct the mistake. See, e.g., Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000). In the second place, we do not subscribe to Claxton's interpretation of the trial judge's statement1 as taking judicial notice of any predicate fact relating to the issue of whether Claxton inflicted a serious physical injury. Rather, we interpret the trial judge's statement to be recognition that, although not an element of the crime, life-threatening conduct was involved. Such an interpretation is consistent with case law, including a case that Claxton cites in his brief, that suggests that "`life endangering conduct' must generally be involved" in order to sustain a conviction for first-degree battery. See Bolden v. State, 267 Ark. 504, 593 S.W.2d 156 (1980).

Regarding the portion of Claxton's argument concerning the asserted failure of proof that he actually hit Barnum in the head with the bat, this issue is unavailing for several reasons. In the first place, Claxton was charged as an accomplice to Landreth, and it is not disputed that Landreth hit Barnum in the head. Therefore, whether Claxton did or did not hit Barnum in the head is of no moment. See Carter v. State, 324 Ark. 249, 921 S.W.2d 583 (1996). Secondly, in reviewing the testimony in the light most favorable to the verdict, as we must, we find that there is substantial evidence that Claxton actually hit Barnum in the head. We note that Landreth stated unequivocally that he only struck Barnum in the head one time, and that testimony was corroborated by Stephen Rollans and Brandon Fleming. Dr. Fox, however, testified that Barnum's injuries were the result of two blows. This testimony is strong circumstantial evidence that Claxton struck the second blow.

Finally, regarding Claxton's argument that there is insufficient evidence that he battered Barnum with extreme indifference to human life, we hold that it is not preserved for our review. Claxton's directed-verdict motion only asserted that there was insufficient proof of serious physical injury. Accordingly, we decline to consider this portion of his argument on appeal. Newman v. State, 353 Ark. 258, 106 S.W.3d 438 (2003); Ark. R. Crim. P. 33.1.

Affirmed.

Vaught and Pittman, JJ., agree.

1 "I'm satisfied, beyond a reasonable doubt, that the defendant is guilty of the offense of First Degree Battery and, therefore, find him guilty of that offense as charged. The injury sustained was clearly a serious physical injury. Any one blow to the head with a baseball bat creates a substantial risk of death, in fact it's been proven in this Court. About three years ago a very similar injury resulted in death."