Alyce Davis v. State of Arkansas

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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ar04-115

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION II

ALYCE DAVIS

APPELLANT

V.

STATE OF ARKANSAS APPELLEE

CACR 04-115

June 29, 2005

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

SEVENTH DIVISION [CR2003-105]

HONORABLE BARRY A. SIMS,

CIRCUIT JUDGE

AFFIRMED; MOTION GRANTED

David M. Glover, Judge

Alyce Davis was convicted in a bench trial of domestic battery in the second degree, and she was sentenced to eighteen months in the Arkansas Department of Correction.1 Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Arkansas Rules of the Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw on the grounds that the appeal is without merit. Counsel's motion was accompanied by a brief referring to everything in the record that might arguably support an appeal, including a list of all rulings adverse to appellant made by the trial court on all objections, motions and requests made by either party with an explanation as

to why each adverse ruling is not a meritorious ground for reversal. The clerk of this court furnished appellant with a copy of her counsel's brief and notified her of her right to file pro se points; appellant has not filed any points.

There were only three rulings adverse to appellant - the denial of her motion to dismiss after the State's case in chief; the denial of her renewal of the motion to dismiss; and the fact that the trial judge ordered appellant to serve eighteen months in the Arkansas Department of Correction instead of placing appellant on probation as she requested. None of these adverse rulings constitutes reversible error.

The denial of appellant's motions to dismiss can be discussed together. A motion to dismiss in a non-jury trial is a challenge to the sufficiency of the evidence. Gamble v. State, 82 Ark. App. 216, 105 S.W.3d 801 (2003). When the sufficiency of the evidence is challenged, the appellate court considers only that evidence which supports the guilty verdict, and the test is whether there is substantial evidence to support the verdict. Blockman v. State, 69 Ark. App. 192, 11 S.W.3d 562 (2000). Substantial evidence is evidence of such certainty and precision as to compel a conclusion one way or another. Id.

A person commits domestic battering in the second degree if, with the purpose of causing physical injury to a family or household member, she causes physical injury to a family or household member by means of a deadly weapon. Ark. Code Ann. § 5-26-304(a)(2) (Supp. 2003). "Physical injury" is the impairment of physical condition; infliction of substantial pain; or infliction of bruising, swelling, or visible marks associated with physical trauma. Ark. Code Ann. § 5-1-102(14) (Supp. 2003). "Deadly weapon" is defined as a firearm or anything manifestly designed, made, or adapted for thepurpose of inflicting death or serious physical injury; or anything that in the manner of its use or intended use is capable of causing death or serious physical injury. Ark. Code Ann. § 5-1-102(4) (Supp. 2003). A person acts "purposely" with respect to her conduct or a result thereof when it is her conscious object to engage in conduct of that nature or to cause such a result. Ark. Code Ann. § 5-2-202(1) (Repl. 1997).

In the present case, appellant's husband, Harold Davis, testified that appellant stabbed him in the arm with a knife during an argument over cooking some fish. He said that he did not think that appellant stabbed him accidentally, and he had to have twenty-one stitches in his arm as a result of the stabbing. At the close of the State's case, appellant moved for a directed verdict, arguing that the State had failed to prove that she had purposely caused the physical injury. Appellant took the stand in her own defense and admitted that she had stabbed her husband with the knife, but she claimed that she thought he was going to harm her. Appellant then renewed her motion for directed verdict, which was again denied, and the trial court found appellant guilty of second-degree domestic battering.

The denial of appellant's motions for dismissal is not reversible error. The evidence set forth above, when viewed in the light most favorable to the State, clearly supports the finding that appellant purposely caused her husband physical injury with a knife.

Other than the motions for dismissal, there was only one ruling decided adversely to appellant. At the sentencing hearing, both appellant and her husband asked the trial judge to be lenient and sentence appellant to probation because of her health. However,the trial judge sentenced appellant to serve eighteen months in the Arkansas Department of Correction.

Whether to place a defendant on probation is a decision within the discretion of the trial judge. Rodgers v. State, 348 Ark. 106, 71 S.W.3d 579 (2002). The trial judge was under no obligation to place appellant on probation, and his refusal to do so does not constitute reversible error.

From a review of the record and the brief presented to this court, appellant's counsel has complied with the requirements of Rule 4-3(j) of the Arkansas Rules of the Supreme Court and the Court of Appeals, and the appeal is without merit. Counsel's motion to be relieved is granted, and appellant's conviction is affirmed.

Affirmed; motion granted.

Griffen and Roaf, JJ., agree.

1 We note that appellant received an illegal sentence in that she received less than the minimum sentence for domestic battering in the second degree, which is a Class C felony. Ark. Code Ann. §5-26-304(b)(1) (Supp. 2003). The sentencing range for a Class C felony is three to ten years, Ark. Code Ann. § 5-4-401(a)(4) (Repl. 1997), but appellant was sentenced to eighteen months. However, because the State has not filed a direct appeal or a cross-appeal, this illegal sentence cannot be corrected. See Cook v. State, 46 Ark. App. 169, 878 S.W.2d 765 (1994).