Kenneth Thomas v. State of Arkansas
Annotate this Case
Download PDF
ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
WENDELL L. GRIFFEN, JUDGE
DIVISION III
CACR06-1465
September 19, 2007
KENNETH THOMAS
APPELLANT
AN APPEAL FROM PULASKI
COUNTY CIRCUIT COURT
[CR2006-519]
V.
HON. WILLARD PROCTOR, JR.,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
At a bench trial held on August 28, 2005, Kenneth Thomas was convicted of
aggravated assault on a family or household member and criminal mischief in the first degree.
He challenges the sufficiency of the evidence to support the aggravated-assault conviction,
contending that the State failed to prove that he created a substantial danger of death or
serious physical injury to the victim. We affirm, holding that the State presented sufficient
evidence to support the conviction when it showed that appellant struck the victim with a
weed eater, even though the blow only caused minor injuries.
Most of the evidence presented at trial came from the testimony of Melissa Mills, the
mother of appellant’s son. On the evening of July 27, 2005, appellant was at Mills’s home
when she saw him leaning over the kitchen stove with a glass pipe. Mills told appellant, “I
don’t want you doing that around here.” The two moved to the living room and started
arguing. Mills then asked appellant to leave. Appellant left, retrieved a weed eater from the
back of the house, and began beating the front door with the weed eater. Mills later retrieved
a knife from the kitchen and opened the door. After arguing, Mills again told appellant to
leave. Appellant then struck Mills with the weed eater; Mills responded by cutting appellant
with the knife.1 Appellant left the house and broke the windows in the living room. During
the altercation, appellant brought a manhole cover into Mills’s living room. Little Rock
police officer Stan Wilhite described Mills’s injuries as “some bruises and a couple of scrapes”
on her right arm.
At the close of the evidence, appellant made motions for directed verdict. With
respect to the aggravated-assault charge, appellant argued that the State failed to prove that
he purposely engaged in conduct that created a substantial danger of death or serious physical
injury to Mills and that, at best, the State proved battery in the third degree. The court
denied his motion. After hearing evidence on other charges, the court found appellant guilty
of criminal mischief in the first degree and aggravated assault on a family member and
sentenced him to two concurrent eight-year terms of imprisonment.
Appellant challenges the sufficiency of the evidence to support the conviction for
aggravated assault on a family or household member. He contends that the State failed to
introduce substantial evidence that he engaged in conduct that created a substantial danger of
death or serious physical injury to the victim.
A motion to dismiss at a bench trial is a challenge to the sufficiency of the evidence.
Stewart v. State, 362 Ark. 400, 208 S.W.3d 768 (2005). We review the evidence in the light
most favorable to the State. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003). The test
for determining the sufficiency of the evidence is whether the verdict is supported by
substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful
enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id.
1
Appellant testified that he was admitted to UAMS for three or four days with a
punctured lung.
2
Only evidence supporting the verdict will be considered. Id.
A person commits aggravated assault on a family or household member if, under
circumstances manifesting extreme indifference to the value of human life, the person
purposely engages in conduct that creates a substantial danger of death or serious physical
injury to a family or household member. Ark. Code Ann. § 5-26-306(a) (Repl. 2006).2
Appellant argues, “A defendant creates a risk of serious physical injury to the victim when he
causes ‘physical injury that creates a substantial risk of death or causes protracted disfigurement,
protracted impairment of health, or loss or protracted impairment of the function of any
bodily member or organ’” (emphasis added). However, this is merely the definition of
“serious physical injury.” See Ark. Code Ann. § 5-1-102(21) (Repl. 2006). It is not the
proper standard for determining whether someone has “create[d] a substantial danger of death
or serious physical injury.”
One does not have to actually cause death or serious physical injury to be convicted
of aggravated assault on a family or household member. In Nelson v. State, 84 Ark. App. 373,
141 S.W.3d 900 (2004), we affirmed a conviction for aggravated assault on a family or
household member when the appellant grabbed a shotgun and pointed it at his father and his
children. The appellant’s father wrestled the gun away before the appellant could do anything
with it. In Williams v. State, 96 Ark. App. 277, ___ S.W.3d ____ (2006), we affirmed a
conviction for aggravated assault on a family or household member when the appellant
attempted to hit the victims with her automobile. We rejected the argument that the
testimony showing that she attempted to hit the victims with the car did not constitute
substantial evidence that she engaged in conduct that created a substantial danger of death or
serious injury to the victims.
2
Mills is a “family or household member” under the statute. See Ark. Code Ann. § 5-26302(2)(G) (Repl. 2006) (“Persons who have or have had a child in common”).
3
Appellant also argues that the trial court had to speculate about the potential lethality
of the weed eater because the weed eater was not introduced into evidence. However, our
supreme court had held that a five-foot length of iron pipe was capable of causing death or
serious injury. See Jones v. State, 292 Ark. 183, 729 S.W.2d 10 (1987). In reaching that
conclusion, the court listed several items less lethal than an iron pipe that other jurisdictions
have held to be a deadly weapon: a flashlight, a walking cane, a stone measuring two-bythree-by-nine inches, an unloaded pistol used as a striking object, a broomstick, boots, and
even fists (depending on the manner of usage). See id. (citations omitted).
The trier of fact is not required to set aside common sense in determining whether the
accused created a substantial danger of death or serious injury to the victim. Williams, supra.
In addition, the court is not required to judge the severity of swinging the weed eater in
isolation; it may consider other actions of violence in conjunction with the event constituting
aggravated assault. See id. Here, appellant, after arguing with the victim, attempted to hit her
with a weed eater, brought a manhole cover into the dwelling, and later broke several
windows in the victim’s home. Although Mills suffered relatively superficial injuries, a trier
of fact could reasonably conclude that an angry person swinging a weed eater is creating a
substantial danger of death or serious physical injury as prescribed by the statute in question.
We hold that the State presented substantial evidence to support the conviction for
aggravated assault on a family or household member. We affirm.
Affirmed.
G LADWIN and V AUGHT, JJ., agree.
4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
