Angela Lewis v. State of Arkansas
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NOT DESIGNATED FOR PUBLICATION
ARKANSAS COURT OF APPEALS
DAVID M. GLOVER, JUDGE
DIVISION I
CACR07510
December 12, 2007
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
SEVENTH DIVISION [CR 06646]
ANGELA LEWIS
APPELLANT
V.
HONORABLE BARRY A. SIMS,
CIRCUIT JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
Angela Lewis was convicted in a jury trial of kidnapping, battery in the first
degree, and fleeing. On appeal, she argues that the trial court erred in denying her
motions for directed verdict on all three offenses, and that the trial court also erred in
enhancing her sentence for firstdegree battery because it was committed in the presence
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of a child. We affirm.
We note that at the end of the judgment and commitment order, the trial judge added,
“Defendant must serve 60 months at 100% with no early release or good time, she must serve
300 months at 70% with no early release or good time, and she must serve 240 months at one
half time minus good time; therefore, she must serve a minimum of 330 months before being
eligible for transfer.” While we question the trial court’s authority to impose such
parameters, see Arkansas Code Annotated section 1229201(Repl. 2003) and Upton v. State,
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In Turbyfill v. State, 92 Ark. App. 145, 14950, 211 S.W.3d 557, 559 (2005)
(citations omitted), this court set forth our standard of review for challenges to the
sufficiency of the evidence:
We treat a motion for directed verdict as a challenge to the sufficiency of the
evidence. In our review of the evidence, we seek to determine whether the verdict
is supported by substantial evidence. However, we consider only the evidence that
supports the conviction without weighing it against other evidence that is favorable
to the accused. If the evidence is of sufficient certainty and precision to compel a
conclusion and pass beyond mere suspicion and conjecture, the evidence is
substantial. Further, we do not weigh the credibility of the witnesses on appeal;
such matters are left to the factfinder. A jury is not required to believe the
defendant’s version of events because he is the person most interested in the
outcome of the trial. Also, because of the difficulty in ascertaining intent, it is
presumed that a person intends the natural and probable consequences of his acts,
and the factfinder may draw upon common knowledge and experience to infer the
defendant's intent from the circumstances.
Joann LaRocca was tortured by Lewis and Lewis’s boyfriend, Toriano Scott,
because Scott believed that LaRocca had stolen his drugs. LaRocca was beaten so
severely by Scott and Lewis with a board and a broomstick that her kidneys failed, was
stabbed in the back of her left leg by Lewis, and was pistol whipped in the face by Scott.
Scott also attempted to strangle her with a cord. In addition to these injuries, Lewis also
poured boiling water over LaRocca’s body, causing seconddegree burns that
subsequently converted to thirddegree burns, and Lewis then poured bleach and PineSol
on LaRocca. LaRocca testified that Lewis wrote a note that said “I’m going to kill you”
and showed it to LaRocca; that during the time Scott and Lewis were torturing her, she
68 Ark. App. 84, 4 S.W.3d 510 (1999), we express no opinion on this issue as it was not
raised on appeal.
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never heard Scott threaten Lewis or tell her what to do; that when Scott told Lewis that he
was through and that Lewis could do what she wanted, Lewis continued to hit her and
pour scalding water on her; and that it was Lewis who caused most of the injuries.
LaRocca was able to escape when Scott and Lewis went to a bedroom to lie down.
She fled next door for help, at which time the police were called. When the police
arrived, LaRocca told them that she had been held against her will and tortured, and that
there was a baby in the house about whom she was concerned. Testimony from Officer
Matthew Thomas indicated that when officers went next door, they found Scott and
Lewis running out the back door of the house; that Lewis never asked the officers for
help; that Lewis never said that she was abused or forced to do anything by Scott; and
that, in his opinion, Lewis was not remorseful at all. Detective Julie Rose testified that
she took a statement from Lewis, that Lewis never said anything about Scott forcing her
or threatening her to commit those crimes, and that in her opinion, Lewis was not
remorseful. Rose said that Lewis was laughing during her statement, had a smile on her
face when she was talking about what she did to LaRocca, and “pretty much took
responsibility for pretty much everything and being the force behind it all [the torture.]”
LaRocca was treated at Baptist Hospital, Children’s Hospital, and UAMS. The
medical evidence indicated that LaRocca’s kidney failure was consistent with her being
beaten; that the kidney failure required that she be on dialysis for the rest of her life; and
that the dialysis would decrease her life span. With regard to the burns, the nurse who
treated LaRocca testified that she expected LaRocca to have scars from her thirddegree
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burns and that burn scars left painful, thick, itchy scars. She considered this incident to
be a major health event for LaRocca.
After the State rested, Lewis moved for directed verdicts on all three offenses. As
to kidnapping, Lewis argued that the State had failed to provide any evidence that she or
an accomplice did anything to substantially interfere with LaRocca’s liberty or that it was
Lewis’s purpose to inflict physical injury upon LaRocca or to terrorize her. Lewis also
argued that LaRocca was left in a safe place because she was left untied on the couch and
the door to the house was left open. As to battery in the first degree, Lewis argued that
the State failed to provide any substantial evidence that she purposely did anything to
cause serious physical injury to LaRocca. Lewis also argued that there was no evidence
that any battery occurred in the presence of a child. Finally, Lewis argued that there was
no evidence that she fled; rather, she was standing at the back door and “got down” when
she was instructed to do so by the police. All of these motions were denied by the trial
court.
Prior to trial, Lewis filed a notice of intent to raise duress as a defense. At trial,
she testified about her poor upbringing and that she did not have anyone to help her “do
the right things.” Lewis said that she had two children, but one lived with her mother and
one lived with her aunt. She stated that she met Scott in 2004, that she began living with
him soon after she met him, and that Scott became possessive and had began physically
abusing her and locking her in rooms. Lewis did not deny that she and Scott tortured
LaRocca, but said that she took part in the incident because she was scared of Scott and
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feared for her life. She denied stabbing LaRocca or writing the note about killing
LaRocca. She said that when the police arrived, she was standing in the back door; that
she could not run out the door because her baby was in the house; and that she could not
leave the baby. Lewis again stated that she would not have been involved in the torture of
LaRocca if she had not been afraid of Scott and that she only did what he told her to do.
After Lewis’s testimony, the defense rested and renewed its directed verdict motions,
which were again denied.
Kidnapping
A person commits the offense of kidnapping “if, without consent, the person
restrains another person so as to interfere substantially with the person’s liberty with the
purpose of inflicting physical injury upon the other person [or] terrorizing the other
person or another person.” Ark. Code Ann. § 511102(a)(4) and (6) (Repl. 2006). A
person acts purposely with respect to his conduct when it is his conscious object to
engage in conduct of that nature or to cause the result. Ark. Code Ann. § 52202(1)
(Repl. 2006).
Lewis argues that the trial court erred in denying her motion for directed verdict on
kidnapping because the State failed to provide sufficient evidence that she committed that
offense due to the fact that she was acting under duress.
Arkansas Code Annotated section 52208 (Repl. 2006) provides:
It is an affirmative defense to a prosecution that the actor engaged in the conduct
charged to constitute an offense because the actor reasonably believed he or she
was compelled to engage in the conduct by the threat or use of unlawful force
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against the actor’s person or the person of another that a person of ordinary
firmness in the actor’s situation would not have resisted.
A defendant is required to prove an affirmative defense by a preponderance of the
evidence, and the question as to which way the evidence preponderates is primarily a jury
question. See Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989).
The jury did not find Lewis credible with respect to her claim of duress, as
evidenced by its verdict. Lewis hit LaRocca with a board and a broomstick, and she
poured boiling water, bleach, and PineSol on her. LaRocca also testified that Lewis
stabbed her with a knife. We hold that there is sufficient evidence to support the finding
that Lewis kidnapped LaRocca.
Lewis also argues that she did not commit kidnapping, a Class Y felony, because
she voluntarily released LaRocca alive and in a safe place, which is only a Class B felony
in accordance with Ark. Code Ann. § 511102(b)(2) (Repl. 2006). Lewis contends that
she released LaRocca alive and in a safe place because LaRocca was not bound, was left
on the couch while Lewis took Scott to their bedroom, and was able to escape. We
disagree. First of all, LaRocca escaped, Lewis did not release her. Furthermore, the place
where LaRocca was tortured, which Lewis contends was a safe place, was probably the
most unsafe place for LaRocca to be, given that she was tortured for hours there and her
captors were still in the house when she escaped. We disagree with Lewis’s argument
that LaRocca was released in a safe place.
Battery in the First Degree
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“A person commits battery in the first degree if the person causes serious physical
injury to another person under circumstances manifesting extreme indifference to the
value of human life.” Ark. Code Ann. § 513201(a)(3) (Repl. 2006). “Serious physical
injury” is defined 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. § 51
102(21) (Repl. 2006).
Although she admits that LaRocca sustained serious physical injury, Lewis argues
that the State failed to prove that she caused the serious physical injury under
circumstances manifesting extreme indifference to the value of human life because the
State failed to prove that her conduct created some risk of death, which is required to
manifest extreme indifference to the value of human life. See Harmon v. State, 340 Ark.
18, 8 S.W.3d 472 (2000). Lewis argues that her case is similar to Tigue v. State, 319 Ark.
147, 889 S.W.2d 760 (1994), where our supreme court held that forcibly holding a child’s
hands in hot water, causing thirddegree burns, while constituting serious physical injury,
was not lifethreatening conduct and therefore the child was not injured under
circumstances manifesting extreme indifference to human life. We disagree. LaRocca
was beaten, stabbed, and strangled, and her kidneys were impaired to the extent that she
now is on permanent dialysis. Lewis poured boiling water, bleach, and PineSol onto
LaRocca’s body, causing seconddegree burns that converted to thirddegree burns.
Viewing the evidence in the light most favorable to the State, we hold that there was
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sufficient evidence from which the jury could determine that Lewis’s actions were under
circumstances manifesting extreme indifference to the value of human life.
Lewis also argues that there was insufficient evidence to support a sentence
enhancement because the battery was committed in the presence of a child. Arkansas
Code Annotated section 54702 (Repl. 2006) provides, “Any person who commits a
felony offense involving ... battery ... may be subject to an enhanced sentence of an
additional term of imprisonment of not less than one year and not greater than ten years if
the offense is committed in the presence of a child.” “In the presence of a child” is
defined as “in the physical presence of a child or knowing or having reason to know that a
child is present and may see or hear an act of ... battery ....” Ark. Code Ann. § 54701(2)
(Repl. 2006). Lewis admitted that her baby was in the house, but she argues that the baby
was not physically present and was unable to witness what occurred. A review of the
photographs entered into evidence reveals that the house was small and there were no
doors to several of the rooms in the house. There was testimony from one of the police
officers that when the child was found, she was in a room that had no door on the hinges.
Lewis’s argument ignores the fact that by definition the child does not have to be
physically present in the room where the battery is occurring; rather, it is enough that a
child is present and may hear the battery.
Fleeing
“If a person knows that his or her immediate arrest or detention is being attempted
by a duly authorized law enforcement officer, it is the lawful duty of the person to refrain
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from fleeing, either on foot or by means of any vehicle or conveyance.” Ark. Code Ann.
§ 554125(a) (Repl. 2006). Although Lewis testified that she was simply standing at the
back door of the house when the officers arrived, one of the officer’s testimony indicated
that she was running out the back door. This was a credibility determination for the jury,
which was not required to believe Lewis’s testimony.
Affirmed.
HEFFLEY and BAKER, JJ., agree.
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