Skomp v. State
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Cite as 2010 Ark. App. 392
ARKANSAS COURT OF APPEALS
DIVISION III
No. CACR09-1171
CHARLES E. SKOMP
APPELLANT
Opinion Delivered
MAY 5, 2010
V.
APPEAL FROM THE BRADLEY
COUNTY CIRCUIT COURT
[NO. CR-2008-27-1(D)]
STATE OF ARKANSAS
HONORABLE SAM POPE, JUDGE,
APPELLEE
AFFIRMED
KAREN R. BAKER, Judge
A jury in Bradley County Circuit Court convicted appellant Charles E. Skomp of the
offense of abuse of an endangered or impaired person as a class D felony, in violation of Ark.
Code Ann. § 5-28-103(a) (Repl. 2006).
The jury sentenced appellant to six years’
imprisonment in the Arkansas Department of Correction. Appellant was tried along with
three other defendants, each represented by separate counsel, for the abuse of his stepsister,
Brenda Klines, a mentally impaired adult woman. Appellant’s only argument on appeal is that
the evidence was insufficient to support his conviction. We disagree and affirm the trial
court’s decision.
On July 9, 2008, the State filed an amended felony information in which it charged
appellant, Steven Skomp, Curtis Klines, and Susie Klines with one count each of abuse of an
impaired person, a Class D felony, and first-degree false imprisonment. Prior to trial, the State
Cite as 2010 Ark. App. 392
dismissed the first-degree false-imprisonment charge. Curtis Klines and Susie Klines are
married. The victim of the alleged abuse is Brenda Klines, Curtis Klines’s daughter by a
previous marriage. Appellant and Steven Skomp are Susie Klines’s sons by a prior marriage
and are Brenda’s stepbrothers.
Jeremy Chapman, a patrolman for the Warren Police Department in April and May
of 2008, testified at trial that he was called to a hospital to take a report from Brenda regarding
injuries she had sustained. Brenda had arrived at the hospital with injuries that included
contusions on both sides of her head, swelling around both sides of the head and neck, soft
tissue swelling from both ears, some bleeding from around the neck, bruising to the soles of
the feet, and bruising and redness to the lower back and legs. After Chapman spoke with
Brenda, he contacted the Arkansas Department of Human Services (DHS), who sent adultabuse investigators to the hospital. He then accompanied the DHS investigators to the Klines
residence. Chapman was present when the DHS workers interviewed appellant and the other
defendants. According to Chapman, Steven Skomp told the workers that as a punishment
for Brenda for taking his candy or cell phone, they would make Brenda stand up against a
wall on the tips of her toes and stretch her arms out as far as she could. Chapman testified
that, at the DHS workers’ request, he took a piece of wood and a belt that were found in the
home into evidence.
Mark Wargo, a licensed psychological examiner, performed a psychological evaluation
of Brenda on May 1, 2008. Wargo observed that when he evaluated Brenda, she appeared
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older than her stated age of 49. Wargo testified that Brenda also appeared undernourished,
with low body weight and multiple bruises on her body, including bruising to her head and
neck. Wargo testified that based on his examination, he found that Brenda met the criteria
for moderate mental retardation and that Brenda functioned at about a second-grade
educational level, with the independence level of someone who was seven years, eight
months of age. Wargo testified that Brenda told him that she was using a slop bucket to
relieve herself. Wargo stated that Brenda told him the bruises occurred when she tripped
over the slop bucket and fell; however, Wargo felt that the bruising covered more areas of
her body than would have been caused by only a single incident.
Shawn Hildreth, a criminal investigator with the Warren Police Department, testified
that he interviewed all of the defendants at the Warren Police Department. He had taken
possession of the evidence that Chapman had obtained, which Hildreth described as a onefoot long wooden board and a brown leather belt with no buckle. Hildreth stated that Curtis
Klines appeared to be in ill health at the time and denied having any knowledge of any abuse
to which Brenda may have been subjected. Susie Klines told him that Brenda would be made
to stand in the corner facing the wall for up to two hours at a time, and sometimes on one
leg, as punishment for taking food and not cleaning the residence thoroughly. Hildreth
testified that he attempted on one occasion during his investigation to stand on one leg and
was only able to do so for approximately thirteen minutes without cramping and discomfort.
In explaining the family’s restriction of Brenda’s food, Susie claimed that Brenda was a
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borderline diabetic, and she would steal candy and sweets. Susie also told Hildreth that
Brenda stayed in a trailer behind the residence that would be locked at night and sometimes
during the day to keep Brenda from coming out and taking food and also to keep Brenda’s
sister, who was not a resident of the house, from coming to spend the night in the trailer; but
then Susie stated that they would only lock the trailer when they would leave to go run
errands. Steven Skomp also told Hildreth that Brenda would be forced to stand in the corner
for up to an hour, sometimes on one leg. Hildreth testified that Steven also said that he
assumed Brenda’s trailer was locked at night. Steven told Hildreth he was not aware of
Brenda ever falling down.
Hildreth testified that appellant told him that he never physically struck Brenda, but
he had made her stand in the corner and face the wall. He also locked her in the trailer as
punishment for talking back and stealing “my food.” Appellant self-proclaimed that he was
a “reversed diabetic from Brenda” who bought candy and cupcakes because he occasionally
needed sugar, and Brenda would steal his sweets and eat them. Appellant told Hildreth that
he became frustrated with Brenda stealing his sweets and “told his mother [Susie] that
something had to be done or he was going to do something about it,” which resulted in the
family getting the trailer, putting a lock on it, and moving Brenda into it as a place to live.
Hildreth testified that all of the family members he interviewed acknowledged that Brenda’s
trailer had no electricity or running water, that Brenda had been provided a five-gallon bucket
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to use as a bathroom, and that she had a box fan to keep cool, which was powered by an
extension cord running from the house.
Denise Wright Smith, one of the DHS investigators who interviewed the other adults
in the Klines household, testified that when she saw Brenda Klines, she observed “a very
malnourished, frail, thin woman, quite scary looking,” who was covered in bruises and other
marks. Smith testified that Curtis Klines told the DHS investigators that if Brenda got into
food or other things they did not want her to get into, they disciplined her by “whupping”
her; but then he later denied that he “whupped” her. He claimed that the board and belt
were used to discipline the family’s cat. Both of the Klineses told the workers that Brenda
had behavior problems and would sometimes get out of control. They also said that Brenda
did not need to eat sugar or salt due to health conditions. Appellant told the investigators
that they would have Brenda stand in a corner on her tiptoes and reach for the ceiling, and
Steven Skomp confirmed it. A review of Brenda’s trailer showed that the refrigerator was
empty and the bathroom door was screwed shut. All power was cut off at the breaker box
to the trailer, and a box fan and a clock were powered through an extension cord that ran
outside the trailer.
Dr. David Foscue testified that Brenda had been his patient for several
years. Dr. Foscue stated that Brenda had previously presented with malnutrition, some
dehydration, and an occasional urinary-tract infection or laceration. He stated that he had
addressed the malnutrition and dehydration issues with the Klineses previously, and that
Brenda had not had problems with blood sugar or blood pressure while under his care. Dr.
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Foscue testified that when he saw Brenda when she was admitted to the hospital, he was
shocked at her appearance. When he questioned her, she said that she fell. Dr. Foscue stated
that Brenda’s bruising would not have happened from a fall. Dr. Foscue testified that
although he could not determine exactly what happened to Brenda, it “definitely was not a
fall.” Dr. Foscue also determined that Brenda’s injuries were not the result of a seizure. He
noted that the bruising and swelling covered multiple areas of her body, from her head and
ears to the soles of her feet. Dr. Foscue also observed that some of the bruising appeared to
be very recent, while some of it appeared to be several weeks old. Dr. Foscue testified that
Brenda told him that she did not want to go home because she would “get a whupping.” Dr.
Foscue further testified that Brenda told him that Susie or Curtis would “whup” her with a
paddle and that “the boys” would hold her down while she got a “whupping.” In her
descriptions of the “whuppings” to Dr. Foscue, Brenda said that “they would hurt really bad.”
Brenda indicated that the last time this happened was a week before she went into the
hospital.
Brenda’s sister, Louise Pitts, testified that Brenda came to live with her after she got
out of the hospital. Pitts testified that when Brenda first came to her home, Brenda was
terrified and had frequent nightmares. She also stated that Brenda ate constantly. According
to Pitts, Brenda weighed approximately 100 pounds when she first came to stay with her and
145 pounds a few weeks prior to the trial. Pitts testified that at the time of trial, Brenda
continued to have headaches and problems with her hearing due to the damage to her ears.
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After the State rested its case, defendant Steven Skomp made a motion for directed
verdict, and appellant adopted all of Steven’s arguments. Appellant argued in his motion that
the State failed to prove (1) that he was Brenda’s caregiver, (2) that he abused her, and (3) that
any actions attributed to him caused her to suffer physical injury. The trial court ruled that,
viewing the evidence in the light most favorable to the State, appellant assumed the position
of caregiver to Brenda, Brenda was an impaired or endangered person, and Brenda sustained
physical injury. However, the trial court granted a directed verdict with respect to the offense
being a Class B felony because the court concluded that the State failed to prove that any
abuse resulted in serious physical injuries; accordingly, the trial judge reduced the charge to
a Class D felony, reserving the question whether appellant had committed a Class D felony
for the jury. Following the guilt phase of the trial, the jury returned a verdict of guilty on the
charge of abuse of an impaired person, a Class D felony. The trial court sentenced appellant
to seventy-two months’ imprisonment in the Arkansas Department of Correction, and this
appeal followed.
Appellant argues on appeal that the trial court erred by denying his motion for a
directed verdict. A motion for a directed verdict is a challenge to the sufficiency of the
evidence. Kelley v. State, 103 Ark. App. 110, 286 S.W.3d 746 (2008). In reviewing a
challenge to the sufficiency of the evidence, we view the evidence in a light most favorable
to the State and consider only the evidence that supports the verdict. Id. We affirm a
conviction if substantial evidence exists to support it. Id. Substantial evidence is that which
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is of sufficient force and character that it will, with reasonable certainty, compel a conclusion
one way or the other, without resorting to speculation or conjecture. We defer to the jury’s
determination on the matter of witness credibility. Id. Jurors do not and need not view each
fact in isolation, but rather may consider the evidence as a whole. Id. The jury is entitled to
draw any reasonable inference from circumstantial evidence to the same extent that it can
from direct evidence. Id.
Appellant was convicted of abuse of an impaired person, a Class D felony, in violation
of Arkansas Code Annotated section 5-28-103, which states that “[i]t is unlawful for any
person or caregiver to abuse, neglect, or exploit any endangered person or impaired person
subject to protection under a provision of this chapter.” Ark. Code Ann. § 5-28-103(a). In
particular, the provisions regarding abuse that causes physical injury state, in pertinent part,
as follows:
If the abuse causes physical injury, any person or caregiver who purposely abuses an
adult endangered person or an adult impaired person in violation of a provision of this
chapter is guilty of a Class D felony.
Ark. Code Ann. § 5-28-103(b)(2) (emphasis supplied). The offense is a Class B felony if it
results in serious physical injury or a substantial risk of death. See Ark. Code Ann. § 5-28103(b)(1).
For his first point on appeal, appellant argues that the State failed to prove that he was
a caregiver to Brenda, which he contends is necessary for a conviction under section 5-28103. In support of his argument, appellant cites our supreme court’s decision in Law v. State,
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375 Ark. 505, 292 S.W.3d 277 (2009). In Law, the court interpreted section 5-28-103(c)(1),
which sets forth the elements of neglect of an endangered or impaired adult, to require proof
that the defendant had assumed the position of caregiver. The State argues that appellant is
misreading the holding in Law, and that the holding in that case does not apply here. We
agree with the State. In Law, the supreme court did hold that the State was required to prove
that the defendant in that case was a caregiver in order to sustain a conviction. The key
distinction between Law and this case is that the supreme court specifically determined that
the defendant in Law was convicted of neglect of an impaired person under section 5-28103(c)(1), while appellant was convicted of abuse of an impaired person under section 5-28103(b)(2). The Code’s definition of “neglect” with respect to the provisions regarding abuse
of adults includes the following:
A purposeful act or omission by a caregiver responsible for the care and supervision of
an adult endangered person or an adult impaired person that constitutes negligently
failing to:
(i) Provide necessary treatment, rehabilitation, care, food, clothing, shelter, supervision,
or medical services to an adult endangered person or an adult impaired person;
(ii) Report a health problem or a change in a health problem or a change in the health
condition of an adult endangered person or an adult impaired person to the
appropriate medical personnel;
(iii) Carry out a prescribed treatment plan; or
(iv) Provide a good or service necessary to avoid physical harm, mental anguish, or
mental illness as defined in regulations promulgated by the Office of Long-Term Care
of the Division of Medical Services of the Department of Health and Human Services
to an adult long-term care facility resident.
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Ark. Code Ann. § 5-28-101(11)(B) (Repl. 2006) (emphasis supplied). Therefore, the
supreme court reasoned that being a caregiver was an element necessary to prove “neglect”
of an impaired person under section 5-28-103(C). On the other hand, “abuse” is defined as
follows:
(A) Any purposeful and unnecessary physical act that inflicts pain on or causes injury
to an endangered person or an impaired person;
(B) Any purposeful or demeaning act that a reasonable person would believe subjects
an endangered person or an impaired person, regardless of age, ability to comprehend,
or disability, to ridicule or psychological injury in a manner likely to provoke fear or
alarm;
(C) Any purposeful threat that a reasonable person would find credible and
nonfrivolous to inflict pain on or cause injury to an endangered person or an impaired
person except in the course of medical treatment or for justifiable cause; or
(D) With regard to any adult long-term care facility resident by a caregiver, any
purposeful infliction of injury, unreasonable confinement, intimidation, or punishment
with resulting physical harm, pain, or mental anguish.
Ark. Code Ann. § 5-28-101(1). The definition of abuse does not contain the requirement
that the person committing the abuse be a caregiver, except under section 5-28-101(1)(D),
where the victim is a resident in an adult long-term care facility, which Brenda was not.
Rather, section 5-28-103(a) makes it unlawful for “any person or caregiver” to abuse an
impaired person. Further, the legislature also chose to require the disjunctive “any person or
caregiver,” who purposely abuses an impaired person, which causes physical injury, in order
to meet the requirements set forth in section 5-28-103(b)(2) of the Code. Therefore, because
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appellant was convicted of abuse and not neglect, the supreme court’s decision in Law does
not apply. The State was not required to prove that appellant was a caregiver to Brenda.1
Appellant’s second argument on appeal is that the State failed to prove that he abused
Brenda. As set forth above, “abuse” includes “[a]ny purposeful and unnecessary physical act
that inflicts pain or causes injury to . . . an impaired person.” Ark. Code Ann. § 5-28101(1)(A). As appellant does not contend that Brenda failed to meet the definition of an
“impaired person,” we need not consider that element of the definition of abuser. The State
presented ample evidence at trial of appellant’s purposeful and unnecessary physical acts that
inflicted pain or caused injury to Brenda. The State produced testimony that appellant would
force Brenda to stand for long periods of time and that he assisted in the Klineses’ beatings of
Brenda, and produced evidence of the physical injuries with which she presented at the
hospital. This was sufficient evidence for the jury to conclude that appellant committed acts
that would fall under the definition of abuse.
Appellant’s final point on appeal is that the State failed to prove that any of his actions
caused physical injury to Brenda. As noted above, Dr. Foscue testified that Brenda’s extensive
Even if the court were to consider whether appellant was a caregiver for purposes of
the statute, the State presented substantial evidence to support such an element. Caregiver
is defined as “a related or unrelated person . . . that has the responsibility for the protection,
care, or custody of an adult endangered person or an adult impaired person as a result of
assuming the responsibility voluntarily, by contract, through employment, or by order of the
court.” Ark. Code Ann. § 5-28-101(3). There was testimony that appellant lived in the same
household as Brenda and that he claimed he would punish her “for her own good” because
they “could not beat her,” although there was testimony that she was held down by the
brothers while she received “whuppings” with a belt and paddle. This evidence was sufficient
for the jury to conclude that appellant was voluntarily acting as a caregiver for Brenda.
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bruising could not have occurred in the manner she described. In addition, Brenda told Dr.
Foscue that appellant assisted the Klineses in beating her. In determining whether a physical
injury exists, a jury may rely upon its common knowledge, experiences, and observations in
life to make this determination. Butler v. State, 2009 Ark. App. 695, ___ S.W.3d ___. The
State produced sufficient evidence to allow the jury to conclude that appellant’s actions
resulted in physical injury to Brenda.
Affirmed.
PITTMAN and HART, JJ., agree.
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