BEARE v. State Of Ark.
| Decision Date | 30 June 2010 |
| Docket Number | CACR 09-1261,NO. CR 2008-315,CR 2008-315 |
| Citation | 2010 Ark. App. 544 |
| Parties | ANTHONY DETEL BEARE APPELLANT v. STATE OF ARKANSAS APPELLEE |
| Court | Arkansas Court of Appeals |
APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT
Anthony Beare appeals from his conviction for battery in the third degree. His attorney filed a no-merit brief and motion to withdraw, pursuant to Anders v. California, 386 U.S. 738, 744-45 (1967) and Arkansas Supreme Court Rule 4-3(k) (2010), and appellant did not file any pro se points for reversal. We affirm the conviction and grant counsel's motion.
Appellant was originally charged with burglary, terroristic threatening, and thirddegree battery based on an incident that occurred at the residence of Kassaundra Woods on the night of October 22, 2008. At the jury trial on July 29, 2009, Woods testified that appellant kicked in the door to her home, demanded that she return a CD player belonging to him, hit her with a shirt, and threw a plastic bottle at her, which left a knot on her head. Yvonne Hill, Woods's roommate at the time of the incident, testified that she heard the doorbeing kicked in and saw appellant hitting Woods with a shirt. She also testified that Woods had a knot on her head.
Lieutenant Eugene Kelly testified that he took Woods's statement after the incident and observed a knot that covered Woods's forehead. He stated that he attempted to take photographs of the injury, but the injury did not show up in pictures because it blended in with Woods's forehead. Lt. Kelly did not have the photographs he had taken. Appellant's counsel then moved to strike Lt. Kelly's testimony and to dismiss the battery charge because there were no photographs to back up Lt. Kelly's observations. The trial court denied both motions, allowing Lt. Kelly's testimony as to what he saw and reasoning that the jury could weigh the testimony to make their own determination.
Sergeant Michael Ephlin, the detective assigned to investigate the case, also testified at the trial. On cross-examination of Sgt. Ephlin, appellant's counsel pointed out that appellant had been in jail for several months while awaiting trial. The State objected to counsel's comment, and the trial court sustained the objection. After Sgt. Ephlin's testimony, the State rested, and appellant moved for directed verdict regarding all charges except the battery charge. Appellant conceded that there was a prima facie case for battery in the third degree.
During his case-in-chief, appellant testified in his own defense and admitted to hitting Woods because she would not return his CD player. However, appellant disputed that she had a bump on her head after he hit her. During cross-examination, the State questionedappellant regarding his prior conviction for residential burglary, a Class B felony. Appellant testified that he pled guilty and, without prompting, stated that he had received five years' probation as a result. The State then questioned whether he had served time due to a probation revocation. Appellant's counsel objected to the revocation question, but appellant indicated a willingness to answer. The objection was overruled, and appellant testified that he had violated his previous probation and been sent to prison.
The jury found appellant guilty of battery in the third degree. During the sentencing phase, the State sought to introduce several prior convictions, including misdemeanors. Appellant objected, arguing that the non-felony convictions were inadmissible. The trial court overruled appellant's objection, and the jury sentenced appellant to 364 days' imprisonment and imposed a $500 fine.
Appellant's counsel filed a timely notice of appeal, followed by a no-merit brief and motion to withdraw as counsel. When an appellant's attorney finds that an appeal would be wholly frivolous, we are bound to review the entire record to ensure the appellant is afforded his constitutional rights. Campbell v. State, 74 Ark. App. 277, 279, 47 S.W.3d 915, 917 (2001).
To avoid double-jeopardy implications, we address the sufficiency of the evidence before any other issues. Stegall v. State, 340 Ark. 184, 189, 8 S.W.3d 538, 542 (2000). In this case, a challenge to the sufficiency of the evidence leading to the battery conviction or the legality of the sentence would be frivolous. A person commits third-degree battery a Class A misdemeanor if, with the purpose of causing physical injury to another person, the person causes physical injury to any person. Ark. Code Ann. § 5-13-203(a)(1) (Repl. 2006). The sentence for a Class A misdemeanor may include imprisonment of up to one year and a fine of up to $2500. Id. §§ 5-4-104(d)(5)(Supp. 2009), 5-4-201(b)(1) (Supp. 2009), 5-4-401(b)(1) (Repl. 2006). When reviewing the sufficiency of evidence leading to a conviction, we consider only the evidence that tends to support the finding of guilt and view it in the light most favorable to the State. Graham v. State, 365 Ark. 274, 275, 229 S.W.3d 30, 32 (2006). We will affirm the trial court's ruling if it is supported by substantial evidence. Coggin v. State, 356 Ark. 424, 431, 156 S.W.3d 712, 717 (2004). Substantial evidence is evidence that is of sufficient force and character to compel a conclusion one way or the other, without speculation or conjecture. Stephenson v. State, 373 Ark. 134, 136, 282 S.W.3d 772, 775 (2008). In considering the evidence presented below, we will not weigh the evidence or assess the credibility of witnesses, as those are questions for the finder of fact. Woods v. State, 363 Ark. 272, 275, 213 S.W.3d 627, 630 (2005).
H ere, appellant admitted to purposely hitting Woods. Woods and two other witnesses testified that she had an injury to her forehead a large knot following the incident. Those three statements are of sufficient force and character to compel the conclusion that appellant's admitted action caused injury to Woods. The resulting punishment was within the limits imposed by statute for a Class A misdemeanor.
O f the other issues raised during the trial that resulted in adverse rulings, only fourwere relevant to the battery...
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