Brown v State

• Decision Date: 27 June 2001
• Docket Number: 99-1092
• Citation: 47 S.W.3d 314
• Parties: JAMES BROWN, APPELLANT, V. STATE OF ARKANSAS, APPELLEE. CACR 99-1092 Arkansas Court of Appeals 27 June 2001 APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT HONORABLE BERLIN C. JONES, CIRCUIT JUDGE AFFIRMED. John B. Robbins, Judge. James Brown appeals from his convictions for second-degree battery and committing a terroristic act. His points for reversal are: 1) his convictions on both charges arose from the same conduct and constitute double jeopardy, 2) the State failed to prove that he caused serious physical injury to the victim, and thus the trial court erred in denying his motions for directed verdict, and 3) the trial court erred in denying his motion for a mistrial. We find no error and affirm. On
• Court: Arkansas Court of Appeals

JAMES BROWN, APPELLANT,

V.

STATE OF ARKANSAS, APPELLEE

CACR 99-1092

Arkansas Court of Appeals

27 June 2001

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. CR97-950-1] HONORABLE BERLIN C. JONES, CIRCUIT JUDGE AFFIRMED.

John B. Robbins, Judge.

James Brown appeals from his convictions for second-degree battery and committing a terroristic act. His points for reversal are: 1) his convictions on both charges arose from the same conduct and constitute double jeopardy, 2) the State failed to prove that he caused serious physical injury to the victim, and thus the trial court erred in denying his motions for directed verdict, and 3) the trial court erred in denying his motion for a mistrial. We find no error and affirm.

On October 27, 1997, appellant allegedly fired multiple shots from a rifle into a van that was being driven by his wife, Shirley Brown. He was charged with first-degree battery, a Class B felony (count 1), and committing a terroristic act, a Class Y felony (count 2), with regard to Shirley Brown.¹

At the close of the State's case and at the close of all of the evidence, appellant moved for a directed verdict, asserting that the State failed to prove that Mrs. Brown suffered serious physical injury. He also moved at the close of the evidence to compel the State to elect between counts 1 and 2 so as to identify which alleged offense it wished to proceed on with regard to Mrs. Brown. Appellant argued that both charges were based on the same conduct. The trial court denied appellant's motions.

The trial court instructed the jury regarding first, second, and third-degree battery and committing a terroristic act. The jury retired, deliberated, and found appellant guilty of second-degree battery and committing a terroristic act. During the sentencing phase, the jury sent several notes to the trial judge questioning its sentencing options. Appellant moved for a mistrial, arguing that the jury was confused. The trial court denied the motion. Appellant was sentenced to serve 120 months for his conviction for committing a terroristic act, and was ordered to pay a $1.00 fine for second-degree battery.

Arguments Not Preserved for Appeal

Although appellant raises his double-jeopardy argument first, preservation of the appellant's right to freedom from double jeopardy requires us to examine the sufficiency of the evidence before we review trial errors. See Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994). Appellant argued in his motion for a directed verdict that the State failed to prove that he caused serious physical injury to Mrs. Brown, proof of which was necessary to sustain a conviction for both first-degree battery and a Class Y conviction for committing a terroristic act. The State maintains that appellant's argument is not preserved for appeal because he did not properly challenge the sufficiency of the evidence with regard to the elements of second-degree battery.

We agree. Appellant was originally charged with first-degree battery, but the jury was instructed with regard to first, second, and third-degree battery. First-degree battery requires proof of purposefully causing serious physical injuryto another by means of a deadly weapon. See Ark. Code Ann. § 5-13-201 (a)(1) (Repl. 1997). Second-degree battery is a lesser-included offense of first-degree battery, and may be shown by proof of either purposefully causing physical injury to another, purposely causing serious physical injury to another person by means of a deadly weapon, or by recklessly causing physical injury to another person by means of a deadly weapon. See Ark. Code Ann. §§ 5-13-202(a)(1)-(3).

Under Arkansas law, in order to preserve for appeal the sufficiency of the evidence to support a conviction of a lesser-included offense, a defendant's motion for a directed verdict must address the elements of the lesser-included offense. See Moore v. State, 330 Ark. 514, 954 S.W.2d 932 (1997); Webb v. State, 328 Ark. 12, 941 S.W.2d 417 (1997). Appellant moved for a directed verdict only on the ground that there was insufficient proof of serious physical injury and did not address the remaining elements under the second-degree battery statute. Therefore, we hold that his challenge to the sufficiency of the evidence is not preserved for appeal.

Similarly, we hold that appellant's argument that his convictions for both committing a terroristic act and second-degree battery violate Arkansas Code Annotated section 5-1-110(4) and (5) (Repl. 1997) is not preserved for appeal. Subsection (a)(4) provides that a defendant may not be convicted of more than one offense if the offenses differ only in that one is designed to prohibit a designated kind of conduct generally and the other offense is designed to prohibit a specific instance of that conduct. Subsection (a)(5) provides that a defendant may not be convicted of more than one offense "if the conduct constitutes an offense defined as a continuing course of conduct and the defendant's course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses."

Appellant argues in his brief that the second-degree battery statute specifically prohibits individuals with various mental states from causing injury to other persons, whereas the statute prohibiting the commission of a terroristic act prohibits the general act of shooting or projecting objects at structures and conveyances in order to protect both the property and the occupants. He further argues that, pursuant to section (a)(5), that the single act of shooting was a continuing course of conduct. However, appellant did not raise these specific objections below and wedecline to address issues raised for the first time on appeal. See Breedlove v. State, 62 Ark. App. 219, 970 S.W.2d 313 (1998).

Sufficiency of the Evidence

We do address, however, the sufficiency of the evidence as to serious physical injury as it relates to committing a terroristic act, Class Y felony. This crime is defined in Ark. Code Ann. § 5-13-310 (Repl. 1997), and the jury was instructed to consider the following relevant portions of that statute:

(a) For purposes of this section, a person commits a terroristic act when, while not in the commission of a lawful act:

(1) He shoots at or in any manner projects an object with the purpose to cause injury to persons or property at a conveyance which is being operated or which is occupied by passengers[.]

....

(b)(2) Any person who shall commit a terroristic act as defined in subsection (a) of this section shall be deemed guilty of a Class Y felony if the person, with the purpose of causing physical injury to another person, causes serious physical injury or death to any person.

A motion for directed verdict challenges the sufficiency of the evidence. Ayers v. State, 334 Ark. 258, 268, 975 S.W.2d 88, 93 (1998). On review, the appellate court views the evidence and all reasonable inferences deducible therefromin the light most favorable to the appellee and affirms if there is substantial evidence to support the conviction. Wilson v. State, 56 Ark. App. 47, 48, 939 S.W.2d 313, 314 (1997). Substantial evidence is that which has sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Smith v. State, 337 Ark. 239, 241, 988 S.W.2d 492, 493 (1999). Only evidence that supports the conviction will be considered. McDole v. State, 339 Ark. 391, 396, 6 S.W.3d 74, 77 (1999).

Serious physical injury is an 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. § 5-1-102(19) (Repl. 1997). Ms. Brown testified that she was hit by gunfire in the buttocks area; that, as a result, part of her intestine was removed; that she had to wear a colostomy bag for three months after the shooting; that she stayed in the hospital for nine days; and that she incurred nearly $30,000 in medical expenses. Not only did she lose part of a bodily organ, her intestine, but she lost function, as well, to such an extent that she needed a colostomy bag for three months. That is substantialevidence of serious physical injury. See also Henderson v. State, 291 Ark. 138, 722 S.W.2d 842 (1987). Moreover, whether injuries are temporary or protracted is a question for the jury. Lum v. State, 281 Ark. 495, 499, 665 S.W.2d 265, 267 (1984); Harmon v. State, 260 Ark. 665, 670, 543 S.W.2d 43, 46 (1976). The trial court properly denied the appellant's motion.

Double Jeopardy

At the close of the State's case, appellant's attorney made the following argument:

[W]e are at the point in this trial where the State must choose whether it's going forth with battery in the first degree and terroristic act. But the terroristic act count involving Mrs. Brown ... is based upon the same or - well, actually the same facts and circumstances as the battery in the first-degree charge, the distinction being one is a Class [B] felony and one is a Class Y.

In other words, the same facts that you would use to convict someone of battery in the first-degree and the facts in this case are identical to those that you would use for a terroristic act.

At the conclusion of the evidence, appellant's attorney renewed his plea to the trial judge:

We would move to dismiss, again and renew our motion stating that the terroristic act, the count describing the terroristic act, is a duplicate or duplicative of the first degree battery charges in-on the facts of this case; that in effect we are trying this man, we would be submitting it to the jury on two counts that would require the same identical facts for a conviction.

. . . .

[I]t's unfair to the defendant to-to have it submitted to the jury on both counts, when he could be convicted of both counts, when, in reality, it's one set of facts and one act...