Cole v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: CRACRAFT
• Citation: Cole v. State, 802 S.W.2d 472, 33 Ark.App. 98 (Ark. App. 1991)
• Decision Date: 23 January 1991
• Docket Number: No. CA,CA
• Parties: Joseph COLE, Appellant, v. STATE of Arkansas, Appellee. CR 90-154.

Page 472

802 S.W.2d 472

33 Ark.App. 98

Joseph COLE, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 90-154.

Court of Appeals of Arkansas Division II.

Jan. 23, 1991.

Robert S. Blatt, William J. Kropp, III, Fort Smith, for appellant.

Kelly Hill, Asst. Atty. Gen., Little Rock, for appellee.

CRACRAFT, Chief Judge.

Joseph Cole appeals from his conviction of the crimes of interference with a law enforcement officer and battery in the second degree. He advances two points for reversal, both of which involve challenges to the sufficiency of the evidence. We affirm.

On appeal, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellee, and will affirm if there is substantial evidence to support the verdict. Dillard v. State, 20 Ark.App. 35, 723 S.W.2d 373 (1987). A recital of a portion of the factual background is necessary in order to bring these issues into focus. On June 27, 1989, appellant became despondent over financial matters and threatened to take his own life. He so frightened his wife and child that they called his brother and left the home. Appellant's brother, Steve Cole; appellant's nephew and his wife, Anthony and Elizabeth Martin; and Elizabeth Martin's mother drove to appellant's residence to counsel with him. When Anthony Martin and Steve Cole got out of their vehicle and approached the house, appellant came out and fired five shots at them with a .22 rifle and several more with a 30-30 rifle. Martin and Steve Cole then got into the vehicle and were backing out of the driveway when a bullet pierced the windshield, causing head wounds to both Martin and his wife.

A detective with the sheriff's department responded to a call about the disturbance. He, too, was met with a burst of gunfire when he approached the residence. He alerted the state police, and a SWAT team surrounded the house. After more than five hours, appellant surrendered and was placed under arrest. He was charged with two counts of battery in the second degree and one count of interference with a law enforcement officer in the discharge of his official duties. A jury found him guilty of the charges of interference and second-degree battery as to Anthony Martin, but of the lesser offense of third-degree battery as to Elizabeth Martin. The third-degree battery conviction is not appealed.

Appellant first contends that the evidence does not support a finding that he interfered with the officer and that he could only be found guilty of the crime of resisting arrest. Arkansas Code Annotated § 5-54-104 (1987) provides that one commits the offense of interference with a law enforcement officer if he knowingly employs force or threatens to employ force against a law enforcement officer engaged in performing his official duties. Arkansas Code Annotated § 5-54-103 (1987) provides that one commits the offense of resisting arrest if he resists a person known by him to be a law enforcement officer effecting an arrest. Appellant argues that these statutes are to be strictly construed and that one cannot be held to have interfered with an officer in the performance of his duties when the interference is merely a resistance to his own arrest. See Price v. State, 276 Ark. 80, 632 S.W.2d 429 (1982); Gilmer v. State, 269 Ark. 30, 602 S.W.2d 406 (1980); State v. Bocksnick, 268 Ark. 74, 593 S.W.2d 176 (1980); Breakfield v. State, 263 Ark. 398, 566 S.W.2d 729 (1978); Easterly v. State, 8 Ark.App. 135, 648 S.W.2d 843 (1983).

Although those cases do so hold, they do not imply that one may not be found guilty of interference where he interferes with an official investigation that precedes an effort to effect an arrest. In this case, the officer testified that when he arrived at the scene he was informed by the Martins of what had happened and that appellant might still be inside the house. Appellant's physical condition was not known by the Martins. The officer stated that one of his reasons for approaching appellant's dwelling was to find out in fact what had happened since the Martins had left the residence. He was then asked:

Q. You wanted to arrest Mr. Cole, didn't you, for the shooting?

A. No, sir, not at that point in time. Like I say, we had been given some information at that point in time, had been given some information that we felt that Mr. Cole himself might be injured. We weren't sure what we were going to do at that time.

The officer stated that he had information that appellant might have injured himself and it was his duty and responsibility to protect life and property and render assistance to injured persons. He further stated that the first time he knew that appellant was still alive and in the house was when the shots were fired at him.

We think that the jury could have concluded from the officer's testimony that his initial purpose in approaching the house was investigatory and in the performance of his duties to determine the facts and protect both life and property, that appellant interfered with the officer as he was performing a duty other than seeking to arrest appellant, and that the determination to make the arrest and appellant's resistance to it occurred thereafter. From our examination of the record, we cannot conclude that there is no substantial evidence to support appellant's conviction for interference with a law enforcement officer.

Appellant next contends that the evidence was not sufficient to sustain a conviction of second-degree battery as to Anthony Martin. Appellant argues that the State failed to prove that he acted with the purpose of causing physical injury to anyone or that Martin suffered serious physical injury. We find no error.

Arkansas Code Annotated § 5-13-202(a) (1987) provides in pertinent part that one commits battery in the second degree if (1) with the purpose of...