Enoch v. State
| Decision Date | 26 February 1992 |
| Docket Number | No. CA,CA |
| Citation | 826 S.W.2d 291,37 Ark.App. 103 |
| Parties | John Dale ENOCH, Appellant, v. STATE of Arkansas, Appellee. CR 91-81. |
| Court | Arkansas Court of Appeals |
John William Murphy, Fayetteville, for appellant.
Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.
Appellant, John Dale Enoch, was convicted of first degree assault, a Class A misdemeanor, and sentenced to 365 days in the Washington County Jail. He argues on appeal that (1) the trial court erred in failing to dismiss the assault charge; (2) the assault charge placed him in double jeopardy which is barred by Article 2, Section 8, of the Arkansas Constitution; and (3) his motion for a directed verdict should have been granted.
West Fork Police Officer Maynard Kennedy testified at the circuit court trial that on May 5, 1990, he received a call from the Washington County Sheriff's Office regarding a possible drunk driver in a brown van, license number LGG-123, headed south on Highway 71. Kennedy said he saw the vehicle following closely behind a large truck, shining a spotlight at the truck, and tailgating it. He said he followed the van and stopped it, and the driver got out and produced his driver's license, which identified him as John Dale Enoch. According to Kennedy he asked appellant if he had been drinking, and appellant admitted that he had consumed six or seven beers. Kennedy said he gave appellant a field sobriety test, which appellant failed, and Kennedy then placed appellant under arrest for driving while intoxicated.
Officer Kennedy testified further that when he attempted to place appellant in the patrol car appellant bolted, attempted to kick Kennedy twice, said "Kill me or I'll kill you," and ran. Kennedy said he told his companion, Tim Caudle, to call for backup. In the meantime, appellant stopped at a pile of rocks, picked up one, and threw it at Kennedy who put his arm up to stop the rock from hitting his head; however, the rock hit his wrist, broke his watch, bounced off his shoulder, and fell to the ground. Kennedy estimated the rock was thrown approximately 25-30 feet.
Officer Kennedy said he charged appellant with driving while intoxicated, violating the implied consent law (Ark.Code Ann. § 5-65-202) (Supp.1991)), and resisting arrest. Appellant entered a plea of guilty in West Fork Municipal Court to each of these charges, and was subsequently charged in Washington County Circuit Court with the felonies of terroristic threatening, fleeing, and aggravated assault, all arising out of the same incident. Prior to trial, counsel for appellant moved to dismiss these charges on the grounds of double jeopardy. The trial court granted the motion as to the terroristic threatening and fleeing charges, but refused to dismiss the aggravated assault charge. A jury convicted appellant of the lesser included offense of first degree assault and this appeal followed.
Appellant's third argument is that his motion for a directed verdict as to the assault charge should have been granted. A motion for a directed verdict is a challenge to the sufficiency of the evidence. McIntosh v. State, 296 Ark. 167, 753 S.W.2d 273 (1988). In Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), the Arkansas Supreme Court held that when there is a challenge to the sufficiency of the evidence, we must review that point prior to considering any alleged trial errors and, in doing so, we must consider all the evidence, including any which may have been inadmissible, in the light most favorable to the appellee. In resolving the question of the sufficiency of the evidence in a criminal case, this court views the evidence in the light most favorable to the appellee and affirms the judgment if there is any substantial evidence to support the finding of the trier of fact. Ryan v. State, 30 Ark.App. 196, 786 S.W.2d 835 (1990). Substantial evidence is that which 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. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989); Ryan v. State, supra.
The appellant contends his conduct did not constitute aggravated assault because it did not create a substantial danger of death or serious physical injury to another person. He argues that the evidence shows that he only attempted to kick the officer and threw a rock at him. Appellant was convicted of the lesser included offense of first degree assault, so we need not discuss the aggravated assault charge. First degree assault is committed when a person "recklessly engages in conduct which creates a substantial risk of death or serious physical injury to another person," and it is a Class A misdemeanor. Ark.Code Ann. § 5-13-205 (1987). Recklessly is defined in Ark.Code Ann. § 5-2-202(3) (1987) as follows:
A person acts recklessly with respect to attendant circumstances or a result of his conduct when he consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that deviation from the standard of care that a reasonable person would observe in the actor's situation.
And Ark.Code Ann. § 5-1-102(19) (1987) defines serious physical injury 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."
Serious physical injury has been found where the victim was struck three times with a fist causing face fractures and impairment of vision for about two weeks, Lum v. State, 281 Ark. 495, 665 S.W.2d 265 (1984), and where the victim suffered a broken leg, fractured toe, and bruised heel and pelvis, Harmon v. State, 260 Ark. 665, 543 S.W.2d 43 (1976).
Officer Kennedy testified that, as the result of being struck by the rock, he suffered a bruised shoulder and a damaged nerve in his arm. He wore a brace for a week, his thumb had no feeling for a while, and at the time of the trial he still did not have full strength in his thumb or full gripping power with that hand. He testified that he missed work for a week because of his injuries and that his arm still tingled at times. We think this constitutes serious physical injury and that there is substantial evidence from which the jury could conclude that appellant engaged in reckless conduct which created a substantial risk of serious physical injury to another person.
Appellant's first argument is that because he had entered a plea of guilty in municipal court to resisting arrest, the judge of the circuit court erred in refusing to dismiss the assault charge as it violated the provisions of Ark.Code Ann. § 5-1-110 (1987). That section provides in pertinent part as follows:
(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(1) One offense is included in the other, as defined in subsection (b) of this section; ....
(b) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(1) It is established by proof of the same or less than all the elements required to establish the commission of the offense charged; ....
An offense is included within another offense if it is established by proof of the same or less than all the elements required to establish the commission of the other offense. See Strawhacker v. State, 304 Ark. 726, 731, 804 S.W.2d 720 (1991). An offense is not a lesser included offense of another when each requires proof of a fact which is not required by the other, the elements of the statutory definitions being different. See Rhodes v. State, 293 Ark. 211, 736 S.W.2d 284 (1987); Thomas v. State, 280 Ark. 593, 660 S.W.2d 169 (1983). A comparison of the elements of proof required to establish resisting arrest and aggravated or first degree assault reveal the dissimilarities between the crimes.
Resisting arrest is committed when a person "knowingly resists a person known by him to be a law enforcement officer effecting an arrest," and "resists" means "using or threatening to use physical force or any other means that creates a substantial risk of physical injury to any person." Ark.Code Ann. § 5-54-103(a)(1), (2) (Supp.1991). Thus, to prove appellant resisted arrest it was only necessary to show that when Officer Kennedy attempted to arrest appellant, appellant knew that Kennedy was a police officer and that appellant resisted the arrest by any means that created a substantial risk of physical injury to the officer. To prove either aggravated or first degree assault the prosecution had to show that appellant engaged in conduct which created "a substantial risk of...
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