Lum v. State, CR
| Decision Date | 05 March 1984 |
| Docket Number | No. CR,CR |
| Citation | 665 S.W.2d 265,281 Ark. 495 |
| Parties | Daniel Elmer LUM, Appellant, v. STATE of Arkansas, Appellee. 84-20. |
| Court | Arkansas Supreme Court |
David W. Kirk, El Dorado, for appellant.
Steve Clark, Atty. Gen. by Patricia G. Cherry, Asst. Atty. Gen., Little Rock, for appellee.
Appellant Daniel Lum, was charged with the offense of battery in the first degree of Annette Mautz under Ark.Stat.Ann. § 41-1601(1)(c). He was tried before a jury, found guilty of battery in the second degree and sentenced to six years. Appellant raises three points for reversal, none of which have merit.
There is no dispute as to the facts of the case, and the appellant himself testified, describing the battery and the surrounding circumstances. Appellant had been living with Debbie Hamm, for about one year and Annette Mautz, Debbie's younger sister, had persuaded Debbie to move out of Lum's apartment. Later that day, Lum saw Annette in her car with her children and Debbie. Lum described what happened:
I'm not really disputing any of the facts that have been brought out here today ... I come out by the car there, I looked in there and seen Annette. I opened the door and told that she was going to get her ass whupped (sic) ...and then I caught her by the hair of the head, pulled her over to the side and hit her three times. I hit her with my balled up fist.... I am six foot three inches in height and weigh 200 pounds ... I was mad and I think I had a right to be mad. I lost control of my temper. Annette didn't have a gun or knife or anything. She didn't threaten me in any way. I hit her three times in the face. All three times were in the same place. I pulled her over by the hair of the head.
The victim's husband saw his wife immediately after the beating and testified that "the right side of her head was swollen from the top of her head down to her neck, terribly, and she had blood coming out of her right eye, coming out of her nostrils, coming out of her mouth and coming out of her right ear." The victim's twelve-year old daughter was watching as Lum struck her mother and testified that "she had blood coming out her eye and her nose and her mouth and it was over her clothes, the car seat, steering wheel and all in her hair." The victim was hospitalized for five days. Her physician testified in detail to the extent and nature of her injuries. She had suffered fractures in three areas of her face--the area surrounding the right eye socket, the sinus wall and the cheekbone. Holes were drilled in the boney area near the eye socket and nasal passages to allow for the wiring together of the cheekbone area. She had impaired vision for approximately two weeks, two months of pain, six weeks of medical supervision and continues to lack some feeling in the right side of her face.
Appellant's first two arguments address essentially the same issue and we will deal with them together. At the close of the state's case, the appellant moved for a directed verdict on the grounds that there was insufficient evidence of a "serious physical injury" as required by § 1601(1)(c), which reads:
A person commits battery in the first degree if: he causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life.
The motion was denied. Appellant was subsequently found guilty of battery in the second degree under § 41-1602(1)(a):
A person commits battery in the second degree if: with the purpose of causing physical injury to another person, he causes serious physical injury to any person.
Appellant argues that there was insufficient evidence to support the jury's finding that appellant caused "serious physical injury."
A directed verdict is given only in cases where no issues of fact exist and the court reviews the evidence in the light most favorable to the appellee. Burks v. State, 255 Ark. 23, 498 S.W.2d 336 (1973). In determining the sufficiency of the evidence the court must determine whether there is substantial evidence to support the verdict- --evidence that is forceful enough to compel a conclusion one way or another beyond suspicion and conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).
Serious physical injury is defined in § 41-115(19):
"Serious physical injury" means 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.
In Harmon v. State, 260 Ark. 665, 543 S.W.2d 43 (1976) the appellant raised the same argument surrounding the nature of a "serious physical injury." In that case the victim ...
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State v. B.T.D.
...Accordingly, the statutory language accommodates constitutional commands." (internal citations omitted)); Lum v. State, 281 Ark. 495, 498-99, 665 S.W.2d 265, 267 (1984) (holding that a statutory definition of "serious physical injury" substantively identical to that of § 13A-1-2(14) was not......
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Brown v State
...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 Double Je......
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Harmon v State, 98-1354
...to support the finding of serious physical injury does exist. This conclusion is consistent with our holding in Lum v. State, 281 Ark. 495, 665 S.W.2d 265 (1984), where we held that three blows to the head with a fist resulting in fractures to the face and the victim's hospitalization for f......
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Enoch v. State
...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.......