Price v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: KAREN R. BAKER, Judge.
• Citation: Price v. State , 2009 Ark. App. 664, 344 S.W.3d 678 (Ark. App. 2009)
• Decision Date: 07 October 2009
• Docket Number: No. CA CR 08–942.,CA CR 08–942.
• Parties: Daniel G. PRICE, Appellant,v.STATE of Arkansas, Appellee.

2009 Ark. App. 664

344 S.W.3d 678

Daniel G. PRICE, Appellant,

v.STATE of Arkansas, Appellee.

No. CA CR 08–942.

Court of Appeals of Arkansas.

Oct. 7, 2009.

Daniel G. Price, appellant, pro se.Dustin McDaniel, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.KAREN R. BAKER, Judge.

A Pulaski County jury convicted appellant, Daniel G. Price, of endangering the welfare of a minor, second degree, a misdemeanor, and sentenced him to one year in jail and a $1000 fine. The jury also convicted him of battery in the second degree, a felony, and sentenced appellant to seventy-two months in the Arkansas Department of Correction and a $10,000 fine. Appellant, pro se, challenges his two convictions alleging the following points of error: (1) The trial court erred when it denied appellant his counsel of choice; (2) Appellant's Sixth, Eighth, and Fourteenth Amendment rights were denied by defense counsel refusing to let him testify; (3) The trial court erred by denying the motion for directed verdict; (4) Prosecutorial misconduct improperly inflamed the jury; (5) The cumulative effect of ineffective counsel infected and prejudiced the whole trial. We find no error and affirm.

Appellant's third point of error claims that the evidence was insufficient to convict him because the prosecution failed to prove that he acted knowingly, so as to support a charge of “reckless endangerment.” Appellant apparently means to refer to his conviction for endangering the welfare of a minor in the second degree. Although the State argues that the claim is not preserved for appeal because of a lack of specificity in the directed verdict motion, see Jefferson v. State, 359 Ark. 454, 198 S.W.3d 527 (2004), we reach the merits and hold that sufficient evidence supports appellant's convictions of endangering the welfare of a minor and second-degree battery.

The standard of review in cases challenging the sufficiency of the evidence is well established. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Kelley v. State, 103 Ark.App. 110, 286 S.W.3d 746 (2008). This court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id. We affirm a conviction if substantial evidence exists to support it. Id. 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. Id. We defer to the jury's determination on the matter of witness credibility. Id. Jurors do not and need not view each fact in isolation, but may consider the evidence as a whole. Id. The jury is entitled to draw any reasonable inference from circumstantial evidence to the same extent that it can from direct evidence. Id.

A person acts “purposely” with respect to his conduct or a result thereof “when it is his conscious object to engage in conduct of that nature or to cause such a result.” Ark.Code Ann. § 5–2–202(1) (Repl.2006). Intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Bell v. State, 99 Ark.App. 300, 306, 259 S.W.3d 472, 475–76 (2007). A presumption exists that a person intends the natural and probable consequence of his acts. Id.

A person commits the offense of endangering the welfare of a minor in the second degree if he or she knowingly engages in conduct creating a substantial risk of serious harm to the physical or mental welfare of another person known by the person to be a minor. Ark.Code Ann. § 5–27–206(a) (Repl.2006). Serious harm to the physical or mental welfare means physical or mental injury that causes protracted disfigurement, protracted impairment of physical or mental health, or loss or protracted impairment of the function of any bodily member or organ. Id.

A person commits second degree battery if, with the purpose of causing physical injury to another person, the person causes serious physical injury to any person. Ark.Code Ann. § 5–13–202(a)(1) (Repl.2006). Under the criminal code, a person acts “purposely,” for purposes of battery in the second degree, when it is the actor's conscious object to engage in conduct of that nature or to cause such a result. See Ark.Code Ann. § 5–2–202(1); e.g., Cole v. State, 33 Ark.App. 98, 102, 802 S.W.2d 472, 475 (1991). To determine if a physical injury exists, a jury may consider the severity of the attack and may rely on its common knowledge, experiences, and observations in life to make this determination. Linn v. State, 84 Ark.App. 141, 133 S.W.3d 407 (2003).

The jury in this case was entitled to draw the reasonable inference that appellant knowingly engaged in conduct that created a risk of serious harm to the victim in this case and to find that appellant purposely caused serious physical injury to the victim. On the morning of Friday, February 2, 2007, twenty-one-month-old Braxton Robinson was left in the care of appellant, his mother's boyfriend. When appellant went to take a shower, he left Superglue out, with the cap off, that he had been using to repair a cracked computer case. When he emerged from the shower, Braxton was crying and had Superglue all over his hands and face, with one eye glued shut and the other three quarters of the way shut. Appellant attempted to remove the glue from the child's face by wiping Braxton's face and eyes with a wet towel. When that effort failed, appellant poured CLR—calcium, lime, and rust remover—on Braxton's hands and wiped the child's forehead with a towel soaked in the solution. The CLR label provides, among other things, that it causes skin and eye irritation and warns that “[i]n case of contact with skin or eyes, flush with cold water for 15 minutes, call physician if irritation continues[,] and that “(household rubber gloves)” should be worn if it is going to be used on another substance.” When the CLR failed to remove the glue, appellant rubbed what he described as an “industrial strength cleaner,” EZ Kleen, onto Braxton's forehead. Its label cautions to “[a]void contact with eyes. In case of eye contact, flush with water for 15 minutes and get medical attention” and that it is “TOXIC.”

After appellant's attempts to remove the glue failed, he called his employer who informed him that acetone would break down Superglue. Appellant went to Wal–Mart with the child to buy nail-polish remover with acetone, which he applied to Braxton's hands and face when they returned home. By this time, Braxton's eyes were shut and he told appellant that it hurt when appellant touched them. Appellant decided to take Braxton to the home of his ex-wife's cousin, Debbie Siebert. En route, he called his insurance plan's health coach who advised him to call the Poison Control Center. According to appellant, the Poison Control Center told him about acetone and directed him to not try to pry the child's eyes open.

Appellant and Braxton arrived at Siebert's home around 5 p.m. with Braxton's lips and eyes swollen with his eyes sealed shut. He also had red and white splotches on his face. Appellant and Siebert placed Neosporin with painkiller on his face and gave him Benadryl. Appellant did not describe to Siebert the extent of his attempts to remove the glue, instead telling her that he had put baby oil on it. Appellant left after an hour leaving Braxton in Siebert's care. Siebert understood that appellant would return with the child's mother, whom he had yet to inform of the child's injuries. Appellant did not return that evening, and when he returned the next day informed Siebert that he had still not informed the mother of the child's condition, although the mother knew that Braxton was in Siebert's care. Later that day, Siebert took Braxton to his mother who immediately took him to a nearby hospital, which transferred him to the Arkansas Children's Hospital burn unit. When Siebert informed appellant that they had taken Braxton to the hospital, appellant replied, “Thanks a lot, Debbie.”

Witnesses testified about the extent of the second-degree burns on Braxton's face and the painful process of burn treatment—stating that it was the most painful type of burn to have—and Braxton's need for several pain medications. Braxton's father related his son's expression of pain, and a doctor explained that the skin of children Braxton's age was more susceptible to burns than someone older because their skin was more pliable and delicate and that the substances used by appellant could cause burns. Scabbing from the burns remained on Braxton's face for approximately three weeks after his discharge from the hospital. He suffered from skin thickening on his eyebrow and right cheek, and even after some scars disappeared, the area of burns would still appear as red spots on his face whenever he got hot.

Appellant lied about his actions to Siebert, took actions to conceal the harm to the child, and failed to take action to secure appropriate care for the child. The jury could have concluded that appellant's rubbing a substance known to cause skin irritation on the face of a toddler where Superglue had already adhered would cause, at the very least, the impairment of physical condition or a visible mark associated with the physical trauma. See LaFort v. State, 98 Ark.App. 202, 205, 254 S.W.3d 27, 29–30 (2007). Accordingly, sufficient evidence supports appellant's convictions, and the trial court did not err in refusing to direct the verdicts.

Nor did the court err in refusing appellant's request for a continuance to obtain new counsel. In his first point of error, appellant claims that he was denied his counsel of choice. The information against appellant was filed on March 16, 2007...