Shells v. State, CA

• Citation: 22 Ark.App. 62,733 S.W.2d 743
• Decision Date: 22 July 1987
• Docket Number: No. CA,CA
• Parties: Terry Lynn SHELLS, Appellant, v. STATE of Arkansas, Appellee. CR 87-27.
• Court: Court of Appeals of Arkansas

Page 743

733 S.W.2d 743

22 Ark.App. 62

Terry Lynn SHELLS, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 87-27.

Court of Appeals of Arkansas Division I.

July 22, 1987.

Thomas E. Brown, Pine Bluff, for appellant.

Steve Clark, Atty. Gen. by William F. Knight, Asst. Atty. Gen., Little Rock, for appellee.

COOPER, Judge.

The appellant in this criminal case was charged with criminal use of a prohibited weapon and battery in the second degree, violations of Ark.Stat.Ann. §§ 41-3104 (Repl.1977) and 41-1602 (Supp.1985). In an amended information it was alleged that the appellant had been found guilty of two or more previous felonies and should be punished under the provisions of the Habitual Offender Act, Ark.Stat.Ann. § 41-1001 et seq. (Supp.1985). After a jury trial, the appellant was found guilty of both offenses and, after the jury was informed of his prior felony convictions, he was sentenced to twelve years in the Arkansas Department of Correction on each count. The trial court ordered that these sentences were to be served consecutive to each other, and consecutive to the sentence the appellant is presently serving. From that decision, comes this appeal.

For reversal, the appellant contends that the evidence was insufficient to support a finding of guilt on either charge; that the trial court erred in allowing the appellant's prior felony convictions to be admitted into evidence because the appellant was not notified of the amended information; that the trial court erred in admitting four prior felony convictions into evidence when the amended information alleged only two or more felony convictions; and that the trial court erred in admitting evidence of previous convictions other than by certified copies of those convictions or a certificate of a chief officer of the penal institution where the appellant was incarcerated. We reverse in part and affirm in part.

Pursuant to Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), we first consider the sufficiency of the evidence to support the appellant's convictions. In so doing we review the evidence in the light most favorable to the appellee and affirm if the verdict is supported by substantial evidence. Lair v. State, 19 Ark.App. 172, 718 S.W.2d 467 (1986). Substantial evidence is evidence which induces the mind to go beyond mere suspicion or conjecture, and is of sufficient force or character to compel a conclusion one way or the other with reasonable certainty. Dillard v. State, 20 Ark.App. 35, 723 S.W.2d 373 (1987).

The evidence reflects that Lieutenant Coleman, an employee of the Arkansas Department of Correction, observed a number of inmates entering the barracks for lunch. He testified that he saw the appellant move to his left, and then Lieutenant Coleman went outside to investigate. He then saw the appellant standing approximately fifteen feet from another inmate, Vaulah Shaw. Coleman spoke to the appellant, and noticed an icepick-like object called a shank lying on the ground. Coleman also stated that he saw what appeared to be blood on Vaulah Shaw's shirt. The incident was further investigated by Sergeant J.W. Hale of the Arkansas State Police, who testified that he interviewed the appellant. Hale stated that the appellant told him that he made the shank by rubbing part of a broom handle on a concrete floor to sharpen it, and that he had possessed the weapon for three or four months. Hale further stated that the appellant told him that he planned to stab three different inmates, and that Vaulah Shaw just happened to be nearby. There was also testimony that the appellant told Hale that he had requested to be transferred to another unit of the Department of Correction; when his request for transfer was refused, he decided to force the department to transfer him by creating a disturbance at every opportunity. Marvin Evans, assistant warden of the Tucker Maximum Security Unit where the appellant was incarcerated at the time of the incident, stated that the appellant had made numerous requests for transfer to another unit or penitentiary. Evans also stated that he received a letter from the appellant telling him that he had picked out three different inmates to assault, and that Vaulah Shaw was just the closest to him at the time.

Arkansas Statutes Annotated § 41-1602(1)(b) provides that a person commits battery in the second degree if "with the purpose of causing physical injury to another person, he causes physical injury to any person by means of a deadly weapon." "Physical injury" is defined as "the impairment of physical condition or the infliction of substantial pain." Ark.Stat.Ann. § 41-115(14) (Repl.1977). The only evidence of physical injury in the case at bar is Lieutenant Coleman's testimony that he saw what appeared to be blood on Vaulah Shaw's shirt. Shaw was called as a witness, but refused to testify. No evidence of any physical impairment to Shaw as a result of the assault appears in the record. In the absence of evidence regarding the severity of the attack, the extent of Shaw's wound, or that the injury was to an area that is especially sensitive to pain, we hold that the evidence was insufficient to support a conviction for battery in the second degree. Lair v. State, supra; Holmes v. State, 15 Ark.App. 163, 690 S.W.2d 738 (1985).

With respect to the appellant's conviction for criminal use of a prohibited weapon, Ark.Stat.Ann. § 41-3104(1) (Repl.1977) provides that a person commits that offense if he possesses, makes, or otherwise deals in an implement for the infliction of serious physical injury or death which serves no common lawful purpose. The appellant cites Bryant v. State, 16 Ark.App. 45, 696 S.W.2d 773 (1985), for the proposition that a conviction cannot be based upon an extrajudicial confession unless that confession is corroborated, and argues that the requisite corroboration was lacking in the case at bar. We disagree. Although the confession of a defendant must be accompanied by other proof that the offense was committed, Ark.Stat.Ann. § 43-2115 (Repl.1977), the statutory requirement of corroboration is satisfied by proof that the crime was committed by someone. Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986). There was testimony at trial to show that others had seen the shank, that it was an object similar to an icepick, and that it had been found near the appellant soon after the incident occurred. We think this...