Wheeler v. State
| Decision Date | 18 October 2017 |
| Docket Number | No. CR–17–15,CR–17–15 |
| Citation | 532 S.W.3d 602 |
| Parties | Steven Wayne WHEELER, Appellant v. STATE of Arkansas, Appellee |
| Court | Arkansas Court of Appeals |
Dusti Standridge, for appellant.
Leslie Rutledge, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.
Appellant appeals from his convictions of battery in the second degree, a Class D felony; and domestic battering in the third degree, a Class D felony. On appeal, he argues that there was insufficient evidence to support either conviction. We affirm.
An altercation of some sort occurred between George Charles Hutcheson1 and appellant—the details of which are disputed—on April 5, 2016. During the altercation, appellant hit Hutcheson in the face with a glass beer bottle. Appellant was charged by criminal information, filed May 19, 2016, with battery in the second degree pursuant to Arkansas Code Annotated section 5–13–202, alleging that he "did unlawfully and feloniously on or about April 5, 2016 strike his 66 year old roommate with a glass bottle in the face causing physical injury." The incident report from Officer Seth Hopkins, attached to the information, states that:
A second information was filed on August 31, 2016, asserting that appellant was a habitual offender pursuant to Arkansas Code Annotated section 5–4–501.2 Finally, an amended information was filed on September 1, 2016, adding a charge of domestic battering in the third degree pursuant to Arkansas Code Annotated section 5–26–305.3 A trial on the matter was held on September 9, 2016.
At the opening of the hearing, the circuit court noted that appellant had a probation revocation, case number 2015–468, and a trial, case number 2016–303, set for the day. Appellee notified the circuit court that the battery charges were alternative charges in which it sought to prove appellant's guilt on one charge or the other.
Hutcheson testified that he was sixty-six years old and had lived as 708 West Cross Street in Benton for about nine years; his brother, Mitchell Hutcheson, lived with him. Regarding appellant's living arrangement in the home, he testified:
Mr. Wheeler came in and out of my house. He never did stay, stayed a night or two and gone. Oh, something like that and leave and the next thing you know, when he left, he would come back for his clothes. It might have been a little bit further than April of this year. He wasn't staying there on April 5th of this year. He was there, never did tell him he could stay there. He paid me $20. No, he didn't give me that when he stayed there. He just give me twenty dollars for the time he was there. I don't really count that for anything. I'm renting my home. He isn't on the lease. No, just paying rent. No, he wasn't there as a guest. He didn't come and go as he pleased; not really. I didn't ever want him there to start with. He was never invited to stay.
Regarding the incident giving rise to the charge, Hutcheson testified that he was sitting in the kitchen talking when appellant "hit [him] in the eye with a beer bottle"; he said "it hit [his] eye all the way around[.]" He denied that he and appellant were fighting or that he started an argument with appellant; he said they were just sitting there talking. Both he and appellant were "drinking a little at the time," noting that he and the other two residents were drinking a beer;4 he had drunk half a twelve-pack of beer and appellant was drinking beer and a "fifth of whiskey."
Brotherton testified that appellant came to visit the home at 708 West Cross Street and "came and went as he pleased" though "[n]obody told him he [sic] come and go, [he meant], he just come when he felt like it." He said appellant had access to the house "any time day or night" and was spending the night at the house on the date of the altercation. Regarding the altercation, he testified that "[n]othing unusual happened on April 5th, other than the fact that [appellant] and Mr. Hutcheson got to drinking, they got into a heated argument and the more whiskey Mr. Wheeler drank than [sic] the more it got him, and then he picked up a bottle of beer out of the sink and hit Mr. Hutcheson in the left eye, and it was over about as quick as it started." He said that "they [sic] was words said, the more they said the more Mr. Wheeler drank the madder he got and he picked up a bottle of beer and hit Mr. Hutcheson in the left eye." He did not see Hutcheson make "any kind of aggressive move toward Mr. Wheeler or threaten him." He had "no idea what was going on" or "what was being said" to cause the altercation as he "didn't try to put his nose in their business." Mitchell was living there and was also in the house during the altercation.
Mitchell testified that appellant hit him as well during the altercation, "crack[ing] him on [his] cheek bone." He denied that there was "any arguing going on or a heat [sic] discussion" before appellant hit Hutcheson. Mitchell did not "think his brother [Hutcheson] did anything that provoked" appellant and had "never seen [Hutcheson] strike [appellant]."
Officer Seth Hopkins testified to responding to a call to the residence on April 9, 2016. Hutcheson told him that being struck by appellant "caused the small amount of blood, the fresh blood, not the large swelling to his mouth." He stated that he observed the injury, including other swelling to his face, and "could tell it was a bit older cause it was kind of yellowish." He stated that you could tell that Hutcheson "had been hit with something because his face was pretty swollen." Hopkins visited with appellant who was Mirandized and would not speak to him.5
Following Hopkins's testimony, appellant moved for a directed verdict on multiple grounds. The motion was denied on all grounds with the exception of whether appellee proved that appellant knew Hutcheson's age, an element under one variation of domestic battering in the second degree. The circuit court chose not to rule on that motion stating that it needed to do some research on what it meant for appellant to know that Hutcheson was sixty years old or more.6
Appellant then testified. He stated that he had just gotten out of jail when he arrived at Hutcheson's home. He confirmed that he, Hutcheson, and Mitchell were drinking. He stated that Hutcheson was "as drunk as [him]" and would be "arguing about everything" and that the argument was "mainly, about [appellant], about kicking [appellant] out." Regarding the altercation, he testified:
Regarding his living situation in the home, he testified that he was homeless and living on the street, but "they were telling [him] to come by and stay the night." He stated that "[s]ometimes [he] would stay a week, sometimes a couple of days"; "just kind of off and on." He agreed that he was "attempting to stay and live [in the house] and they were trying to kick him out." Finally, he testified that he pled guilty to domestic battery in the third degree for attacking Mitchell on April 9, 2016; had two prior domestic-battery convictions; pled guilty to domestic battery in the second degree in November 2011; and identified three other felonies of which he had been convicted.
Following his testimony, appellant renewed his motion for directed verdict. The circuit court granted the motion on the charge of domestic battery in the second degree, but only on the element that appellant knew Hutcheson's age when he physically injured him. The motion was denied on all other bases.
Though the circuit court initially stated "that [the charges] are not lesser included, that he can't be convicted of both," the circuit court and the parties agreed after further discussion that appellant could be convicted of both charges though he could only be sentenced on only one charge. Accordingly, the circuit court found appellant guilty of both charges.7 At the conclusion of the sentencing hearing, the circuit court sentenced appellant to 120 months' incarceration in the Arkansas Department of Correction in his revocation case and in his trial, but ordered the sentences to run concurrently.8 This timely appeal followed.
Although appellant moved for a directed verdict, such a motion at a bench trial is a motion for dismissal.9 A motion to dismiss at...
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