Opinion
CACR08-138
June 18, 2008
An Appeal from Pulaski County Circuit Court [Cr2007-1130], Hon. Willard Proctor, jr., Judge, Affirmed.
Curtistine Handy challenges the sufficiency of the evidence supporting her conviction as a habitual offender for second-degree battery. We hold that appellant's challenge to the proof regarding the purpose to cause physical injury is not preserved for appellate review because she did not challenge that element of proof at trial. Further, we affirm appellant's conviction regarding the portion of her argument that is based on the trial court's resolution of conflicting testimony and its witness credibility findings.
This cases involves a classic "he said, she said" scenario. The State alleged that appellant purposefully struck DeWayne Jones with her vehicle. During appellant's bench trial, Jones testified that appellant, whom he identified as "Cookie," was a friend of his former girlfriend. However, he said that he did not know appellant and had never talked to her. According to Jones, the incident occurred as he was walking home at approximately 1:00 a.m. on February 27, 2007. He said that appellant drove toward him, then stopped her car and began cursing at him because he "put out" her friend. After Jones retorted, appellant made a U-turn and accelerated toward him. Jones heard the car approaching "at full speed" and turned around in time to jump onto the curb. He said that appellant's vehicle hit the curb, struck him and knocked him into a ditch, and that appellant thereafter got out of her vehicle and continued cursing him. When Jones managed to get to his feet, appellant returned to her car, drove to her nearby house, and parked her car. He said that after she parked her car, she continued to make threats against him as he was "limping home."
Jones suffered bruises to his left leg from the top of his ankle to the bottom of his knee. He said that he was required to use crutches for approximately three or four weeks. He also bruised his arm, which hit the windshield as he raised his arm to protect his face. Although Jones insisted that he fractured his leg, he walked three blocks to his home and telephoned the police.
Officer Chad O'Kelley, of the Little Rock Police Department, responded to the call. O'Kelley personally observed Jones's arm and leg injuries. He described Jones's leg as "pretty banged up, bruised up." Additionally, photos of Jones's injuries were admitted, without objection, depicting injuries consistent with O'Kelley's description.
O'Kelley testified that Jones told him "that a lady named Cookie that lived around the corner from him struck him with a vehicle" and "that it had something to do with his ex-girlfriend being kicked out of his house." O'Kelley further stated that Jones told him that after appellant struck him, she told him, "I should have killed you." When O'Kelley went to appellant's home, she refused to come out for twenty minutes. When she did, she was arrested for second-degree battery.
Appellant offered a dramatically different version of events. She said that she knew Jones through his former girlfriend because he had twice asked her to have sex with him. She said that Jones lied when he said that he did not know her and had not spoken to her. According to appellant, as she drove past Jones, he threw a brick at her windshield, which caused her windshield to shatter. She responded, in essence, that Jones was angry because she would not have sex with him. Further, appellant insisted that she telephoned the police. She explained that the reason she did not come out when O'Kelley requested was because the police had already responded to her call and she had already given them her information.
Chester Lee Thornton, who lived in the same neighborhood, testified on appellant's behalf. Thornton said that on the night of the incident, at approximately 9:00 p.m. or 10:00 p.m., he saw Jones walk along the street and look around the corner in the direction of appellant's house "several times."
At the close of the State's case, appellant moved for dismissal. The trial court denied the motion and the subsequent renewal of that motion. The State presented proof of appellant's prior convictions that is not challenged on appeal. The trial judge found appellant guilty as a habitual offender and sentenced her to serve six years in the Arkansas Department of Correction.
Appellant's sole argument is a challenge to the sufficiency of the evidence. A motion to dismiss in a bench trial is identical to a motion for a directed verdict in a jury trial in that it is a challenge to the sufficiency of the evidence. See Springs v. State, 368 Ark. 256, 244 S.W.3d 683 (2006). In reviewing the sufficiency of the evidence, the test is whether the verdict is supported by substantial evidence, direct or circumstantial. See Thomas v. State, 92 Ark. App. 425, 214 S.W.3d 863 (2005). Id. Substantial evidence is that evidence that is of sufficient force and character to compel a conclusion one way or the other beyond suspicion or conjecture. Id. Circumstantial evidence may constitute substantial evidence, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Id. We consider only the evidence supporting the guilty verdict and the evidence is viewed in the light most favorable to the State. Id. Determinations of credibility are left to the trier-of-fact. Id.
A person commits second-degree battery if, with the purpose of causing physical injury to another person, the person causes physical injury to any person by means of a deadly weapon other than a firearm. Ark. Code Ann. § 5-13-202(a)(2) (Supp. 2007). A "deadly weapon" includes anything that in the manner of its use or intended use is capable of causing death or serious physical injury. Ark. Code Ann. § 5-1-102(4)(B) (Supp. 2007). "Physical injury" includes the impairment of the physical condition, the infliction of substantial pain, or the infliction of bruising, swelling, or visible marks associated with physical trauma. See Ark. Code Ann. § 5-1-102(14).
A criminal defendant's intent or state of mind is rarely capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. See Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000). Thus, the jury is allowed to draw upon its common knowledge and experience to infer intent from the circumstances. See Jones v. State, 72 Ark. App. 271, 35 S.W.3d 345 (2000). A person acts purposely with respect to his or her conduct or a result of his or her conduct when it is the person's conscious object to engage in conduct of that nature or to cause the result. Ark. Code Ann. § 5-2-202(1) (Repl. 2006).
Appellant below raised the following motion to dismiss:
At this time, I would like to move for dismissal on Ms. Handy's behalf. The alleged victim tells all kind of conflicting stories. He is an obvious embellisher. He speaks of a leg shattered, of being paralyzed and yet, he is able to walk just fine. There is no evidence of a shattered leg or even a broken leg. We have a bruised leg. I suspect there is a motive for him to embellish and yet, I still think that the court could find a directed verdict without evidence of his motives.
(Emphasis added.)
She renewed her motion as follows: "I don't believe the State has met its burden of proof. It's not proven that Ms. Handy committed battery in the second degree beyond a reasonable doubt and as far as I can tell, this is nothing more than conflicting stories of shattered legs and shattered windows." (Emphasis added.) Now, on appeal, appellant's argument, in full, is as follows:
Appellant asks this Court to consider whether the evidence submitted supports t[h]e finding that Appellant struck Mr. Jones with a purpose to cause injury. It is not unreasonable to believe that, if Appellant's testimony was truthful, that any driving up on the curb was a direct result of Appellant's windshield being struck by a brick and shattered.
(Emphasis added.)
We hold that appellant failed to preserve her challenge to the proof that she struck Jones with the purpose to cause him physical injury because she did not challenge the State's proof regarding that element of the second-degree battery statute at trial. Rather, she challenged Jones's credibility by alluding to alleged inconsistencies in his testimony. It is well-settled that a party cannot challenge the sufficiency of the evidence supporting a conviction on a ground that was not presented to the trial court. Ark. R. Crim. P. 33.1(b) and (c); Phillips v. State, 361 Ark. 1, 203 S.W.3d 630 (2005). Thus, a party is confined to the scope and nature of the arguments presented to the trial court. See Thomas, supra. Accordingly, we do not reach the merits of appellant's sufficiency challenge based on the "purpose" element of the second-degree battery statute.
Moreover, we affirm appellant's conviction based on the portion of her sufficiency argument that is preserved. Appellant challenges the trial court's resolution of conflicting testimony and its credibility findings. She maintains that if her testimony was truthful, the trier-of-fact could have reasonably found that she struck Jones accidentally, because her windshield shattered when Jones hit it with a brick. Hence, appellant asks this court to examine the evidence as if the trial court had determined that her testimony was credible, which we cannot do, as the trial court here obviously gave no credence to her testimony. When we review a challenge to the sufficiency of the evidence to support a criminal conviction, we will not second-guess credibility determinations made by the fact-finder. See Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002).
As appellant has abandoned any argument that she struck Jones with her car, and as she conceded below that he suffered bruises, the testimony of Jones and Officer O'Kelley constituted substantial evidence to support that appellant, with the purpose of causing physical injury to Jones, struck him with her car. That constitutes sufficient proof to support appellant's conviction for second-degree battery.
Affirmed.
Glover and Heffley, JJ., agree.