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Wimbley v. State

Court of Appeals of Arkansas, Division IV

June 18, 2014

SONGA WIMBLEY, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT. NO. CR-12-544. HONORABLE BERLIN C. JONES, JUDGE.

Potts Law Office, bye: Gary W. Potts, for appellant.

Dustin McDaniel, Att'y Gen., by: Ashley Argo Priest, Ass't Att'y Gen., for appellee.

PHILLIP T. WHITEAKER, Judge. GLOVER and GRUBER, JJ., agree.

OPINION

Page 133

PHILLIP T. WHITEAKER, Judge

Appellant Songa Wimbley appeals a Jefferson County Circuit court conviction of second-degree battery, contending that the State failed to prove that a deadly weapon was used in the commission of the offense. Because we find that the bat used by Wimbley's accomplice constitutes a deadly weapon, we affirm.

On July 8, 2012, Yuwanda Pitts Johnson was working at the Ramada Inn in Pine Bluff when she became involved in an altercation with Songa Wimbley; Wimbley's sister, Stacy Dilworth-Wimbley; and a third woman. The altercation occurred because Johnson and Dilworth-Wimbley were at odds over Dilworth-Wimbley's boyfriend, who was the father of Johnson's children. The incident began in the laundry room when Johnson was approached by Wimbley. According to witnesses for the State, Wimbley stated to Johnson, " We are not going to even talk anymore about it. I'm fixing to stun you with the stun gun." When Wimbley started to approach her with the stun gun, Johnson threw chemicals at her. At this point, Wimbley ran from the laundry room, and Johnson went to the lobby.

Johnson and another employee then attempted to close the front doors to the hotel. While they were trying to close the doors, Wimbley returned with Dilworth-Wimbley and began kicking the doors, trying to enter. During the altercation, Wimbley possessed a stun gun and Dilworth-Wimbley possessed a bas ball bat. Dilworth-Wimbley swung the bat and struck Johnson in the hand, fracturing it. Wimbley also shocked Johnson on her hand with the stun gun, and tried to use the stun gun on her neck, but was unsuccessful. Johnson did not receive any injuries to her neck from the stun gun, but could feel the vibration of the gun as it was aimed at her head. Wimbley denied having a stun gun and insisted that she never touched Johnson. She stated that she never saw anyone stun Johnson or hit her with a bat.

The jury was instructed on the elements of the offense as well as on accomplice liability. The verdict form submitted to the jury did not differentiate between the types of culpability. The jury returned a verdict of guilty to second-degree battery.

Wimbley appeals her conviction, arguing that the trial court erred in denying her motions for a directed verdict on the basis that there was no proof that the items used in the altercation (the bat and the stun gun) were deadly weapons for purposes of the second-degree battery statute.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Farrelly v. State, 70 Ark.App. 158, 15 S.W.3d 699 (2000). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, which is evidence of such certainty and precision to compel a conclusion one way or another. Id. We review the evidence in the light most favorable to the appellee, considering only the testimony that tends to support the verdict. Id.

Page 134

A person commits battery in the second degree 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. ยง 5-13-202(a)(2) (Supp. 2011). Arkansas ...


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