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Austin v. State

Court of Appeals of Arkansas, Division I

April 6, 2016

BOBBY WAYNE AUSTIN, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

          APPEAL FROM THE ARKANSAS COUNTY CIRCUIT COURT, NORTHERN DISTRICT. NO. CR-2014-123. HONORABLE DAVID G. HENRY, JUDGE.

         Brett David Watson, for appellant.

         Att'y Gen., Adam Donner Jackson, David Robert Raupp, for appellee.

         DAVID M. GLOVER, Judge. KINARD and HOOFMAN, JJ., agree.

          OPINION

Page 556

          DAVID M. GLOVER, Judge

         Bobby Austin was convicted of second-degree battery by an Arkansas County jury, sentenced as a habitual offender to fifteen years in the Arkansas Department of Correction, and fined $10,000. Austin now appeals, arguing that the trial court erred in allowing the State to introduce two misdemeanor convictions not involving dishonesty or false statement for impeachment purposes during his testimony. We find merit in Austin's argument and reverse and remand.

         Facts

         The pertinent facts of this case hinge on different versions of the incident as told by Austin and Adam Bevell, the victim. On November 4, 2014, Austin and Bevell were both in a park in Humphrey, Arkansas. Bevell testified he was picking up pecans when Austin and two other men approached him; he " knew of" Austin but the two men were not friends. According to Bevell, Austin walked up to Bevell, hit him on the right side of his face with a metal object that was " wrapped up" in Austin's hand, did not say anything to him after he had hit him, and then handed the object in his hand to Cole Winfrey, one of the other men with Austin. Bevell explained he had to undergo surgery on his eye and his jaw after Austin had hit him; he still has no feeling on that side of his face; and he still has pain from the incident. Bevell denied he had agreed to give Austin a ride, asserting that he did not " run" with that crowd. Bevell said he would not have given Austin and Winfrey a ride if they had asked him for one. He stated he had no idea why Austin attacked him.

         Austin testified on his own behalf, stating that he had known Bevell all his life; they had always been friends; on the day of the incident, Bevell had agreed to take Austin to Stuttgart after Bevell took his mother home; and Bevell had given him rides on other occasions. Austin said when Bevell returned to the park, Cole Winfrey and two black guys were also at the park. According to Austin, he told Bevell he was going to get in the car; he then got into the front passenger-side seat of Bevell's car; he saw Cole Winfrey bullying Bevell about letting him have a ride, too; Bevell was not okay with giving Winfrey a ride and pulled a knife out and moved toward the car; Bevell opened the car door still holding the knife; Bevell told

Page 557

Austin that he had to get out; and Bevell grabbed Austin. Austin testified that Bevell did not calmly ask him to get out; rather he grabbed him and told him he needed to get out immediately. Austin said he got scared and reacted by hitting Bevell, but denied that he had anything in his hand when he hit Bevell. Austin stated he hit Bevell because he was afraid for his life and was afraid Bevell would stab him. No other person who witnessed the altercation testified at trial.

         The issue on appeal concerns the State's questioning of Austin on cross-examination regarding previous misdemeanor convictions. During Austin's testimony on direct examination in his case-in-chief, the following colloquy occurred:

Defense Counsel: Bobby, something that--something that I told this jury at the very first part of the trial, I told them that you have been in some trouble before, haven't you?
Appellant: Yes, sir.
Defense Counsel: You've--you've got some convictions on your ...

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