FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-14-617]
HONORABLE JOHN HOMER WRIGHT, JUDGE
Buckley, McLemore & Hudson, P.A., by: Grace Casteel, for
Rutledge, Att'y Gen., by: Amanda Jegley, Ass't
Att'y Gen., for appellee.
Deion Johnson brings this appeal from his convictions for
unlawful discharge of a firearm from a motor vehicle and
battery. On appeal, Johnson contends
that sufficient evidence did not support his two convictions.
We disagree and affirm.
case stems from Johnson shooting Tracy Samuels three times. A
month or so before this incident, Johnson had taken
Samuels's dog from his yard because he wanted to keep it
for himself. A few days later, Samuels approached Johnson and
got his dog back amicably. Between that day and the day of
the shooting, Johnson and Samuels did not have any contact.
day of the shooting, Johnson and his girlfriend drove to
Samuels's home. Upset that his dog had miscarried puppies
after having been in Johnson's care, Samuels began to
approach Johnson's car. The two exchanged a couple of
obscenities, and Samuels began to retreat to his home until
Johnson said, "We could handle this right now."
Samuels turned around from the door toward the street and
approached the vehicle. Johnson then opened his door and
fired a gun from his vehicle. Samuels testified that Johnson
shot him in the head, neck, and chest. Knowing that his
arrest was imminent, Johnson then sped off and fled from
officers, but the officers eventually apprehended him.
jury found Johnson guilty of unlawful discharge of a firearm
from a vehicle in the first degree, battery in the first
degree, and fleeing. Johnson timely appealed his convictions
of unlawful discharge of a firearm and battery in the first
degree, alleging that the State did not put forth sufficient
proof that the victim had sustained serious physical
appeal, a motion for directed verdict is treated as a
challenge to the sufficiency of the evidence. See
Reynolds v. State, 2016 Ark. 214, at 3, 492 S.W.3d 491,
494. This court views the evidence in the light most
favorable to the State and affirms if there is substantial
evidence to support the verdict. Id. Substantial
evidence is that which is of sufficient force and character
that it will, with reasonable certainty, compel a conclusion
one way or the other, without resorting to speculation or
conjecture. Id. This court does not weigh the
evidence presented at trial or assess the credibility of the
witnesses, as those are matters for the fact-finder.
Id. The trier of fact is free to believe all or part
of any witness's testimony and may resolve questions of
conflicting testimony and inconsistent evidence. Id.
discharge of a firearm from a vehicle in the first degree, as
charged in this case, is to knowingly discharge a firearm
from a vehicle and by the discharge of the firearm causes
death or serious physical injury to another person. Ark. Code
Ann. § 5-74-107 (Repl. 2016). First-degree battery, also
as charged in this case, is to knowingly cause serious
physical injury to any person by means of a deadly weapon.
Ark. Code Ann. § 5-13-201 (Repl. 2013).
required by both of the above definitions, a serious physical
injury is defined as a "physical injury that creates a
substantial risk of death or that causes protracted
disfigurement, protracted impairment of health, or loss or
protracted impairment of the function of any bodily member or
organ." Ark. Code Ann. § 5-1-102(21). Whether a
person has suffered serious physical injury is ordinarily an
issue for the trier of fact. Williamson, 2011
Ark.App. 73, at 3-4, 381 S.W.3d at 137; Bangs v.
State, 338 Ark. 515, 998 S.W.2d 738 (1999). It is not
necessary that the impairment be permanent, but only
protracted. See Bell v. State, 99 Ark.App. 300, 259
S.W.3d 472 (2007). And the fact that the victim ultimately
recovers has no bearing on whether the injury sustained is
serious. Brown v. State, 347 Ark. 308, 65 S.W.3d 394
(2001). Moreover, expert medical testimony is not required to
prove serious physical injury, as the finder of fact may use
its common knowledge to determine whether such injury
occurred. See Hughes v. State, 2015 Ark.App. 378, at
8, 467 S.W.3d 170, 175; see also Johnson v. State,
26 Ark.App. 286, 764 S.W.2d 621 (1989) (the court held that
although no medical testimony was presented describing
technical aspects of police officer's injury, nonmedical
testimony was sufficient to demonstrate that police officer
victim had incurred serious physical injury within meaning of
first-degree battery statute).
argues that the State did not provide sufficient evidence to
prove the shared element of serious physical injury. We
testified that he had sustained three gunshot wounds. He
stated that one bullet hit his diaphragm, his liver, and his
intestines, and that he lost a kidney as a result of the
gunshot wounds. He testified that medical staff at the
hospital had cut his chest open and packed it with gauze in
an effort to stop his liver from bleeding. He also testified
that medical personnel cut part of his intestines, removed
pieces of his kidney, deflated his lungs, and sewed his
diaphragm back together. Samuels spent multiple days at the
hospital. He testified that he ...