FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63CR-16-303]
HONORABLE GARY ARNOLD, JUDGE
Standridge, for appellant.
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
WAYMOND M. BROWN, JUDGE.
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
altercation of some sort occurred between George Charles
Hutcheson 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
On 4/9/2016 at 8:14 am I responded to 708 W. Cross in
reference to a disturbance (See incident 2016-02025). While
investigating that disturbance I observed swelling, redness,
and bruising to the left eye of George Hutcheson. Mr.
Hutcheson stated he was struck in the face by a beer bottle
on 4/5/2016 by Steven Wheeler, who lives with Mr. Hutcheson.
He stated that Mr. Wheeler just got angry and hit him with
the beer bottle. Bruce Brotherton, who also lives at the
residence, stated that he saw Mr. Wheeler hit Mr. Hutcheson
in the face with the beer bottle.
I attempted to ask Mr. Wheeler about the incident. However,
he became angry after being read his [M]iranda rights and
would not talk to me.
second information was filed on August 31, 2016, asserting
that appellant was a habitual offender pursuant to Arkansas
Code Annotated section 5-4-501. 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. A trial on the matter was held on
September 9, 2016.
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.
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.
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; he had drunk half a twelve-pack
of beer and appellant was drinking beer and a "fifth of
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.
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]."
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
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
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
[Hutcheson] drinks out of the bottle of whiskey, and I had a
bottle on the table and they was [sic] arguing about
something and next thing I know, me and [Hutcheson] got in a
struggle, and the next thing I know I grabbed something, I
know I grabbed something, and I swung it and we got into a
little tussle. . . . [Hutcheson] fell over and hit the
ground. I picked him up and noticed I had hit him.
. . . .
Mr. Hutcheson grabbed me and something like that and after he
grabbed me I probably pushed him around a little bit and then
he cut me down this left side of my arm.
. . . .
I remember getting into a rage. I think I grabbed something
and hit him. That was after I had been cut. I didn't even
know it was bleeding, until we was [sic] on our way to Hot
Springs. I didn't see a knife. . . . That was in reaction
for what he had done to me.
. . . .
I had no alternative but to lash out at Mr. Hutcheson after I
had been cut with a knife. I felt like that ...