FROM THE BAXTER COUNTY CIRCUIT COURT [NO. 03CR-16-315]
HONORABLE JOHN R. PUTMAN, JUDGE
Law Office, by: Gary W. Potts, for appellant.
Rutledge, Att'y Gen., by: Rachel Kemp, Ass't
Att'y Gen., for appellee.
BRANDON J. HARRISON, JUDGE
Snow appeals his convictions for first-degree battery and
first-degree endangering the welfare of a child. He argues
that his convictions relied solely on circumstantial evidence
and that the jury was forced to rely on speculation and
conjecture. We reverse and dismiss the battery conviction but
affirm the endangering-the-welfare-of-a-child conviction.
September 2016, Snow was charged with battery in the first
degree and endangering the welfare of a minor in the first
degree. The State alleged that Snow had abused his
three-week-old infant, causing bruises, a broken clavicle,
severe brain injuries, and seizures. Alyssia Kirby, the
baby's mother, was also separately charged. At a jury
trial in October 2017, Officer Jay Volkman with the Mountain
Home Police Department testified that on 23 February 2016, he
received a report from the child-abuse hotline via the
Arkansas State Police Crimes Against Children Division.
Volkman testified that he and Special Agent Becky Vacco
questioned Snow and Kirby at their apartment on February 25.
According to Volkman, Snow said he did not know how the
injuries had happened, but Kirby did provide an explanation
for how the injuries had happened. But after a hearsay
objection, Volkman was not permitted to repeat what Kirby had
said. Volkman also said that Kirby provided an explanation
for the bruising on the baby's face, but he did not say
what that explanation was. Snow told Volkman that the baby
had begun having "fits" and that he did not realize
that the baby was having seizures. Snow voluntarily showed
Volkman videos that he had taken on his cell phone of the
baby having several so-called "fits" and explained
that he made the videos to later show to the doctor. Snow
said he did not take the baby to the emergency room because
he did not think it was serious and the baby did not have a
fever. According to Snow, the baby had started having these
"fits" on Saturday, February 20. Snow also stated
that he and Kirby were the only people who had taken care of
the baby since his birth, and he denied that either he or
Kirby had hurt the baby.
cross-examination, Volkman agreed that Kirby had spoken
during the interviews much more than Snow and that Kirby had
never indicated that Snow might have caused the injuries.
Volkman also said that in addition to making the videos of
the baby to show to the doctor at a later point, Snow also
spoke to a friend about what he should do. Volkman
acknowledged that Kirby had been charged as well and that it
was a "possibility" that Snow had not committed the
crimes. Volkman also testified that Kirby is ten years older
than Snow, that she has five children, and that one of those
children is in the custody of an aunt because of a drug
Agent Vacco with the Arkansas State Police testified that
"they," meaning Snow and Kirby, had no explanation
for the broken clavicle, said that a seat-belt latch had
fallen onto the baby's cheek and caused the bruise, and
said that another child had dropped the baby on the bed. Snow
also showed Vacco the recordings of the baby's seizures
and consented to a search of his phone. On cross-examination,
Vacco clarified that Kirby had done the majority of the
talking and that she (Kirby) had provided the explanation
about the seat-belt latch falling onto the baby's cheek.
Vacco agreed that Snow had given no explanations for any of
the injuries. She also agreed that both Snow and Kirby were
charged in the matter and that, in her opinion, they were
both responsible for the injuries.
Michael Adkins testified that he was the baby's attending
physician after delivery (the baby was born on 27 January
2016). Dr. Adkins saw the baby when he was eight days old, on
February 4, and he had no acute issues. On February 22, Kirby
presented the baby for treatment, stating that he had
jaundice and had not been eating well. Kirby did not mention
any fits, bruising, respiratory problems, or other injuries.
Dr. Adkins stated that when he saw the baby, he saw
"essentially, a lifeless infant." Dr. Adkins
testified that the baby had bruises on his head and around
his eye and was in distress. Dr. Adkins examined the baby and
noticed him "tremoring and likely seizing," so the
doctor called an ambulance and the police. When Dr. Adkins
asked Kirby about the injuries, she reported that the baby
had been hit by a seat-belt buckle. And when asked why she
did not seek medical attention sooner, she said, "I
don't know." On cross-examination, Dr. Adkins
testified that he did not know who or what had caused the
Karen Farst testified that the baby was admitted to the
pediatric intensive care unit at Arkansas Children's
Hospital on 23 February 2016. She testified that the baby was
in a "life-threatening and very critical condition"
when he was admitted. She said that he had bruising on his
face and appeared to be seizing. The baby was also dehydrated
and was put on a breathing machine. Dr. Farst explained that
medical testing showed that the baby had several areas of
bleeding around his brain as well as injuries to the brain
tissue. She said this type of trauma is most commonly caused
by a significant contact or impact injury. She explained that
his injuries resulted in dead brain tissue in a large part of
his brain, that he has very delayed developmental skills, and
that he has ongoing seizure problems. She could not say who
had caused the injuries or precisely how they occurred, but
she did state that if the baby had been given medical
treatment sooner, the outcome would not have been as severe.
State also called Joseph Elders, a friend of Snow's and
Kirby's, who testified that he was in their home when the
baby was around two weeks old and that he saw the baby
experience what looked like a seizure and specifically saw
the baby's eyes "shaking back and forth." He
said that he told Kirby that it looked like a seizure, but
she said that "all of her newborn babies did that
because their eyes are just adjusting to the light."
Elders said that Snow was not in the room when he and Kirby
had this conversation.
State also played excerpts from the videos taken on
Snow's phone; in the videos, Snow repeatedly expressed
concern over the baby's behavior and said that he had
arranged for a friend to take them to the hospital if needed.
At the close of the State's case, Snow moved for a
directed verdict. On the battery charge, he argued that the
State had failed to prove that he had caused the injuries; on
the endangering charge, he argued that the State had failed
to show that he had acted purposely to create a substantial
risk of death or serious physical injury to a minor. The
circuit court stated that it was a close case, "but
based on circumstantial evidence I think enough has been put
forward to get past a directed verdict." The defense
rested without presenting additional evidence, and Snow
renewed his directed-verdict motion, which was again denied.
The jury found Snow guilty of both charges, and the court
sentenced him to thirty-five years for battery and six years
for endangering the welfare of a minor, to run consecutively.
He now appeals his convictions.
directed-verdict motion is a challenge to the sufficiency of
the evidence. Holland v. State, 2017 Ark.App. 49,
510 S.W.3d 311. Our test for determining the sufficiency of
the evidence is whether the verdict is supported by
substantial evidence, direct or circumstantial. Wells v.
State, 2017 Ark.App. 174, 518 S.W.3d 106. Substantial
evidence is evidence that would compel a conclusion one way
or the other with reasonable certainty, without relying on
mere speculation or conjecture. Henson v. State,
2014 Ark.App. 703, 450 S.W.3d 677. Circumstantial evidence
may constitute substantial evidence to support a conviction
if it excludes every other reasonable hypothesis other than
the guilt of the accused. Holland, supra.
Circumstantial evidence may not provide the sole basis for a
criminal conviction if it can be reconciled with the theory
that someone other than the defendant committed the crime.
Henson, supra. Two equally reasonable
conclusions as to what occurred merely give rise to a
suspicion of guilt, which is not enough to support a
conviction. Fudge v. State, 341 Ark. 759, 20 S.W.3d
315 (2000). Weighing the evidence, reconciling conflicts in
testimony, and assessing credibility are all matters
exclusively for the trier of fact. Holland,
appeal, Snow argues that his convictions relied solely on
circumstantial evidence and that there was no direct evidence
of who caused the baby's injuries. He also asserts that
"if fault is attributed to the parents, then it is more
likely that Alyssia (Kirby) Snow was the wrongdoer and not
her husband, Jonathan." He notes that he was the one who
memorialized the seizures on his phone and volunteered the
videos to investigators, while Kirby had already lost custody
of a child due to drug problems. Snow contends that the jury
was forced to rely on speculation and conjecture to ...