DONALD A. WARREN APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION [NO.
60CR-15-1681] HONORABLE LEON JOHNSON, JUDGE AFFIRMED
LUPPEN, FOR APPELLANT.
RUTLEDGE, ATT'Y GEN., BY: REBECCA KANE, ASS'T
ATT'Y GEN., FOR APPELLEE.
PHILLIP T. WHITEAKER, JUDGE
Donald Warren was convicted of one count of second-degree
battery by the Pulaski County Circuit Court. On appeal, he
contends that there was insufficient evidence to support his
conviction. We find no error and affirm.
State initially charged Warren with one count of first-degree
battery; before trial, however, the State orally moved to
amend the charge to second-degree battery. At a bench trial,
the State presented the following evidence. Warren's
mother, Shirley Campbell, was a terminally ill patient
receiving home-care services from Hospice Home Care. Ora
Lewis was a nursing assistant assigned by Hospice Home Care
to attend to Ms. Campbell's needs. On April 28, 2015, Ms.
Campbell passed away. Shortly thereafter, Lewis and her
supervisor, Sara Stewart, went to Ms. Campbell's home to
provide postmortem care. Eventually, Warren arrived at his
mother's home, whereupon he became distraught and walked
down the hallway saying, "Y'all killed my mom."
He then confronted Lewis, punching her in the face and
kicking her in the knee. At the conclusion of the State's
case, Warren moved for dismissal, which the circuit court
denied. Warren then testified on his own behalf. At the end
of the trial, the circuit court found him guilty of
second-degree battery. Warren timely appealed and now
contends that the evidence was insufficient to support the
motion to dismiss at a bench trial is identical to a motion
for directed verdict at a jury trial in that it is a
challenge to the sufficiency of the evidence. Ark. R. Crim.
P. 33.1 (2018); Jordan v. State, 2014 Ark.App. 325,
at 1. This court will affirm a circuit court's denial of
the motion if there is substantial evidence, either direct or
circumstantial, to support the verdict. Terry v.
State, 2018 Ark.App. 435, at 3, 559 S.W.3d 301, 303.
Substantial evidence is defined as evidence forceful enough
to compel a conclusion one way or the other beyond suspicion
and conjecture. Jordan, supra. The evidence
is viewed in the light most favorable to the verdict, and
only evidence supporting the verdict is considered.
was convicted of second-degree battery pursuant to Arkansas
Code Annotated section 5-13-202(a)(4)(E)(iv) (Repl. 2013).
Under this particular subsection, the State had to prove that
Warren knowingly and without legal justification caused
physical injury to or incapacitated a person he knew to be a
health-care provider while the victim was performing medical
treatment or emergency medical services or while in the
course of other employment relating to his or her medical
appeal, Warren argues that the State failed to prove each
element of the statute. Specifically, he asserts that the
State failed to prove (1) that Lewis's employer, Hospice
Home Care, was a licensed health-care provider; (2) that
Lewis herself was a licensed health-care provider; (3) that
Lewis was performing medical treatment or emergency medical
services at the time Warren struck her; and (4) that Warren
knew Lewis was a health-care provider at the time of the
we address each specific argument Warren raises on appeal, we
recite the motion to dismiss Warren made at the trial level:
Your Honor, I'll move for a directed verdict of acquittal
on the battery second. I don't believe the State has
proved beyond a reasonable doubt that Mr. Warren knew Ms.
Lewis was-I mean, she's not an emergency medical
technician, she's not a licensed-or I didn't hear
anything about her being a licensed or certified health-care
professional or any health-I guess she could be described as
any other health-care provider. He didn't-I don't
believe the statute says that he has to know that she was. I
would say the State didn't prove that beyond a reasonable
doubt. And this-this battery has to occur while Ms. Lewis is
performing some medical treatment, emergency medical services
or while in the course of other employment relating to his or
her medical training.
Your Honor, she was there consoling, she says, Mr.
Warren's sister. I don't believe that's any sort
of medical-I don't believe that's what the statute
was looking for in this. I believe it was looking for
somebody actually doing some sort of medical services for
someone and I don't believe that's the case and, for
that reason, I'd move for a directed verdict of
first subpoint, Warren cites Arkansas Code Annotated sections
23-99-203 (Supp.2017) and 20-6-102 (Supp. 2017) for the
definitions of "health-care provider,
" and he urges that the State put on no
evidence that Lewis's employer, Hospice Home Care, was
licensed by the State. Review of his motion to dismiss,
however, reveals that he failed to raise this specific
argument below, and issues raised for the first time on
appeal will not be considered on appeal. Chavez v.
State, 2018 Ark.App. 527, at 21-22, S.W.3d, (citing
Davis v. State, 2009 Ark. 478, 348 S.W.3d 553).
Because Warren failed to raise this specific argument in his
motion to dismiss, it is not preserved for our review.
Warren argues that the State failed to prove that Lewis was
licensed, certified, or otherwise authorized by the laws of
this state to administer health care. Arkansas Code Annotated
section 5-13-202(a)(4)(E)(i)-(iv) lists the types of medical
personnel who may be the victim of a second-degree battery
under this statute. Those persons include a physician; a
person licensed as emergency medical services personnel, as
defined in section 20-13-202; a licensed or certified
health-care provider; or "any other health-care
provider." As set forth above, during his motion to
dismiss, Warren acknowledged that Lewis "could be
described as 'any other health-care provider.'"
Parties are bound on appeal by the scope and nature of the
objections and arguments they ...