Calvin C. WILLIAMS, Jr. Appellant
v.
STATE of Arkansas, Appellee
APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION [NO.
60CR-18-1995], HONORABLE HERBERT WRIGHT, JUDGE
William
R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy
Public Defender, for appellant.
Leslie
Rutledge, Atty Gen., by: Jason Michael Johnson, Asst Atty
Gen., for appellee.
OPINION
PHILLIP
T. WHITEAKER, Judge
Appellant Calvin Williams was charged with six felony counts
following an altercation with his girlfriend.[1] The Pulaski
County Circuit Court, sitting as the trier of fact, found him
guilty on five of those counts. On appeal, Williams argues
that the circuit court should have granted his motion to
dismiss as to one of his convictions--that for aggravated
assault on a family or household member. We find no error and
affirm.
We
treat a motion to dismiss at a bench trial like a motion for
directed verdict at a jury trial; it is considered a
challenge to the sufficiency of the evidence. Hamrick v.
State, 2019 Ark.App. 298, 577 S.W.3d 734. We affirm a
circuit courts denial of the motion if there is substantial
evidence, either direct or circumstantial, to support the
verdict. Id. Substantial evidence is evidence
forceful enough to compel a conclusion one way or the other
beyond suspicion and conjecture. Id. On appeal, we
view the evidence in the light most favorable to the verdict,
considering only evidence supporting the verdict.
Id. Moreover, we do not weigh the evidence presented
at trial, as that is a matter for the fact-finder, nor do we
assess the credibility of the witnesses. Id.
Williams
appeals his conviction for aggravated assault on a family or
household member. To commit this offense, Williams had to
purposely engage in conduct that created a substantial danger
of death or serious physical injury to a family or household
member under circumstances manifesting extreme indifference
to the value of human life. Ark. Code Ann. § 5-26-306(a)(1)
(Repl. 2013). His argument on appeal is that the State failed
to prove that he engaged in conduct that created a
substantial danger of death or serious physical
injury.[2] We therefore examine the testimony
presented at trial to determine if sufficient evidence
supports Williamss aggravated-assault conviction.
Tawanna
Willingham, the victim of the assault, was Williamss
girlfriend. She and Williams had been in a relationship for a
year and a half.[3] On the day of the altercation,
Williams went to Willinghams home and threatened violence if
she did not let him inside. Willingham let Williams into her
home. Once inside, he brandished a pocket knife, held the
knife to the chest of her two-year-old son and threatened to
kill him, and told Willingham that her children would witness
something bad happening to her. He was true to his threat. In
the presence of her children, Williams began punching
Willingham repeatedly in her face, eyes, and ears. Because he
had the knife in his hand while he was punching her, she
sustained a cut on her ear.
On
appeal, Williams does not dispute that he punched Willingham
in the face or caused her left ear to be cut. Instead, he
argues that the State failed to prove that he engaged in
conduct that created a substantial danger of death or serious
physical injury. In making this argument, he focuses on the
statutory phrase "serious physical injury."
Williams acknowledges that "serious physical
injury" is defined in Arkansas Code Annotated section
5-1-102(21) (Repl. 2013) as "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." He notes, however, that the word
"substantial" is not defined in the statute.
Williams cites cases from New Mexico and Washington to argue
in favor of a "quantitative definition" of the word
that would require evidence of something "of ample or
considerable quality or amount." Applying his favored
definition, Williams contends that none of Willinghams
injuries were "substantial." We are not persuaded
by his arguments.
Under
Arkansas caselaw, Williams did not have to cause death or
serious physical injury to be convicted of aggravated assault
on a family or household member. In Wooten v. State,
32 Ark.App. 198, 201, 799 S.W.2d 560, 562 (1990), this court
explained that our aggravated-assault statute requires only
the "creation of substantial danger of death or
serious physical injury to another person." (Emphasis
added.) In Nelson v. State, 84 Ark.App. 373, 141
S.W.3d 900 (2004), we affirmed a conviction for aggravated
assault on a family or household member when the appellant
grabbed a shotgun and pointed it at his family but was
disarmed before using it. In Williams v. State, 96
Ark.App. 277, 241 S.W.3d 290 (2006), this court affirmed a
conviction for aggravated assault on a family or household
member when the appellant attempted to hit the victims with
her automobile. We rejected the argument that the testimony
showing that she only attempted to hit the victims with the
car did not constitute substantial evidence that she engaged
in conduct that created a substantial danger of death or
serious injury to the victims. See also Schwede
v. State, 49 Ark.App. 87, 89, 896 S.W.2d 454, 455
(1995); Johnson v. State, 132 Ark. 128, 130, 200
S.W. 982, 982 (1918) (holding that "the act of drawing a
pistol, if accompanied by threats evidencing an intention to
use it on the person threatened, constitutes an
assault").
Here,
Williams engaged in conduct sufficient to show that he
committed an aggravated assault on Willingham. He repeatedly
punched her in the head and face while brandishing an open
pocket knife, which can certainly create a substantial danger
of death or serious physical injury. Viewing the evidence in
the light most favorable to the State, we hold that
substantial evidence supports Williamss conviction, and we
therefore affirm.
As a
final matter, Williams notes that there is a scriveners
error on his sentencing order. Admittedly, the circuit court
entered an order reflecting that one count of second-degree
domestic battery was nolle prossed, when in fact the circuit
court granted Williamss motion to dismiss that count. The
circuit court is free to correct a clerical error to have the
judgment speak the truth. Jefferson v. State, 2017
Ark.App. 536, 532 S.W.3d 593. We therefore affirm Williamss
conviction but remand to the circuit court with instructions
to correct the sentencing order. See, e.g.,
Carter v. State, 2019 Ark.App. 57, at 17, 568 S.W.3d
788, 798.
Affirmed; remanded with instructions to correct ...