Banks v. State

125 S.W.3d 147, 354 Ark. 404, 2003 Ark. LEXIS 534
CourtSupreme Court of Arkansas
DecidedOctober 16, 2003
DocketCR 03-104
StatusPublished
Cited by13 cases

This text of 125 S.W.3d 147 (Banks v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Banks v. State, 125 S.W.3d 147, 354 Ark. 404, 2003 Ark. LEXIS 534 (Ark. 2003).

Opinion

Donald L. Corbin, Justice.

Appellant Darryl Banks appeals the order of the Pulaski County Circuit Court convicting him of the felony charge of third-degree domestic battering, second offense, a violation of Ark. Code Ann. § 5-26-305 (Repl. 1997). On appeal, he argues that the twelve-year sentence imposed as a result of that conviction is illegal, because the proof adduced at trial established that he committed third-degree domestic battering, a misdemeanor. This case was certified to us from the Arkansas Court of Appeals as involving an issue of first impression and an issue requiring clarification or development of the law; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R.l-2(b)(l) and (5). We reverse and remand.

On the evening of November 11, 2001, Appellant approached his wife Stacy Banks in a nightclub and told her to go home. After she refused, Appellant approached her again, and both Appellant and his wife were asked to leave the club. Once at home, Appellant and Mrs. Banks began to argue, and Appellant then choked his wife and struck her in the face. He then ran off. Mrs. Banks called 911 and police were dispatched to her home, where they took a statement from her. The next morning, Mrs. Banks tried talking with her husband, but he struck her again. She again called the police, who took a second statement from her and photographed her injuries. Those injuries included a busted lip, some bruising, and scratches around her eyes.

The State filed a felony information against Appellant on December 14, 2001, charging him with'one count of domestic battering in the third degree, second offense. The information also alleged that Appellant was a habitual offender.

Appellant was tried before a jury in circuit court on June 26, 2002. Prior to the commencement of the trial, there was a discussion as to whether or not the State should introduce evidence of Appellant’s prior conviction for domestic battering during the guilt phase of his trial or during the sentencing phase, if Appellant was found guilty. Ultimately, the trial court agreed that the prior conviction should be admitted during the sentencing phase of the trial for purposes of sentence enhancement.

Two witnesses testified on behalf of the State. First, Mrs. Banks testified regarding the events leading up to her injuries and the nature of her injuries. Also testifying was Officer Ivan Smith of the Little Rock Police Department. Officer Smith testified that on the evening of November 11, he received a call regarding an assault in progress at Appellant’s residence. When the officer arrived, he noticed a man fitting Appellant’s description running along the wood line next to the trailer park where Appellant and his wife lived. Smith made contact with Appellant and took him into custody. Appellant told Smith that he had been asleep on the couch when his wife came in and started hitting him in the chest. Appellant claimed that he left his residence before he got mad and hit his wife. Smith drove Appellant back to his residence and found Mrs. Banks suffering from a swollen lip and bruised right eye. Smith testified that Mrs. Banks was very upset and crying when he arrived at the residence.

Following the testimony of Smith, the State rested its case. Appellant moved for a directed verdict, arguing that the State failed to show that Mrs. Banks suffered any physical injury. The motion was denied. The defense then rested without presenting any evidence. Appellant’s directed-verdict motion was renewed and again denied. The case was then submitted to the jury, which returned a verdict of guilty.

Following the rendering of the guilty verdict, the State introduced into evidence the prior misdemeanor conviction of Appellant for domestic battering in the third degree. The State also introduced evidence of Appellant’s prior felony conviction for aggravated assault against a family member and a felony conviction for aggravated assault. The jury then sentenced Appellant to a term of twelve years’ imprisonment. This appeal followed.

Appellant’s sole argument on appeal is that the trial court erred by imposing an illegal sentence. He bases this argument on the contention that the proof adduced at trial supported a conviction for a misdemeanor charge of domestic battering in the third degree, not a felony charge. He urges that the State was required to introduce evidence of his prior offense of domestic battering during the guilt phase of his trial, as he claims the prior offense is a substantive element of the felony charge of third-degree domestic battering, second offense. Thus, according to Appellant, because he was given an illegal sentence, this issue may not be waived by the parties and may be raised for the first time on appeal. We do not agree with Appellant on this point.

It is'true that this court has held allegations of a void or illegal sentence constitute an issue of subject-matter jurisdiction and, as such, cannot be waived by the parties and may be addressed for the first time on appeal. Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002). In the instant case, however, we do not agree that the issue raised by Appellant is one of an illegal sentence; rather, Appellant’s argument amounts to a challenge of the appropriateness of the introduction of his prior offenses during the sentencing phase of the trial, as opposed to introducing them during the guilt phase of the trial. In other words, Appellant claims that he was tried and convicted of a misdemeanor, because the State failed to prove the second-offense element of the felony charge during the guilt phase. It is apparent that Appellant has chosen to couch his argument in terms of an illegal sentence, because the issue is not preserved for our review.

Immediately prior to the commencement of this trial, a discussion took place between the trial court and both attorneys. There appeared to be confusion as to whether the State was required to introduce evidence of Appellant’s prior misdemeanor conviction in order to prove that this was his second offense. The following colloquy then took place:

The Court: How many priors does he have?
Mr. Sipe: He’s got two prior aggravated assaults he’s on probation for in this court, and they’re aggravated assaults against family or household members.
The Court: Those are the two you’re referring to?
Mr. Sipe: The two I’m referring to. And then there’s' also a misdemeanor.
The Court: Well, you know, in the information, we’ve got to talk about it because you’ve got to prove it.
Mr. Sipe: WeH, —
The Court: How are you going to do that?You’ve got to prove this is a second offense.
Mr. Sipe: We can — the way I’ve got a jury instruction — I can show you the jury instruction if you want to see it.The way I have the jury instruction written up is, they first go back and they find him guilty or innocent of domestic battery, third degree. So I’m not sure that the Court —
The Court: Wait a minute.

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Bluebook (online)
125 S.W.3d 147, 354 Ark. 404, 2003 Ark. LEXIS 534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/banks-v-state-ark-2003.