Hammonds v. State

375 S.W.3d 713, 2010 Ark. App. 465, 2010 Ark. App. LEXIS 507

• Court: Court of Appeals of Arkansas
• Decided: June 2, 2010
• Docket: No. CA CR 09-855
• Status: Published

Opinions

JOHN B. ROBBINS, Judge.

| tAppellant Matthew Hammonds was convicted by a jury of abuse of a corpse and was sentenced to six years in prison. Mr. Hammonds was found to have abused the corpse of his deceased wife, who died of a cocaine overdose in their home on May 13, 2008. On appeal, Mr. Hammonds raises two arguments. He challenges the trial court’s decision to give jury instruction AMCI 2d 7113, arguing that the trial court instead should have given his proffered instruction because the model instruction is not a correct statement of the law. Mr. Hammonds also challenges the sufficiency of the evidence to support his conviction. We agree that there was insufficient evidence to support the verdict, and we reverse.

Pursuant to Ark.Code Ann. § 5-60-101(a)(2) (Repl.2005), a person commits abuse of a corpse if, except as authorized by law, he knowingly physically mistreats a corpse in a | ¿manner offensive to a person of reasonable sensibilities. Because of double-jeopardy concerns, we consider challenges to the sufficiency of the evidence before addressing other arguments. Saul v. State, 92 Ark. App. 49, 211 S.W.3d 1 (2005). When the sufficiency of the evidence is challenged, we consider only the evidence that supports the verdict, viewing the evidence in the light most favorable to the State. LeFever v. State, 91 Ark. App. 86, 208 S.W.3d 812 (2005). The test is whether there is substantial evidence to support the verdict, which is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Id. On review, this court neither weighs the evidence nor evaluates the credibility of witnesses. Cluck v. State, 91 Ark. App. 220, 209 S.W.3d 428 (2005).

The facts of this case are largely undisputed. Mr. Hammonds lived in a house with his wife, Lygia, her brother Arnett, and Lygia’s two children, ages nine and fourteen. On May 13, 2008, Mr. Ham-monds, Lygia, and Arnett smoked crack cocaine. Mr. Hammonds fell asleep at the house early that afternoon and Lygia wandered out of the house.

When Mr. Hammonds awoke, he drove around looking for Lygia. He found her in a disoriented state hugging a tree, and with the help of a passerby Mr. Ham-monds was able to get Lygia into his vehicle and he drove her home. When Mr. Hammonds arrived home, Arnett helped him get Lygia into the house. The two men were able to get her into a bedroom and laid her on the floor, covering her with a blanket.

At about 11:00 p.m. Mr. Hammonds discovered that his wife had died. He informed RArnett of that fact, and the men decided to wait until after Lygia’s children went to school the next morning to handle the matter. The police received a call at about 7:45 a.m. on the following morning reporting that there had been a death at the house. When the police arrived Mr. Hammonds was arrested on outstanding warrants.

Mr. Hammonds subsequently gave two statements to the police. In his first statement, Mr. Hammonds said that he did not discover that his wife had died until the morning of May 14, 2008. However, in the next statement he acknowledged that he knew she was dead at 11:00 p.m. the night before. He indicated in his testimony that he wanted Lygia’s children to be gone from the home before the police came to process the scene. Mr. Hammonds testified that he did not touch Lygia’s body from the time he discovered she was dead until the police arrived.

In this appeal, we first address Mr. Hammonds’s argument that there was not substantial evidence to support his conviction. Mr. Hammonds asserts that there was no evidence that he even touched her body after he discovered that Lygia was dead, and he notes that in its opening statement the prosecution conceded, “There’s no allegation by the State that Mr. Hammonds mistreated her after she passed away.” The theory of the prosecution rested on Mr. Hammonds’s delay in reporting the death, but Mr. Hammonds submits that this conduct did not establish the required elements that he knowingly mistreated a corpse in a manner offensive to a person of reasonable sensibilities. Because the proof was insufficient, Mr. Ham-monds argues that his conviction for abuse of a corpse must be reversed.

|4We agree that there was a lack of substantial evidence to support Mr. Ham-monds’s conviction. We have found only two published cases where the sufficiency of the evidence to support abuse of a corpse was an issue on appeal, and while both of those cases were affirmed, the facts were far more egregious than in the instant case. In Dougan v. State, 322 Ark. 384, 912 S.W.2d 400 (1995), the appellant wrapped her stillborn baby in bloody sheets and placed him in a dumpster. In Dailey v. State, 101 Ark. App. 394, 278 S.W.3d 120 (2008), the appellant placed the corpse in fifty-five gallon garbage bags, secured by duct tape, and hid it in a “junk room” where it began decomposing and was not discovered until four days later. In both of those cases the appellant mishandled and tried to hide the corpse, which rose to the level of physical mistreatment that would offend a person of reasonable sensibilities. By contrast, in the case at bar Mr. Hammonds did not touch the corpse at all, and instead of trying to conceal it he contacted the police the following morning to report the death.

The abuse-of-a-corpse statute was formerly designated as Ark. Stat. Ann. § 41-2920 (Repl.1977), and the commentary provided:

This section is designed to cover not only sexual assaults but also lesser forms of mishandling, abuse, or even neglect.... The primary purpose of the section is to protect the feelings of the family of the deceased person.

The above commentary leaves open the possibility that neglect, as opposed to some affirmative act of physical mistreatment, may under the right circumstances satisfy the elements of the statute. However, the charged neglect in this case was waiting eight hours and forty-five minutes until daybreak to contact the police. There was no evidence that) ^appellant’s delay in reporting the death had an adverse impact on any of the decedent’s family members, including her children. On this record, we hold that substantial evidence did not support the jury’s finding that Mr. Hammonds knowingly mistreated a corpse in a manner offensive to a person of reasonable sensibilities.

Mr. Hammonds’s remaining argument is that the trial court erred by failing to properly instruct the jury when it gave AMCI 2d 7113, which provides in relevant part:

Matthew Hammonds is charged with the offense of abuse of a corpse. To sustain this charge, the State must prove beyond a reasonable doubt that he knowingly mistreated a corpse in a manner offensive to a person of reasonable sensibilities.

Mr. Hammonds submits that this model instruction is not an accurate statement of the law because Ark.Code Ann. § 5-60-101(a)(2) provides that to be convicted a person must physically mistreat a corpse, and the word “physically” is omitted from the offending jury instruction. The trial court denied appellant’s proffered instruction, which inserted the word “physically” before “mistreated.” Mr. Hammonds’s argument is well taken because criminal model jury instructions do not trump the language of our criminal statutes. See State v. Sola, 354 Ark. 76, 118 S.W.3d 95 (2003). Nevertheless, we need not decide whether reversible error occurred in failing to give the more accurate jury instruction in light of our holding that there was not substantial evidence to support the conviction.

Reversed and dismissed.

VAUGHT, C.J., and HART, J., agree. PITTMAN, J., concurs. HENRY and BROWN, JJ., dissent.