Cite as 2024 Ark. App. 175

ARKANSAS COURT OF APPEALS

DIVISION I

No. CR-23-184

TRACY COTTRELL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered March 6, 2024

APPEAL FROM THE PULASKI 

COUNTY CIRCUIT COURT, THIRD 

DIVISION

[NO. 60CR-21-449]

HONORABLE CATHLEEN V. 

COMPTON, JUDGE

REVERSED AND REMANDED

WAYMOND M. BROWN, Judge

Appellant Tracy Cottrell was found guilty of felony third-degree domestic battery by 

the Pulaski County Circuit Court. He was sentenced to four years’ imprisonment.1 He 

argues on appeal that the circuit court erred in finding him guilty of felony third-degree 

domestic battery because the State failed to present sufficient evidence that he had been 

convicted of third-degree domestic battery in the past five years. We reverse and remand. 

Appellant’s bench trial took place on June 27, 2022. Arabryana Guy, the victim, 

testified that on October 4, 2020, she and appellant were dating. She stated that on that 

date, appellant was drunk and upset and asked to look through her phone. She said that 

 

1He was also found guilty of violating a no-contact order and was sentenced to one

year in the county jail; however, that conviction is not an issue on appeal. 
2

she allowed appellant to look through her phone, and she walked into the back bedroom. 

She stated that appellant followed her to the back and got upset because she told him that 

she “was not in the mood” and “didn’t want to talk to him because he was drunk.” She said 

that appellant had already taken her keys and glasses, so she could not leave. Guy testified 

that appellant subsequently attacked her. She explained that appellant slapped her, pulled

her hair, and punched her. She also stated that appellant hit her with a cup and threw her 

into the door, breaking the wood and causing her to cut her arm as a result. Appellant then 

dragged her out of his apartment by her hair. She stated that her arms and nose were 

bleeding, and she had several gashes from appellant’s breaking the cup on her. Guy testified 

that appellant’s neighbor called the police, and the police took pictures of her injuries. 

Photos admitted into evidence from that day showed signs that appellant had choked Guy 

and scratched up her arms. Photos also showed blood on appellant’s door and on the floor 

of the apartment. While looking at a photo of her knee, Guy stated that that is where 

appellant kicked her. Guy testified that she still has bald spots on the top of her head from 

where appellant pulled her hair out. She acknowledged that at the time of this attack, there 

was a no-contact order in place due to a previous incident involving appellant. 

Guy testified that she had been dating appellant on June 2, 2019. She stated that on 

that day, she and her daughter were visiting appellant. She said that appellant was drinking 

and became upset because she would not let him use her car. She stated that they had an 

argument, and appellant came from outside and began choking and punching her in her

back, in front of her daughter. She said that the police were called, and pictures were taken 
3

of her injuries. The photos from that day showed evidence that Guy had been choked and 

her arms had been scratched up. Guy testified that she had other injuries from appellant’s

dragging her down the steps in front of his apartment. She stated that appellant was arrested 

following this incident.

On cross-examination, Guy stated that appellant had not yet been tried for the 2019 

incident. She conceded that since appellant had not been tried for the 2019 incident, he 

had not been convicted. 

Appellant moved for dismissal at the conclusion of the State’s case, arguing that the 

State failed to meet its burden that he was guilty of felony third-degree battery because he 

had not been convicted of the earlier incident. The State disagreed, contending that a 

conviction was not necessary to prove its case. The circuit court read the statute and agreed 

with the State. Appellant’s motion was denied.

Appellant testified that in June 2019, Guy injured his face as he was trying to put her 

out of his apartment. He stated that he called the police and they both were arrested.2 He 

said that in October 2020, Guy came to his apartment, even though there was a no-contact 

order in place. He stated that he did not let Guy in, and she began beating on his door and 

windows. He said that Guy completely tore his screen door off the hinges because he would

not let her in. Appellant testified that the blood and hair found in his apartment was the 

result of the police tracking it in from outside. He insisted that he never let Guy into his 

 

2The State clarified at appellant’s sentencing hearing that the charge against Guy was 

nol prossed once it determined that the scratch on appellant’s face was a defensive wound.
4

apartment on that day. He denied putting his hands on Guy and stated that her injuries 

had to be from what she did to the screen door and “whatever else she was doing outside the 

door.” 

On cross-examination, appellant stated that in the 2019 incident, appellant’s 

daughter called the police at the same time he did to make it “seem like . . . it was [Guy] that 

was being attacked.” He denied knowing how Guy received injuries in the 2019 incident. 

Appellant testified that the blood outside his front door in October 2020 was because Guy 

ripped off his screen door and was trying to get into his house. He denied knowing how 

Guy received injuries on that day and said that the police must have tracked Guy’s blood 

into his apartment from outside. 

Appellant unsuccessfully renewed his motion to dismiss. The circuit court found 

appellant guilty but held off sentencing until a sentencing hearing could take place. 

Appellant’s sentencing hearing took place on August 3. Appellant was sentenced to four 

years’ imprisonment. He filed a timely notice of appeal.

A 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.3 The denial of a motion 

to dismiss is affirmed if there is substantial evidence, direct or circumstantial, to support the 

conviction.4 Substantial evidence is evidence that is sufficient to compel a conclusion one 

 

3Colen v. State, 2022 Ark. App. 148, 643 S.W.3d 274.

 

4Marek v. State, 2021 Ark. App. 447, 635 S.W.3d 785. 
5

way or the other beyond suspicion and conjecture.5 On appeal, we view the evidence in the 

light most favorable to the verdict, considering only evidence supporting the verdict.6

Moreover, we do not weigh the evidence presented at trial since that is a matter for the factfinder, nor do we assess the credibility of the witnesses.7 The fact-finder is not required to 

believe any witness’s testimony, especially the self-serving testimony of the accused, because 

the accused is the person most interested in the outcome of the trial.8

Appellant argues that the circuit court erred in finding him guilty of felony thirddegree domestic battery because the State failed to present sufficient evidence that he had 

been convicted of third-degree domestic battery in the past five years. A person commits 

domestic battering in the third degree if with the purpose of causing physical injury to a 

family or household member, the person causes physical injury to a family or household 

member.9 Domestic battering in the third degree is a Class D felony if the person committed 

the offense of domestic battering in the third degree within five years of the offense of 

domestic battering in the third degree.

10

 

5

Id.

6

Id. 

7

Id. 

8E.g., Adams v. State, 2020 Ark. App. 107, 594 S.W.3d 884. 

9Ark. Code Ann. § 5-26-305(a)(1) (Supp. 2019).

10Ark. Code Ann. § 5-26-305(b)(2)(B)(iii).
6

The first rule in considering the meaning and effect of a statute is to construe it just 

as it reads, giving the words their ordinary and usually accepted meaning in common 

language.11 When the language of a statute is plain and unambiguous, there is no need to 

resort to rules of statutory construction.12 A statute is ambiguous only where it is open to 

two or more constructions or when it is of such obscure or doubtful meaning that reasonable 

minds might disagree or be uncertain as to its meaning.13 When a statute is clear, however, 

it is given its plain meaning, and this court will not search for legislative intent; that intent 

must be gathered from the plain meaning of the language used.14 Here, the statute is clear 

that to be guilty of felony third-degree domestic battery, a person must have committed the 

offense of third-degree domestic battery within the past five years. While interpreting an 

earlier version of the statute in question, our supreme court held that a criminal act is not 

elevated to the status of an offense for the purpose of a sentencing enhancement until there

is a conviction.15 In interpreting a statute, we presume that the legislature is familiar with 

our decisions.

16

 Although evidence showed that appellant was facing third-degree domestic-

 

11Magness v. State, 2012 Ark. 16, 386 S.W.3d 390.

12Id.

13Id. 

14Id.

15See Colburn v. State, 352 Ark. 127, 98 S.W.3d 808 (2003). 

16Books-A-Million, Inc. v. Ark. Painting & Specialties Co., 340 Ark. 467, 10 S.W.3d 857 

(2000). 
7

battery charges resulting from the 2019 incident against Guy, at the time of his conviction 

in this case, he had not yet been tried or convicted for the prior incident. Without a prior 

conviction, the State lacked sufficient evidence to support its contention that appellant’s 

sentence for the 2020 incident should be enhanced based on the 2019 incident. Therefore, 

we agree with appellant that the circuit court erred in denying his motion to dismiss the 

felony domestic-battery charge because the State failed to meet its burden of proof. However, 

sufficient evidence does exist for the circuit court to convict appellant of the lesser-included

misdemeanor offense of third-degree domestic battering under Arkansas Code Annotated 

section 5-26-305(b)(1). Accordingly, we reverse and remand for an order consistent with this 

opinion.

Reversed and remanded.

KLAPPENBACH and HIXSON, JJ., agree.

David Sudduth, Public Defender, by: Clint Miller, Deputy Public Defender, for 

appellant.

Tim Griffin, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.