Donald A. WARREN, Appellant v. STATE of Arkansas, Appellee

No. CR-18-612

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered January 23, 2019

Bill Luppen, for appellant.

Leslie Rutledge, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee.

PHILLIP T. WHITEAKER, Judge *107Appellant 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.

The 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 guilty verdict.

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. Ark. R. Crim. P. 33.1 (2018); *Jordan v. State* , 2014 Ark. App. 325, at 1, 2014 WL 2157581. 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. *Terry, supra.*

Warren 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 training.

On 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 battery.

Before we address each specific argument Warren raises on appeal, we recite *108the 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 acquittal.

In his 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,"1 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, 564 S.W.3d 268, 281-82 (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.

Next, 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 presented below, *Lytle v. State* , 2012 Ark. App. 246, at 6, 2012 WL 1194147, and as Warren recognized Lewis's status as a health-care provider below, he may not be heard to raise a contrary argument now.

Third, Warren asserts that the State failed to prove that Lewis was "performing 'medical treatment' or 'emergency medical services' when [Warren] struck her." He argues in his brief that Lewis could not have been performing medical services on Ms. Campbell "because you can't perform those services on a dead *109person." We reject his argument for two reasons. First, this specific argument was not raised below. *See Chavez, supra.* Secondly, however, Warren's argument ignores the plain language of the statute: a person can commit second-degree battery on a health-care provider when that person is "in the course of *other employment relating to* his or her medical training." Ark. Code Ann. § 5-13-202(a)(4)(E) (emphasis added). The circuit court heard evidence that Lewis returned to Ms. Campbell's house to provide postmortem care. Lewis described this care as "getting her ready if any family members wanted to see her before the mortuary people come and pick her up." Likewise, the circuit court heard evidence that Lewis was at the home to console the family. Lewis's supervisor, Sara Stewart, testified that Lewis's employment duties were to take care of Ms. Campbell and to provide comfort to the family. Lewis was thus "in the course of other employment relating to ... her medical training" when Warren struck her. Accordingly, we find no merit to Warren's argument.

Finally, Warren argues that the State failed to prove his knowledge that Lewis was any type of health-care worker or health-care provider. To address this argument, we must refer to the trial testimony. Lewis admitted that she was not wearing her scrubs or displaying her identification badge that identified her as a health-care worker. Warren testified that he had never met Lewis before that day and thought she was the woman who lived next door. Warren therefore contends that the evidence was insufficient to prove the knowledge element of the statute. We are not persuaded by his argument because other trial testimony sheds additional light on this element.

Lewis initially testified at trial that she did not have a chance to identify herself to Warren before he hit her. She further did not initially recall whether Warren had asked her identity before the attack. The State, however, refreshed her memory over Warren's objection with a copy of the statement she had given to police on the day of the incident. With this refreshment, Lewis testified that Warren asked her who she was, and she told him she was the caregiver, but before "[she could] tell him that real good, that [was] when [she] got hit." Similarly, Lewis's supervisor Stewart testified that Warren was very angry when he arrived at his mother's house, and she and Lewis tried to calm him down. Stewart stated that Lewis told Warren that she was there to take care of his mother and had been her aide, but Warren then began hitting Lewis. Thus, both Lewis and Stewart testified that Lewis told Warren that she was Ms. Campbell's caregiver before he hit her. While Warren disputed this testimony, the circuit court, as a fact-finder, is responsible for determining the weight and credibility of evidence. *Jordan, supra.* Here, the circuit court clearly assigned weight and credibility to this testimony, as it was entitled to do. *Id.* Accordingly, we hold that the State sufficiently proved each necessary element of the second-degree battery statute, and the circuit court did not err in denying Warren's motion to dismiss.

Affirmed.

Virden and Klappenbach, JJ., agree.

1

Section 23-99-203 defines the term as "those individuals or entities licensed by the State of Arkansas to provide healthcare services," and section 20-6-102(11) defines a healthcare provider as a person who is licensed, certified or otherwise authorized by the laws of this state to administer health care in the ordinary course of the practice of his or her profession.

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