ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION III

THOMAS JONES

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-1260

JULY 5, 2001

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT, FIFTH

DIVISION, [NO. CR00-99-2870]

HONORABLE JAMES LEON

JOHNSON, CIRCUIT JUDGE

AFFIRMED

This is a no-merit appeal. Appellant Thomas Jones was convicted after a bench trial in Pulaski County Circuit Court of aggravated assault on a family or household member and third-degree domestic battery. The charges arose out of an incident that occurred on the evening of July 3, 1999, between appellant and his former girlfriend, Devalon Campbell.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3 (j) of the Rules of the Arkansas Supreme Court and the Court of Appeals, appellant's counsel has filed a motion to withdraw as counsel on the ground that the appeal is without merit. Counsel's motion was accompanied by a briefdiscussing all matters in the record that might arguably support an appeal and a statement of the reasons why counsel considers there to be no point that might arguably support an appeal. Appellant was provided a copy of his counsel's brief and was notified of his right to file a pro se statement of points on appeal within thirty days, and a one-page statement was filed. The State agrees that there is no merit to an appeal, and it filed a brief in response to appellant's statement. We affirm appellant's convictions, and we grant counsel's motion to withdraw.

In examining all rulings adverse to appellant, we first examine the sufficiency of the evidence because appellant's counsel's motions for directed verdict and the renewal of those motions were denied. On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Id. Substantial evidence is

that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991). The fact finder may accept or reject any part of a person's testimony. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). We consider only the evidence that supports the judgment or verdict. Ashe v. State, 57 Ark. App. 99, 942 S.W.2d 267 (1997).

At the bench trial, the State subpoenaed the victim, Devalon Campbell, to testify. She stated that she and appellant lived together and were fighting on that day. During the course of their altercation inside the home, appellant threw a chair and hit her with it. Appellant also struck her with his open hand as they fought. As she was attempting to leave by walking out to her car, officers arrived on the scene.

One officer responding, Kevin Simpson, testified that he observed a man later identified as appellant holding a loaded crossbow pointed in Campbell's direction. Another officer, Matthew Thomas, corroborated this version of events verifying that appellant was pointing the loaded crossbow at her. Theyordered appellant to drop the weapon; appellant complied. This all occurred at approximately 10:30 in the evening.

Campbell did not see appellant point a weapon at her because she had her back to him at that time. The officers observed that Campbell had swelling and redness around her face, and appellant, too, was injured with a laceration above one eye. Appellant was very belligerent and asked Officer Thomas what he would do if he caught his girlfriend having sex with another man.

After appellant's motion for directed verdict was denied, he took the stand, explaining that Campbell and another man in her company had attacked him and that he was only defending himself in his own home. Appellant denied making any statements about unfaithfulness to Officer Thomas. A renewed directed verdict motion was made and denied. The trial judge found appellant guilty, specifically stating that he found Officer Simpson a very credible witness and that he found the victim's reluctance to testify as suggestive of domestic battery behavior. Appellant, an habitual offender with a history of two prior felonies, was sentenced to serve six months in the Arkansas Department of Correction.

In light of the standard of review, there can be no meritorious argument made that there was insufficient evidence to support the convictions. Domestic battery in the third degree is established by proving that the defendant, with the purpose of causing physical injury, causes physical injury to a household member. Ark. Code Ann. § 5-26-305(a)(1). Campbell was injured by being hit by a chair thrown at her by appellant, supporting the domestic battery charge. She testified that she lived with appellant at that time, and he only alleged that he had "put her out." Aggravated assault on a household member is defined in Ark. Code Ann. § 5-26-306(a) as a person, acting under circumstances manifesting extreme indifference to the value of human life, purposefully engaging in conduct that creates a substantial danger of death or of serious physical injury to a household member. The finding of fact, that appellant's act of pointing a loaded crossbow at Campbell as she had her back to him created such a danger, is supported by substantial evidence.

The other objections decided adversely to appellant would not support a meritorious appeal either. We examine them here. First, appellant objected to the State's attempt tohave the victim testify about a subsequent battering by appellant. Appellant objected on the basis of relevancy. The State responded that this evidence would be permissible pursuant to Ark. R. Evid. 404(b) because his subsequent attack on her would demonstrate a lack of mistake or accident. The admission or rejection of evidence is left to the sound discretion of the trial court, which will not be reversed in the absence of a manifest abuse of that discretion. See Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998). Rule 404(b) does not by its own terms limit such evidence of other crimes, wrongs, or acts to solely prior bad acts. This evidence tended to support the fact that this couple's relationship had an unstable and unhealthy character, marked by violence, which tended to disprove appellant's claim that he was merely defending himself from an unprovoked attack on the date in question. There is no abuse of discretion in this instance.

Another of the State's objections was sustained when appellant's counsel tried to elicit from the victim why people outside of the home did not come in the door during the couple's fight as it was going on inside. The State arguedthat this called for speculation, which was sustained. This ruling was not an abuse of discretion because the victim had no personal knowledge of other persons' motivations. According to Ark. R. Evid. 602, a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Therefore, no meritorious grounds for reversal rests in this adverse ruling.

The State's next objection that was sustained in its favor came during the testimony of appellant's brother, when appellant's counsel asked why the brother reported to the scene. The brother attempted to testify that he was informed that some guys had jumped on appellant, but the State argued that this called for hearsay. The brother was permitted to testify that he came to the residence because he feared for appellant's safety, which was proper, but anything relating to what others had told the brother would be rank hearsay. No reversible error could be predicated on this ruling.

During the course of trial, the brother also attempted to testify about contacts he had with a drug treatment program that he had made on appellant's behalf, but the State objectedon relevancy grounds. Because there had not been a finding of guilt or innocence, potential dispositions of appellant were not relevant to the issue at hand. The trial court properly advised the witness to save his comments until later.

After appellant was found guilty, the sentencing hearing was conducted in which appellant's counsel requested that he be sent to prison for only one day and be assessed a substantial fine, considering that he was an addict who needed treatment and not punishment. The trial judge, after considering the limited options available, sentenced appellant for the felony to six months of incarceration, with credit for sixty days served. The misdemeanor battery conviction merged into the felony.

The power of sentencing lies with the trial court, and when a sentence is within the statutory limits, the appellate court will not reduce the sentence unless the punishment was a result of passion or prejudice, was an abuse of discretion, or was wholly disproportionate to the nature of the offense. Henderson v. State, 322 Ark. 402, 910 S.W.2d 656 (1995). Considering that the Class D felony of aggravated assault on a family member carries a possible sentence from zero totwelve years, and the presumptive sentence on these facts was for eighteen months' incarceration, the trial court can only be said to have acted with compassion as opposed to prejudice.

Finally, we address appellant's pro se points for reversal. Appellant's handwritten points state, verbatim:

To whom it may concern

To the extent we can understand this, appellant complains that his trial counsel was ineffective, a point that cannot be considered on direct appeal because it was not brought to the trial court for consideration and a ruling. Reed v. State, 323 Ark. 28, 912 S.W.2d 929 (1996). We do not understand the second sentence as it regards the failure of the victim to testify because she did "speak" at the trial because she was commanded to be present under subpoena. We cannot comprehend any appellate issue as stated in the remaining two sentences.

Based upon our review of the record and the briefs presented to us, we conclude that there has been full compliance with Rule 4-3(j) and that the appeal is without merit. Counsel's motion to withdraw is granted, and theconvictions are affirmed.

Griffen and Crabtree, JJ., agree.