ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION III

LARRY SMITH

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-700

DECEMBER 12, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 2000-2441]

HONORABLE JOHN W. LANGSTON,

CIRCUIT JUDGE

AFFIRMED

The Pulaski County Circuit Court convicted the appellant, Larry Smith, of first-degree domestic battery and sentenced him to a term of 120 months in the Arkansas Department of Correction. On appeal, he contends that the trial court erred by allowing the victim to testify as to a statement made by a third person who was not present at trial. Appellant does not challenge the sufficiency of the evidence to support his conviction. We affirm.

Betty Hearn, the victim, testified at trial that she and appellant had lived together in North Little Rock. However, on March 24, 2000, Hearn was living in a house with John McKnight. While on her way back to McKnight's house after running errands that day, she saw appellant walking and took him to McKnight's house. They drank, and McKnight told appellant that Hearn was "messing with" another man. This, apparently, angered appellant, and he began to argue with Hearn. The two of them went inside the house and fought.

According to Hearn, appellant pushed and kicked her, and he continued to kick her after she fell. Appellant also stabbed her, although she did not know with what. Her face was "messed up" as a result of appellant's repeated kicking.

Hearn further testified that as she lay hurt on the floor, Yvonne Redding, a witness who had died before the trial, told her that appellant had said, "The b----. The black b----dead now." Appellant objected to the statement as hearsay because Hearn did not hear appellant say it, but knew of it only because Redding told her about it. The court told the prosecutor to rephrase the question, and Hearn testified that Redding was "scared to death" and shaking when she told Hearn what appellant had said. Hearn heard Redding yell, "Oh, you done killed her." The prosecutor argued that Hearn's testimony about what Redding had heard appellant say was proper as an admission by a party opponent, and as an excited utterance. In overruling appellant's objection, the trial judge ruled that Redding's statement was an excited utterance made contemporaneously to the event. The judge added, "I'll give it some weight."

Dr. Thomas Robinson, an emergency room physician at Baptist Memorial Hospital in North Little Rock, testified that he treated Hearn in the emergency room on March 24, 2000. He stated that Hearn had a small stab wound to the chest that caused a "minor" collapsed lung, and that there was blood in her chest cavity. Hearn had bruising around her right eye with a small laceration, and a corneal abrasion on her eye. In addition, her right seventh rib was fractured. Hearn's lung was punctured from the stab wound. Dr. Robinson testified that, left untreated, the lung would have continued to collapse and eventually "chokeoff" blood returning to the heart, resulting in irreversible shock and death. Thus, Hearn's injury was "potentially" life threatening. Hearn was hospitalized for four days.

On appeal, appellant focuses on the trial judge's statement that he would give Hearn's testimony concerning what Redding reported to her "some weight" to conclude that the judge relied on that testimony to convict appellant. Of course, the judge made that comment before he had heard all of the testimony. Rather than focus on that statement, the focus should be on what the judge stated later, after he had heard all of the evidence. At the conclusion of all the testimony, the court found appellant guilty "[b]ased upon the evidence and testimony of Dr. Robinson, as well as Mrs. Hearn." Earlier, in denying appellant's directed-verdict motion at the conclusion of the State's case-in-chief, the judge outlined the evidence that he found to be sufficient to deny that motion. The judge pointed to Dr. Robinson's testimony about the serious nature of Hearn's injuries, and to Hearn's testimony that she sustained the injuries while fighting with appellant. The judge did not refer to the statements made by appellant that Redding related to Hearn. Rather, the judge focused on the cause and nature of Hearn's injuries. The judge stated that he was relying on that same evidence when he convicted appellant at the close of the trial. Because the judge specified the evidence he relied upon, appellant's argument about the admissibility of Redding's account of what she had heard appellant say is misplaced.

In cases tried without a jury, the judge is presumed to have considered only competent evidence, and this presumption is overcome only when there is an indication that the trial judge did give some consideration to inadmissible evidence. Summerlin v. State, 7 Ark.App. 10, 643 S.W.2d 582 (1982). Here, the record establishes that the trial judge relied upon other evidence that proved that appellant had battered Hearn and caused her serious physical injury under circumstances manifesting extreme indifference to the value of human life by repeatedly kicking her and fracturing her rib, and by stabbing her in the chest and puncturing her lung. See Ark. Code Ann. § 5-26-303(a)(3) (Supp. 1999).

Appellant argues that Hearn's testimony about what Redding had told her was necessary to establish the "extreme indifference" element of the offense. We disagree. That element was satisfied by Hearn's description of the beating and by Dr. Robinson's testimony that the puncture to Hearn's lung was potentially a life-threatening injury. See Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). This testimony, relied upon by the trial judge in response to appellant's claim in his directed-verdict motion that the State had not proven a life-threatening injury, established the element of "extreme indifference to the value of human life," wholly apart from the statements made by Redding.

Appellant's arguments on appeal are based upon the premise that the trial judge relied upon statements made by Redding to Hearn. However, we believe that the trial court relied upon other evidence in convicting appellant of domestic battery. Appellant has demonstrated no prejudice as a result of allowing into evidence the statements made by Redding. As such, we need not address whether the statements were admissible. Even assuming that the trial court erred in allowing the testimony, the error was harmless in that the prejudicial effect of the testimony was minimal and the evidence of guilt was overwhelming. Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999); Womack v. State, 301Ark. 193, 783 S.W.2d 33 (1990). We cannot say that this claim of error warrants reversal.

Affirmed.

Bird and Baker, JJ., agree.