ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION 

CONSTANCE WAYNE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-0079

                                 October 29, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 1999-1991]

HON. DAVID BOGARD,

 JUDGE

AFFIRMED

Robert J. Gladwin, Judge

           Following a bench trial, the Pulaski County Circuit Court convicted Constance Wayne of second-degree domestic battering and revoked his probation. He was sentenced to serve a total of six years’ imprisonment. On appeal to this court, appellant argues that there was insufficient evidence to support his conviction and revocation because the State failed to prove that the victim suffered a serious physical injury. We disagree and affirm.

           Kimberly Willis, the victim, testified that she lived with appellant in Little Rock but that she was living with her grandmother at the time of the incident. Willis stated that she had just arrived at her grandmother’s house with appellant’s child when appellant approached her and wanted to talk. She told appellant that she did not have anything to say to him and went toward the back of her car to get the child. Willis stated that she turned back around and appellant hit her in the face repeatedly.

           Willis testified that she went to the emergency room and was there for four or five hours. She stated that she had a concussion and bruises. She also stated that her face was so swollen that she could not see for a week. According to Willis, she could go outside only with sunglasses on because she had rings around her eyes, a condition that persisted for one year. Willis testified that she had experienced blurry vision and headaches since the incident. She conceded that she did not have any medical reports to verify the extent of her injuries.

           Detective Nikki Persons testified that the medical records Willis brought with her from the emergency room indicated that she needed to see a specialist because the doctors at the hospital could not tell whether she had a fracture under her eye and over her nose because her face was so swollen.

           Appellant properly preserved his argument regarding the sufficiency of the evidence in a directed-verdict motion. The trial court denied that motion and found appellant guilty of second-degree domestic battering. Before pronouncing sentence, the trial court addressed the matter of revocation.

           Appellant agreed to stipulate that he was on probation at the time of the offense in question. Nashae Harris, appellant’s probation officer, testified that, except for the incident with Willis, appellant had complied with the terms and conditions of his probation including reporting regularly, paying fines, and maintaining employment. In addition, Harris stated that appellant had completed an alcohol treatment program as well as an anger management class.            Appellant testified in his own behalf. He accepted responsibility for what happened and apologized to the victim and her family.

           The trial court then sentenced appellant to serve six years’ imprisonment on the second-degree battery conviction. Upon revocation of Case Number CR-99-1991 for burglary and three counts of second-degree battering, appellant was sentenced to five years’ imprisonment for burglary and two years’ imprisonment for each count of battering, with those sentences running concurrently with the six-year sentence.

           A motion to dismiss, identical to a motion for a directed verdict in a jury trial, is a challenge to the sufficiency of the evidence. Green v. State, 79 Ark. App. 297, 87 S.W.3d 814 (2002). When reviewing a denial of a challenge to the sufficiency of the evidence, the appellate court considers only the evidence that supports the judgment and affirms if that evidence is substantial. Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002). Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Goodman v. State, 74 Ark. App. 1, 45 S.W.3d 399 (2001).

           A person commits domestic battering in the second degree if with the purpose of causing physical injury to a family or household member, he causes serious physical injury to a family or household member. Ark. Code Ann. § 5-26-304(a)(1) (Supp. 1999). Arkansas Code Annotated section 5-1-102(19) (Supp. 1999) defines “serious physical injury” as physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.

           Appellant argues that the trial court was forced to speculate about the extent of Willis’s injuries because she failed to present any medical documentation to support her claims. Appellant contends that, in any event, the only claim of injury that had any lasting effect was her claim of vision impairment for one week. He argues that Willis suffered nothing more than bruising and swelling and that these injuries constitute only “physical injury” as opposed to “serious physical injury.” He thus maintains that he should have been convicted of domestic battering in the third degree, which is a Class A misdemeanor. Appellant argues that the revocation was based solely upon the trial court’s determination that he had committed a felony against Willis. He asserts that because he committed only a misdemeanor, it is “doubtful” that the trial court would have sentenced him to prison since he had complied with all other terms of his probation. Appellant urges this court to reduce his conviction to domestic battering in the third degree and remand his case to the trial court for reconsideration of the sentences.

           Appellant’s arguments must fail. Considering Willis’s testimony describing the beating and a photograph of her injuries depicting the severity of the blows, we cannot say that there was no substantial evidence from which the trial court could have determined that Willis sustained a serious physical injury, despite a lack of medical evidence. See Johnson v. State, 26 Ark. App. 286, 764 S.W.2d 621 (1989). In addition to the bruising and swelling, Willis could not see for a week, had rings around her eyes for one year, and had blurry vision and headaches at the time of trial. The trial court, sitting as trier of fact, could have concluded that Willis’s injuries constituted protracted impairment given her testimony as to the enduring nature of her injuries. Substantial evidence supports appellant’s conviction for second-degree battering.

           The standard of review with regard to appellant’s revocation is slightly different. See Farrelly v. State, 70 Ark. App. 158, 15 S.W.3d 699 (2000). In revocation cases, the trial court must find by a preponderance of the evidence that the defendant has failed to comply with the conditions of his probation before it may be revoked. Id. On appeal, we do not reverse the trial court’s decision unless it is clearly against the preponderance of the evidence. Id. We note that a condition of appellant’s probation was that he obey all federal and state laws. Because we affirm appellant’s conviction for second-degree battering, we cannot say that the trial court erred in revoking his probation. In any event, even if the trial court had erred in finding that appellant committed a particular offense, we would still affirm his revocation if the evidence would support a finding that he committed a lesser-included offense. See Willis v. State, 76 Ark. App. 81, 62 S.W.3d 3 (2001).

           Affirmed.

           Robbins and Bird, JJ., agree.