ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV

PETER THOMAS,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR03-230

DECEMBER10, 2003

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT,

NO. CR202-165,

HON. RALPH WILSON, JUDGE

AFFIRMED

Sam Bird, Judge

Peter Thomas was charged with second-degree battery as a result of a February 20, 2001, confrontation with a police officer. He was convicted by a jury and was sentenced to six years' imprisonment in the Arkansas Department of Correction. On appeal he contends that the trial court erred 1) in denying his motion for a directed verdict and 2) in granting the State's motion in limine to exclude evidence regarding jail-time credit for the amount of time he had been incarcerated prior to trial. Finding no error, we affirm his conviction. Officer Gregory Todd Gray of the Turrell Police Department testified that on February 8, 2001,while on patrol in a marked vehicle, he clocked a car traveling fifty-five miles an hour in a forty-five-mile-an-hour zone. Gray first turned on his blue lights and then turned on his siren, but the driver made no attempt to stop. The driver turned onto Beare Street, slowed down a little bit, sped up, drove from side to side on the roadway, and turned onto Gum Street after failing to stop at a stop sign. The driver turned sharply into a driveway, at which point Gray expected him to bail out of the car and run. Gray got out of his vehicle and saw that the driver was struggling with the door. The driver moved to the passenger side, and Gray approached the door. Gray identified the driver as Thomas, whom he knew from previous occasions.

Officer Gray further testified that he kept his lights and siren on, and that his vehicle's spotlight was shining on the back window of Thomas's car. Gray carried his flashlight in a defensive mode, pointing it toward Thomas. Approaching the car, Gray saw Thomas lying across the seat with what appeared to be a piece of pipe in his hand. As Thomas raised up, Gray, who was opening the door, stopped and drew his weapon. Gray told Thomas to drop his weapon, and Thomas did so. There were various tools and other objects in the car.

Gray stated that he tried to get into the car, and that he reached in to take Thomas into custody. Thomas began to struggle in the front seat. Producing a weapon that Gray later found to be a tire tool, Thomas began striking Gray with it repeatedly. Gray felt an impact on his vest, and he was struck several other times. The two men ended up on the ground outside the driver's door, where Gray was struck again. Gray managed to get the tire tool away from Thomas, who then got up to run. The wrestling continued around the trunk of the car, almost directly in the spotlight from Gray's vehicle. Thomas's right hand came up, and Gray saw a blade "sticking out of the top of [Thomas's] hand where he had a knife in his hand." Gray dove backwards onto the ground, drawing his gun and firing once. Thomas, who apparently was not hit, ran around a house and scaled a chain-link fence. Gray's arm was "pretty much numb" by that time with limited movement and use, and he could not raise it to reach up and grab Thomas. Gray called for Thomas to stop, but he did not. A back-up unit arrived, but Thomas could not be located. A wrecker was called to impound the vehicle, and Gray found the tire tool on the ground outside the car.

Gray testified that he received medical treatment and had X-rays taken at Crittenden Memorial Hospital. He further testified:

I was placed in a sling for two days and I was to remain in that for two to three days. And I believe I was also off from work for three days. I had. . . when the bruises all came out, when you see them good a day and a half later, I guess, I had one bruise across my collarbone where my vest does not cover. I had a bruise across the front of my bicep. . . on my left arm that was directly across the top of the muscle. Also, my wrist was swollen from an injury there where I had been struck.

Gray said that he had problems with use of his left arm for two or three days. He said that he was given medication for pain. He described the pain as soreness from his bruises, similar to what is felt in a schoolboy's prank of being "frogged" or poked hard with a knuckle. Officer Gray testified that photographs taken of him after he left the hospital depicted a finger cut on his right hand, sustained during the altercation; a swollen wrist with a mark on it; and bruises on his shoulder, arm, face, and biceps. He also said that his dirty pants legs, as photographed, were a result of wrestling around with Thomas.

Officer Thomas Martin testified that he was dispatched to Gum Street on an officer-needing-assistance call. Martin stated that he never saw a pipe, knife, or crowbar, although he had heard Gray tell dispatch that he was being hit with a tire tool.

Thomas testified in his own defense, relating a version of events that differed considerably from that told by Officer Gray. Thomas testified that the police car followed him without turning on its light or siren. He said that he attempted to slide out the driver's door after he had stopped, and that Gray came to the passenger door. Thomas said that the tire tool was his but that he never picked it up, that he did not recall a piece of pipe, and that he had no knife in the car or on his person. He denied that he struck the officer, testifying that physical contact occurred only when Gray dove into Thomas's car and grabbed him by the neck. Thomas testified that he slipped away and ran, not knowing what Gray was going to do; and that Gray slipped and fell while chasing him.

Motion for Directed Verdict

A person commits battery in the second degree if he or she intentionally or knowingly, without legal justification, causes physical injury to one he knows to be a law enforcement officer while the officer is acting in the line of duty. Ark. Code Ann. § 5-13-202(4)(A)(i) (Supp. 2001). "Physical injury" means the (A) impairment of physical condition; (B) infliction of substantial pain; or (C) infliction of bruising, swelling, or visible marks associated with physical trauma. Ark. Code. Ann. §5-1-102(14) (Supp. 2001).

Thomas argued in his motions for a directed verdict, made at the close of the State's case-in-chief and at the close of all the evidence, that the officer's testimony was not credible, that there was no physical injury, and that there was no evidence that Thomas acted "knowingly." His arguments on appeal are directed to the credibility of Officer Gray's testimony and to evidence of physical injury. Thomas notes his own testimony that he did not strike Officer Gray, and he raises the possibility that Gray was injured by striking himself. He points to perceived inconsistencies in the testimony regarding how Gray fell, the extent of his injuries, and whether there was actually a tire tool, a pipe, or a knife at the scene. He complains that no explanation was offered as to how Gray could simultaneously hold a flashlight, talk on the radio, and fend off a vicious attack; and he characterizes the slight reddening of the skin as an unlikely result of being struck with a heavy tire tool. He concludes that it is impossible to preclude the officer's injuries being caused by his fall rather than by an attack with a tire tool.

It is well settled that a motion for a directed verdict is a challenge to the sufficiency of the evidence. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Id. Only evidence supporting the verdict will be considered. Id. Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Id. Reconciling conflicts in the testimony and weighing the evidence are matters within the exclusive province of the jury, and the jury's conclusion on credibility is binding on this court. Silverman v. State, 63 Ark. App. 94, 974 S.W.2d 484 (1998).

The evidence viewed in the light most favorable to appellee reveals that Thomas continued driving despite Officer Gray's attempts to pull him over in a marked police car, with blue lights and siren on. Thomas ran a stop sign, stopped in a driveway, stayed in his car, and picked up what appeared to be a piece of pipe. Gray reached into the car to apprehend Thomas, but Thomas struggled with him and repeatedly hit him with a tire tool. Thomas struck Gray again on the ground. The wrestling continued, and Gray saw the blade of a knife in Thomas's hand. Gray's arm was numb and of limited use after he had been hit with the tire tool and had wrestled with Thomas. Gray sustained a marked and swollen wrist, a slight cut to his finger, and bruising as a result of this physical encounter; furthermore, he wore a sling and was off work for two to three days, and he felt as if he had been "frogged" or poked hard.

To prove physical injury, the State was required only to prove impairment of physical condition, infliction of substantial pain, or infliction of bruising, swelling, or visible marks associated with physical trauma. Ark. Code Ann. § 5-1-102 (14) (Supp. 2001) (emphasis added). Here, Gray testified that his encounter with Thomas resulted in a marked and swollen wrist, a slight cut to his finger, and bruising. We have no hesitancy in finding that Gray suffered physical injury as a result of Thomas's hitting him with a tire tool and struggling with a person known to be a police officer acting in the line of duty. Thus, we hold that the evidence was sufficient to support the conviction of second-degree battery.

Motion in Limine

At the beginning of the penalty phase of the trial, the State moved in limine to exclude evidence that Thomas had served nine months in jail awaiting trial as not being relevant to the jury's determination of proper punishment. The trial court orally granted the motion, setting forth these reasons for ruling that the evidence was irrelevant:

First of all, there is nothing in the Model Jury Instructions that addresses that issue, and it's not contained in the jury instructions that the Court ought to allow that type of evidence. Second, in the relevant sentencing statute, I think it's 16-97-103. . . they give a litany of different issues, different items of relevant evidence, and telling the jury that is not listed. And finally, the Court finds this to be administrative whatever term of years he is given, if he is going to be given automatic credit for whatever amount of time he served in jail awaiting trial, that's mandated by statute by the Criminal Code, so he'd be given credit for that time anyway.

Under Ark. Code Ann. § 5-4-404 (Supp. 2001), a defendant held in custody for conduct that results in a sentence to imprisonment shall receive credit for the time spent in custody against the sentence. Thomas argues that the jury should have been informed of the nine-months' jail time that he had already served. He relies on the portion of Ark. Code Ann. § 16-97-103(1) (Supp. 2001) stating that evidence relevant to sentencing "may include, but is not limited to, . . . [t]he law applicable to parole, meritorious good time, or transfer." Conceding an absence of case law regarding the relevancy of pre-trial incarceration to sentencing, he proposes that the jury could have concluded that nine months was sufficient penalty for his crime had the jury been informed the he spent nine months in jail awaiting trial.

We note that the six-year sentence pronounced by the jury was the maximum penalty allowed for second-degree battery, and we agree with the State that, in light of the lack of mercy shown by the jury, Thomas makes an incredulous argument. We also note, as did the trial court, that although subsections of Ark. Code Ann. 16-97-103 list additional evidence that may be relevant to sentencing, jail-time credit is not mentioned. We hold that the trial court did not err in granting the State's motion in limine.

Affirmed.

Hart and Vaught, JJ., agree.