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Banks v. State10/16/2003
Appellant Darryl Banks appeals the order of the Pulaski County Circuit Court convicting him of the felony charge of third-degree domestic battering, second offense, a violation of Ark. Code Ann. § 5-26-305 (Repl. 1997). On appeal, he argues that the twelve-year sentence imposed as a result of that conviction is illegal, because the proof adduced at trial established that he committed third-degree domestic battering, a misdemeanor. This case was certified to us from the Arkansas Court of Appeals as involving an issue of first impression and an issue requiring clarification or development of the law; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R.1-2(b)(1) and (5). We reverse and remand.
On the evening of November 11, 2001, Appellant approached his wife Stacy Banks in a nightclub and told her to go home. After she refused, Appellant approached her again, and both Appellant and his wife were asked to leave the club. Once at home, Appellant and Mrs. Banks began to argue, and Appellant then choked his wife and struck her in the face.
He then ran off. Mrs. Banks called 911 and police were dispatched to her home, where they took a statement from her. The next morning, Mrs. Banks tried talking with her husband, but he struck her again. She again called the police, who took a second statement from her and photographed her injuries. Those injuries included a busted lip, some bruising, and scratches around her eyes.
The State filed a felony information against Appellant on December 14, 2001, charging him with one count of domestic battering in the third degree, second offense. The information also alleged that Appellant was a habitual offender.
Appellant was tried before a jury in circuit court on June 26, 2002. Prior to the commencement of the trial, there was a discussion as to whether or not the State should introduce evidence of Appellant's prior conviction for domestic battering during the guilt phase of his trial or during the sentencing phase, if Appellant was found guilty. Ultimately, the trial court agreed that the prior conviction should be admitted during the sentencing phase of the trial for purposes of sentence enhancement.
Two witnesses testified on behalf of the State. First, Mrs. Banks testified regarding the events leading up to her injuries and the nature of her injuries. Also testifying was Officer Ivan Smith of the Little Rock Police Department. Officer Smith testified that on the evening of November 11, he received a call regarding an assault in progress at Appellant's residence. When the officer arrived, he noticed a man fitting Appellant's description running along the wood line next to the trailer park where Appellant and his wife lived. Smith made contact with Appellant and took him into custody. Appellant told Smith that he had been asleep on the couch when his wife came in and started hitting him in the chest. Appellant claimed that he left his residence before he got mad and hit his wife. Smith drove Appellant back to his residence and found Mrs. Banks suffering from a swollen lip and bruised right eye. Smith testified that Mrs. Banks was very upset and crying when he arrived at the residence.
Following the testimony of Smith, the State rested its case. Appellant moved for a directed verdict, arguing that the State failed to show that Mrs. Banks suffered any physical injury. The motion was denied. The defense then rested without presenting any evidence. Appellant's directed-verdict motion was renewed and again denied. The case was then submitted to the jury, which returned a verdict of guilty.
Following the rendering of the guilty verdict, the State introduced into evidence the prior misdemeanor con
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