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ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-16-762
Opinion Delivered March 1, 2017
GEORGE WESLEY BATES, JR. APPEAL FROM THE POINSETT
APPELLANT COUNTY CIRCUIT COURT
[NO. 56CR-16-92]
V.
HONORABLE JOHN N. FOGLEMAN,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
LARRY D. VAUGHT, Judge
Appellant George Bates appeals his conviction by the Circuit Court of Poinsett County
of domestic battering in the third degree. We affirm.
At the bench trial, the victim, Karen Goans, testified that she had lived with Bates for
eleven years prior to an incident in January 2016 that resulted in her hospitalization. However,
she denied that the hospitalization was due to injuries inflicted by Bates, stating instead that
she had “messed up on [her] pills” and awakened in the hospital. She denied having suffered
any head trauma but admitted that she had “a hole in [her] lung.” She testified that, for the
past three months, she had lived with her mother in Cherry Valley but now lives on her own
in Wynne.
Karen’s adult daughter, Jamie Lewis, testified that Bates was her mother’s “ex-
boyfriend or current boyfriend.” Jamie testified that, in January 2016, her mother was in the
hospital in a coma for four days. Jamie stated that she and other family members walked in to
Cite as 2017 Ark. App. 123
her mother’s hospital room as her mother woke up from the coma. She testified that when
Karen’s mother went to Karen’s bedside, Karen began to cry. At that point, the testimony
drew a hearsay objection, to which the State argued that the testimony it was about to elicit
qualified as an excited utterance or present-sense-impression exception to the hearsay rule.
The court said it needed to hear more to decide the issue and allowed the State to
continue with its line of questioning. Jamie testified that she and four other people were there
as her mother began regaining her consciousness and started to cry. They all went to her
bedside to hug her, and Karen said to her mother “He did this to me, he did this to me.” Jamie
then testified, “[A]nd when we said, ‘Who?’ She said, ‘George Bates. George did this to me.
He beat me. He put me here, momma, he did this.’” She stated that they then went to the
nurse’s desk and asked that Bates not be allowed to see Karen. Bates’s attorney again objected
that the statement was inadmissible hearsay. He argued that it didn’t qualify as an exception
to the hearsay rule because it was made days after the alleged beating. After a brief exchange
regarding the law related to the excited-utterance exception, the court permitted Bates’s
attorney to voir dire the witness. During voir dire and follow-up questioning, Jamie testified
inconsistently about how long her mother had been awake before she spoke, what exactly she
said, and whether it was in response to questioning. Ultimately, the court admitted Jamie’s
initial testimony (“He did this to me, he did this to me.” “Who?” “George did this to me.”) as
an excited utterance but excluded the remainder of Jamie’s testimony regarding her mother’s
description of how Bates had caused her injuries.
Detective Joey Martin of the Poinsett County Sheriff’s Department testified that he
had responded to a call at St. Bernard’s Hospital and investigated Karen’s injuries. He was
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unclear of the date she was admitted but said he arrived to investigate on January 5, 2016. He
spoke to Jamie Lewis as part of his investigation, although the court ruled that any of Jamie’s
statements to the detective were inadmissible hearsay and could not be introduced to establish
the truth of the matter asserted. The court allowed Detective Martin to testify to Jamie’s
statement but ruled that the testimony would be considered only to explain the detective’s
steps in investigating.
Detective Martin offered a recording of Karen’s statement given at the hospital
regarding the cause of her injuries. Following a hearsay objection, the State argued that it
should be admitted for the limited purpose of impeaching Karen’s testimony, which the court
allowed. In the recording, Karen told Detective Martin that Bates had pushed her off the
porch, causing her to hit her head. Detective Martin testified that when he met Karen in the
hospital, she was in a significant amount of pain, had trouble breathing, and was hooked up
to an IV.
Bates made a motion for directed verdict, arguing that the evidence was insufficient to
support a conviction and that the court erred in admitting the part of Karen’s statement in
which she identified Bates by name. The State responded, in part, by reciting Karen’s
statements that Bates had pushed her off the porch and kicked her. The court noted that it
had excluded that testimony for purposes other than impeachment. However, the court denied
the motion for directed verdict, stating that it had properly admitted the initial excited-
utterance exchange, including the identification of Bates, and that the evidence was sufficient
to go forward. The defense then rested and renewed its motion. This time the defense also
argued that the State had failed to establish that Poinsett County had jurisdiction over the case.
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The court again denied the motion. When the jurisdiction issue was raised again in closing
arguments, the court reviewed the record and the case law, and ruled that it had jurisdiction
to hear the case because the defense had not presented any affirmative evidence that the crime
had been committed elsewhere.
The court found Bates guilty of domestic battering in the third degree 1 and sentenced
him to six months in the county jail followed by six months’ suspended imposition of sentence
(SIS). During the SIS, Bates was ordered to have no contact with Karen and to attend anger-
management classes. This timely appeal followed.
Bates’s first point on appeal is a challenge to the sufficiency of the evidence. In
reviewing a challenge to the sufficiency of the evidence in a criminal bench trial, this court
determines whether the verdict is supported by substantial evidence, direct or circumstantial.
Stevenson v. State, 2013 Ark. 100, 426 S.W.3d 416. Substantial evidence is evidence forceful
enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id., 426
S.W.3d 416. This court views the evidence in the light most favorable to the verdict, and only
evidence supporting the verdict will be considered. Id., 426 S.W.3d 416.
A person commits domestic battering in the third degree if, with the purpose of causing
physical injury to a family or household member, the person causes physical injury to a family
or household member. Ark. Code Ann. § 5-26-305(a)(1) (Supp. 2015). Domestic battering in
the third degree is a Class A misdemeanor. Ark. Code Ann. § 5-26-305(b)(1). Physical injury
is defined as impairment of the victim’s physical condition, infliction of substantial pain, or
1Bates was initially charged with domestic battering in the second degree, but the court
reduced it to the lesser-included offense of third-degree domestic battering.
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infliction of bruising, swelling, or a visible mark associated with physical trauma. Ark. Code
Ann. § 5-1-102(14)(A)–(C).
In this case, there was sufficient evidence of each element. Karen and Bates had lived
together for approximately eleven years, making Karen a “household member” under the
statute. Karen was injured to the point of being in a coma for several days. Although the court
was not presented with specific medical evidence as to her injures, the testimony revealed that
they were severe enough to require hospitalization. Detective Martin testified that Karen was
in a significant amount of pain when he spoke with her in the hospital and that she was having
trouble breathing. Finally, the court admitted Jamie’s testimony that Karen identified Bates as
the person who had caused her injuries. 2 The court’s verdict convicting Bates of third-degree
domestic battering was therefore supported by substantial evidence.
Bates’s second argument is that the court lacked jurisdiction because there was
insufficient evidence that the events in question took place in Poinsett County. 3 However, the
Arkansas Supreme Court held in Dix v. State, 290 Ark. 28, 32, 715 S.W.2d 879, 881 (1986), that
“[t]he State need not prove jurisdiction, . . . unless evidence is admitted that affirmatively
shows that the court lacks jurisdiction.” “Before the State is called upon to offer any evidence
2Although Bates contends on appeal that this testimony was erroneously admitted as
an excited utterance, in reviewing sufficiency we consider all evidence, whether it was admitted
correctly or erroneously. Boyd v. State, 2016 Ark. App. 407, at 8, 500 S.W.3d 772, 778 (citing
Eichelberger v. State, 323 Ark. 551, 916 S.W.2d 109 (1996)).
3We note that, while Bates’s argument may more accurately be understood as a
challenge to venue rather than jurisdiction, the analysis is the same. In Lewis v. State, 2016 Ark.
App. 257, 492 S.W.3d 538, we treated an identical argument as one challenging both
jurisdiction and venue and relied on Ark. Code Ann. § 5-1-111(b) in holding that the State “is
not required to prove jurisdiction or venue unless evidence is admitted that affirmatively shows
that the court lacks jurisdiction or venue.” Lewis, 2016 Ark. App. 257, at 2, 492 S.W.3d at 540.
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on the question of jurisdiction, there must be positive evidence that the offense occurred
outside the jurisdiction of the court.” Id. at 32, 715 S.W.2d at 881. Moreover, our supreme
court has noted that Ҥ 5-1-111(b) created a presumption in favor of jurisdiction in the place
where the charge is filed by the State.” Cates v. State, 329 Ark. 585, 589, 952 S.W.2d 135, 137
(1997) (citing Higgins v. State, 317 Ark. 555, 558, 879 S.W.2d 424, 425 (1994)). There is no
requirement that the State offer proof of jurisdiction unless there has been a showing of
positive evidence that the offense occurred outside the court’s jurisdiction. Smith v. State, 367
Ark. 274, 284, 239 S.W.3d 494, 502 (2006) (citing Findley v. State, 307 Ark. 53, 818 S.W.2d 242
(1991)); DeWitt v. State, 306 Ark. 559, 561, 815 S.W.2d 942, 943–44 (1991). Positive evidence
consists of something allowing the fact-finder to identify, based on the record, where the crime
occurred. Dix, 290 Ark. at 32, 715 S.W.2d at 881. Here, although Bates called jurisdiction into
question, he never presented the trial court with any affirmative evidence that the crime took
place outside Poinsett County. This case is directly controlled by Dix; therefore, we affirm on
this point.
Bates’s final point on appeal is that the court erred in admitting into evidence Jamie’s
testimony that, on awakening from a coma, Karen identified Bates as the person who had
caused her injuries. Bates argues that the statement should not qualify as an excited utterance
because it was too remote in time from the event in question and that the portion of the
statement naming Bates had been made in response to a question. Matters pertaining to the
admissibility of evidence are left to the sound discretion of the trial court, and this court will
not reverse absent an abuse of discretion. See Washington v. State, 2010 Ark. App. 596, at 8, 377
S.W.3d 518, 522.
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Although hearsay is generally not admissible pursuant to Rule 802 of the Arkansas
Rules of Evidence (2016), “[a] statement relating to a startling event or condition made while
the declarant was under the stress of excitement caused by the event or condition” is
admissible as an excited utterance under Rule 803(2). Whether a declarant makes statements
in response to questions is not dispositive of whether they are the product of the exciting
event. Lewis v. State, 74 Ark. App. 61, 66, 48 S.W.3d 535, 538 (2001). The relevant inquiry is
whether the statement was made under the stress of excitement or was made after the declarant
calmed down and had an opportunity to reflect, which is a matter within the circuit court’s
sound discretion. Fudge v. State, 341 Ark. 759, 769, 20 S.W.3d 315, 320 (2000). Admissibility is
not to be measured by any precise number of minutes, hours, or days, but requires that the
declarant is still under the stress and excitement caused by the event. Pennington v. State, 24 Ark.
App. 70, 74, 749 S.W.2d 680, 682 (1988).
It is clear from the record before us that the circuit court did not abuse its discretion
in admitting a small portion of Jamie’s testimony as an excited utterance. The court carefully
considered the circumstances surrounding the statement, including the facts that Karen made
the statement immediately upon regaining consciousness after the attack, made it while crying
and while in physical pain from her injuries, and initially volunteered the information without
prompting. 4 To the extent that Bates argues that Jamie’s testimony regarding her mother’s
statements was inconsistent, we note that the court, as the trier of fact in a bench trial, is free
to believe all or part of a witness’s testimony and may resolve questions of conflicting
4Although Karen’s family asked her to clarify to whom she was referring in her
statement that “he did this to me,” we affirm the circuit court’s finding that the entire exchange
was an excited utterance.
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testimony and inconsistent evidence. Lowe v. State, 2016 Ark. App. 389, at 3, 500 S.W.3d 176,
178. Further, the court excluded much of Jamie’s testimony about what her mother said after
the initial outburst, admitting only the portion of her statements that qualified under Rule 803.
We affirm.
Affirmed.
WHITEAKER and MURPHY, JJ., agree.
Chet Dunlap, for appellant.
Leslie Rutledge, Att’y Gen., by: Ashley Priest, Ass’t Att’y Gen., for appellee.
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