                                  Cite as 2015 Ark. App. 378

                 ARKANSAS COURT OF APPEALS
                                        DIVISION IV
                                       No.CR-14-1103

AARON KEITH HUGHES                                    Opinion Delivered   June 17, 2015
                                APPELLANT
                                                      APPEAL FROM THE HOT SPRING
V.                                                    COUNTY CIRCUIT COURT
                                                      [NO. 30CR-14-007-1]

STATE OF ARKANSAS                                     HONORABLE CHRIS E WILLIAMS,
                                  APPELLEE            JUDGE

                                                      AFFIRMED; MOTION TO
                                                      WITHDRAW GRANTED



                                BART F. VIRDEN, Judge


       On May 27, 2014, a Hot Spring County Circuit Court jury found Aaron Keith

Hughes guilty of second-degree domestic battery. He was sentenced to six years in the

Arkansas Department of Correction and was ordered to pay restitution in the amount of

$752.85. A judgment was filed on May 30, 2014, and a timely notice of appeal followed.

       Hughes’s attorney has filed a motion to be relieved as counsel and a no-merit brief

pursuant to Anders v. California, 386 U.S. 738, (1967), and Ark. Sup. Ct. R. 4-3(k) (2010),

in which counsel asserts that there is no issue of arguable merit to support an appeal. Counsel

provided his client with a copy of the motion and brief. Hughes did not file any pro se points

for reversal, and the State elected not to file a brief with our court.



                                              Facts
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       On May 25, 2014, immediately before the trial was set to begin, the circuit court held

a hearing to address Hughes’s request for a continuance. Hughes asserted that because he had

conditionally retained counsel of his choice, Shane Ethridge, to replace his appointed attorney,

Gregory Crain, he should be granted a continuance so that Ethridge could defend him on the

charge brought against him.1 Hughes stated that he could pay Ethridge $1500 if the

continuance was granted but that Ethridge had not been officially retained at that time.

Previously, Hughes had sworn an affidavit that he was indigent. The court denied Hughes’s

request.

       The trial took place immediately after the hearing. At the trial, the victim, Kyra

Zatarain, described the events of the evening of June 16, 2013. Zatarain testified that after

vacationing together in California, she and Hughes had arrived home, and she was cooking

dinner when Hughes’s cousin became ill in the bathroom. When Zatarain tried to assist

Hughes’s cousin, Hughes refused to allow Zatarain to help and then became very angry. She

testified that he pushed her up against the bathroom wall and choked her. Zatarain testified

that later that evening, as the argument continued outside in the carport, he choked her again

and then threw her against fence. She testified that she lost consciousness at some point in the

evening. She stated that when she went to the doctor the next day, she was immediately

transported to an orthopedic surgeon. She testified that her shoulder was injured so badly that

it required surgery where four inches of bone was removed and that she also had a broken



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Ethridge could not be present at the hearing on that day, but Hughes asserted Ethridge
would represent Hughes if a continuance was granted.

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arm. Zatarain testified that she also suffered cuts, bruises and damage to her esophagus from

Hughes strangling her and that she had permanent scars. At the time of trial, Zatarain was still

in physical therapy. She testified that she could not work because of her injuries, and she no

longer was able to play ball with her sons or participate in other normal activities. She testified

that she had not been able to drive for six months after the incident. Zatarain testified that she

also suffered emotional trauma and was in therapy for that as well.

       Zatarain’s son, seventeen-year-old Dakota Wilkinson, also testified. He stated that he

saw Hughes choke his mom after she tried to help Hughes’s cousin, and then later heard his

mother and Hughes arguing. Wilkinson testified that he heard a loud banging noise, and

when he went into his mom’s bedroom to check on her, the dresser was broken and his

mother was lying on the floor. He testified that when he reached his mother’s room, Hughes

walked away. He testified that his mother and Hughes argued again outside in the carport,

and while he was watching through the kitchen window, he saw his mother’s body hit the

a fence. He testified that he ran outside to help her, asked Hughes to leave their home, and

then put his mom in her bed. Wilkinson testified that shortly thereafter, his mother got out

of bed to talk to Hughes and that Hughes threatened them with violence if they sought help.

Wilkinson testified that Hughes then began to pack up his belongings, which took between

thirty and forty minutes. Wilkinson testified that he went back inside, and Zatarain and

Hughes were outside talking. He testified that was when he heard a gunshot and went outside

to check on them again. Wilkinson testified that Hughes said the gun had accidentally gone

off, and that he convinced Hughes it was time to leave because the police would probably be


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there soon to investigate. Wilkinson testified that Hughes left at that time.

          Ashlee Brown, a former coworker of Zatarain’s and former classmate of Hughes’s,

testified that during a conversation earlier that year Hughes recounted to her that he had

thrown a woman into a fence after they had gotten into an argument.

          At the end of the State’s presentation of evidence, and then again at the end of all of

the evidence, counsel for Hughes made a three-part motion for a directed verdict, challenging

the sufficiency of the evidence that Hughes caused Zatarain’s injury, that the injury was

serious, and that the he and Zatarain were in a dating relationship and cohabitating. The

motions were denied.

                              Standard of Review and Applicable Law

          A request to withdraw on the ground that the appeal is wholly without merit shall be

accompanied by a brief including an abstract and addendum. Ark. Sup. Ct. R. 4–3(k)(1). The

brief shall contain an argument section that consists of a list of all rulings adverse to the

defendant made by the circuit court on all objections, motions and requests made by either

party with an explanation as to why each adverse ruling is not a meritorious ground for

reversal. Id; see also Eads v. State, 74 Ark. App. 363, 47 S.W.3d 918 (2001). This framework

ensures that indigents are afforded their constitutional rights. Campbell v. State, 74 Ark. App.

277, 279, 47 S.W.3d 915, 917 (2001). In furtherance of the goal of protecting these

constitutional rights, it is the duty of both counsel and of this court to perform a full

examination of the proceedings as a whole to decide if an appeal would be wholly frivolous.

See id.


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                                 Continuance and New Counsel

       The first adverse ruling concerned Hughes’s request for a continuance in order to

retain different counsel. Whether to grant or deny a motion for continuance is within the

sound discretion of the trial court, and we will not reverse the court’s decision absent an abuse

of discretion amounting to a denial of justice. Anthony v. State, 339 Ark. 20, 22, 2 S.W.3d

780, 781 (1999). Additionally, appellant must show that he suffered prejudice as a result of the

denial of the motion: “To prevail in arguing for reversal on denial of a motion for a

continuance, a criminal defendant must show prejudice that amounts to a denial of justice.”

White v. State, 370 Ark. 284, 292, 259 S.W.3d 410, 416 (2007).

       Our supreme court has repeatedly held that a motion to change counsel is properly

treated as a motion for continuance since a change of attorneys so close to trial would require

the granting of one. Leggins v. State, 271 Ark. 616, 609 S.W.2d 76 (1980). The refusal to grant

a continuance in order for the defendant to change attorneys rests within the discretion of the

trial judge, and the decision will not be overturned absent a showing of abuse. Cooper v. State,

317 Ark. 485, 879 S.W.2d 405 (1994). The burden of establishing such abuse rests squarely

on the shoulders of the appellant. Leggins, supra; Edwards v. State, 321 Ark. 610, 615, 906

S.W.2d 310, 313 (1995).

       The circuit court found that not only had Ethridge not yet been retained as counsel,

the only evidence concerning Hughes’s ability to pay Ethridge was Hughes’s affidavit of

indigency filed on February 25, 2014, which heavily implied that Hughes was unable to pay

an attorney. The circuit court also noted that the request was made very late. It was the day


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of trial, that the jury had been called, and they were ready to proceed. Furthermore, Hughes

presented no evidence that he suffered prejudice resulting from the circuit court denying his

request for a continuance.

       Counsel’s brief adequately explains why this adverse ruling does not constitute a

meritorious ground for reversal.

                                   Sufficiency of the Evidence

       The second adverse ruling, a three-part motion for a directed verdict, concerned three

elements of Hughes’s second-degree domestic battery charge: that Hughes had intent to cause

injury, that the injury was serious and that there was a familial relationship between himself

and Zatarain. After a careful review of the abstract, addendum and record, we conclude that

any argument related to the sufficiency of the evidence would not form a meritorious basis

for appellate review, and we affirm.

       A motion for a directed verdict or dismissal 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 directed verdict, we look at the evidence in the light most favorable to the State. Darrough

v. State, 330 Ark. 808, 810, 957 S.W.2d 707, 708 (1997). The test for determining the

sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct

or circumstantial. Killian v. State, 60 Ark. App. 127, 959 S.W.2d 432 (1998). Evidence is

substantial when it is forceful enough to compel a conclusion and goes beyond mere

speculation or conjecture. Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998).




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                                   Intent to Cause the Injury

       The first element of the circuit court’s denial of the directed verdict concerns the

statutory requirement that Hughes had intent to cause physical injury. Arkansas Code

Annotated section 5-26-304(a)(1) (Repl. 2006) provides that a person commits domestic

battery in the second degree if, with the purpose of causing physical injury to a family or

household member the person causes serious injury to that person. Intent or state of mind is

seldom capable of proof by direct evidence and must usually be inferred from the

circumstances of the crime. Taylor v. State, 77 Ark. App. 144, 72 S.W.3d 882 (2002). A

presumption exists that a person intends the natural and probable consequence of his acts. Bell

v. State, 99 Ark. App. 300, 306, 259 S.W.3d 472, 476 (2007). A person acts purposely with

respect to his or her conduct or a result of his or her conduct when it is the person’s conscious

object to engage in conduct of that nature or to cause the result. Ark. Code Ann. § 5-2-

202(1) (Repl.2006).

       The testimony presented at the trial was sufficient to show Hughes’s intent to cause

injury. Zatarain testified she was thrown, choked, and hit by Hughes. Wilkinson also testified

that he saw his mother hitting the fence, and that he witnessed Hughes holding his mother

against the bathroom wall and again later against the brick wall with his hands around her

neck. Ashlee Brown testified that Hughes told her that he threw a woman into a fence after

arguing. Counsel’s brief adequately explains why this is not a meritorious ground for relief.

                                    Seriousness of the Injury

       The second aspect of the circuit court’s denial of the directed verdict concerns the


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statute’s requirement that Zatarain’s injuries be serious. Serious physical injury is defined 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. Ark. Code Ann. § 5-1-102(21) (Repl. 2006). Expert medical

testimony is not required to prove serious physical injury, as the finder of fact may use its

common knowledge to determine whether such injury occurred. Johnson v. State, 26 Ark.

App. 286, 764 S.W.2d 621 (1989). Similarly, it is not necessary that the impairment be

permanent, but merely protracted. See Britt v. State, 83 Ark. App. 117, 118 S.W.3d 140

(2003); Bell v. State, 99 Ark. App. 300, 305, 259 S.W.3d 472, 475 (2007).

       Zatarain was admitted to the hospital and had to have surgery resulting from her

injuries. At the time of trial, nearly a year after the night in question, she testified that she was

still in physical therapy because of the injuries she sustained and had not yet been able to

resume her normal life. Medical bills amounting to more than $12,000 and photographs that

confirm the seriousness of the injuries were admitted into evidence.

                                   Family or Household Member

       The third aspect of the circuit court’s denial of the directed verdict concerns the

requirement of the statute that there must be a familial relationship. Again, we find no

meritorious ground.

       In Arkansas Code Annotated section 5-26-302(2)(F) (Repl. 2006), the term “family

or household member” is defined as persons who presently or in the past have resided or

cohabited together. “Family or household member” also includes “Persons who are presently


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or in the past have been in a dating relationship together.” Ark. Code Ann. § 5-26-302

(2)(H). The definition of “dating relationship” is “a romantic or intimate social relationship

between two (2) individuals that is determined by examining the following factors: (i) The

length of the relationship; (ii) The type of the relationship . . .” Ark. Code Ann. §

5–26–302(1)(A)(I) and (ii).

       Substantial evidence supports the trial court’s denial of the directed verdict motion.

The fact that the parties dated for two-and-a-half weeks was uncontroverted. There was also

testimony from Zatarain’s son that it took time and effort to pack up all of Hughes’s things

from their home, heavily implying that he had at least partially moved in.

       After a full examination of the record under the proper standards, we hold that counsel

provided a compliant “no merit” brief demonstrating that an appeal would be wholly without

merit, and further, that counsel’s motion to be relieved should be granted.

       Affirmed; motion to withdraw granted.

       GLADWIN, C.J., and BROWN, J., agree.

       Gregory Crain, for appellant.

       No response.




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