                                Cite as 2014 Ark. App. 122

                ARKANSAS COURT OF APPEALS
                                       DIVISION I
                                      No. CR-13-225


                                                 Opinion Delivered   February 19, 2014

SHAUN LAMOND WASHINGTON                          APPEAL FROM THE PULASKI
                  APPELLANT                      COUNTY CIRCUIT COURT,
                                                 SECOND DIVISION
V.                                               [NO. CR2012-857]

                                                 HONORABLE CHRISTOPHER
STATE OF ARKANSAS                                CHARLES PIAZZA, JUDGE
                              APPELLEE
                                                 REVERSED AND REMANDED



                             BILL H. WALMSLEY, Judge

       A Pulaski County jury found appellant Shaun Lamond Washington guilty of first-

degree battery of his girlfriend’s infant daughter M.D. (DOB: 01-07-2012), and he was

sentenced to ten years’ imprisonment. Washington argues that the trial court abused its

discretion in denying his request to instruct the jury on third-degree battery. Because there

was some evidence to support such instruction, we reverse and remand.

       The evidence showed that on February 17, 2012, around 9:30 p.m., Shayla Dowd left

M.D., along with her three-year-old son X.H., with Washington so that she could celebrate

her birthday with a friend. Around noon on the following day, Dowd had not returned. Patsy

Moore, Dowd’s mother, arrived at Dowd’s apartment to visit her grandchildren and

discovered that M.D. was barely breathing. Washington explained that, just prior to Moore’s

arrival, M.D. had vomited after being fed and then she suddenly became limp. Moore told
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Washington to call 911. On the way to Arkansas Children’s Hospital (ACH), a paramedic

asked Washington about a bruise on M.D.’s forehead. Washington claimed that X.H. might

have hit the baby with a toy truck the previous night.

       Dr. Maria Theresa Esqueveil, a pediatrician at ACH, testified that M.D. displayed

symptoms of having had a seizure, and x-rays later revealed that she had a fractured skull and

intracranial bleeding. Dr. Esqueveil testified that it was not a simple linear fracture, but rather

was split open, leaving a gap in the baby’s head. M.D. also had extensive retinal

hemorrhaging. Moreover, M.D. had three small bruises above her right eyebrow, a bruise

under her left eye, bruises on her left knee and thigh, bruises on the rims of both ears and

back part of her left ear, and two bruises on her back. In addition, both of M.D.’s hands were

swollen, and she had bruises on the backs of her hands. There was a small laceration on

M.D.’s lip, and she had bruising under her tongue. Dr. Esqueveil testified that the only

explanation Washington gave her for M.D.’s fractured skull was that X.H. might have struck

the baby on the head with his toy truck.

       There was evidence that, when interviewed by an investigator with the Arkansas State

Police, Washington offered innocent explanations for all the bruises and injuries sustained by

M.D. and stated that her skull was possibly fractured by X.H.’s hitting her with a toy truck

he had been throwing into the air. Washington admitted cutting M.D.’s lip and possibly

bruising her back and hands in connection with his efforts to resuscitate her.

       The jury heard evidence that Washington subsequently told detectives with the Little

Rock Police Department that M.D. had vomited after being fed, her eyes had rolled back into


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her head, and, when her body suddenly stiffened in his arms, she slipped out of his hands and

hit her head on the floor. Washington explained that he had been sitting on the bed cleaning

vomit off the baby when he dropped her from a height of about four feet. Washington stated

that he had accidentally backhanded M.D. when he rolled over in bed but later conceded that

he might have been frustrated with her crying while he was trying to sleep. Washington also

told detectives that the bruises on M.D.’s leg were likely the result of his playfully “tugging”

and “tapping” on her thigh “maybe twenty-five times.”

       In her testimony, Dowd offered innocent explanations for various bruises on M.D.’s

body that she claimed were present before February 17, 2012. Dowd insisted that she would

not still be with Washington if she believed that he had purposely hurt her baby.

       Washington testified that he had been with M.D. since she was born.1 Washington

stated that, around noon on February 18, 2012, M.D. vomited after she was fed. He testified

that, while cleaning up the vomit, M.D.’s head was cupped in his hand and her body was

resting on his left leg. According to Washington, as he was turning to the side of the bed,

M.D. suddenly jerked causing her to slip out of his arms. Washington testified that M.D. fell

from the edge of the mattress to the floor and that he did not realize that M.D.’s skull had

been fractured by the fall. He claimed that he did not initially admit to dropping M.D.

because he did not want Dowd’s family to think that he could not care for a newborn.

Washington testified that he did not intentionally backhand, drop, or otherwise hit M.D.

       Dr. John Gilbert Galaznik, a pediatrician, testified for the defense that dropping an


       1
           M.D. is not Washington’s biological child.

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infant on her head from a height of two to three feet could result in a fractured skull and that

a fall from a height of three to four feet would be “more than adequate” to cause skull

fracturing, subdural bleeding, retinal hemorrhages, and seizures. In its case in chief, the State

had offered evidence to the contrary. In her direct examination, Dr. Esqueveil testified that

it was “very unlikely” that M.D.’s head injury could have been caused by a single fall from

a sitting position. She described M.D.’s injuries as “abusive head trauma.” Also, Dr. Leann

Linam, a pediatric radiologist at ACH, testified that a fracture as widely separated as M.D.’s

had to have resulted from a significant, high-impact force, such as from a motor-vehicle

accident or a fall from a second-story window.

       Washington was charged with and found guilty of first-degree battery under Ark. Code

Ann. § 5-13-201(a)(9) (Supp. 2011), which provides that a person commits first-degree

battery when he knowingly causes serious physical injury to any person four years of age or

younger under circumstances manifesting extreme indifference to the value of human life. A

person acts “knowingly” with respect to a result of the person’s conduct when he is aware

that it is practically certain that his conduct will cause the result. Ark. Code Ann. § 5-2-202(2)

(Repl. 2006). First-degree battery under section 5-13-201(a)(9) is a Class Y felony, Ark. Code

Ann. § 5-13-201(c)(2), punishable by imprisonment of not less than ten and not more than

forty years, or life. Ark. Code Ann. § 5-4-401(a)(1) (Repl. 2006).

       The trial court refused Washington’s request for an instruction on third-degree battery

under Ark. Code Ann. § 5-13-203(a)(2) (Repl. 2006), which provides that a person commits

third-degree battery when he recklessly causes physical injury to another person. A person acts


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“recklessly” with respect to attendant circumstances or a result of his conduct when the

person consciously disregards a substantial and unjustifiable risk that the attendant

circumstances exist or the result will occur. Ark. Code Ann. § 5-2-202(3)(A). The risk must

be of a nature and degree that disregard of the risk constitutes a gross deviation from the

standard of care that a reasonable person would observe in the actor’s situation. Ark. Code

Ann. § 5-2-202(3)(B).

       A defendant may be convicted of one offense included in another offense with which

he is charged. Ark. Code Ann. § 5-1-110(b) (Supp. 2011). An offense is included in an offense

charged if the offense: (1) is established by proof of the same or less than all of the elements

required to establish the commission of the offense charged, . . . or (3) differs from the offense

charged only in the respect that a less serious injury or risk of injury or a lesser kind of

culpable mental state suffices to establish the offense’s commission. Ark. Code Ann. § 5-1-

110(b)(1), (3).

       Our supreme court zealously protects the right of an accused to have the jury

instructed on a lesser-included offense, and it is reversible error to refuse to give an instruction

on a lesser-included offense when the instruction is supported by even the slightest evidence.

Webb v. State, 2012 Ark. 64. If, after viewing the facts in the light most favorable to appellant,

no rational basis for a verdict acquitting him of the greater offense and convicting him of the

lesser one can be found, it is not error for the trial court to refuse to give an instruction on

the lesser-included offense. Davis v. State, 97 Ark. App. 6, 242 S.W.3d 630 (2006). A trial

court’s ruling on whether to submit jury instructions will not be reversed absent an abuse of


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discretion. Id.

       Washington argues that the jury could have concluded that he recklessly caused M.D.’s

injuries.2 We agree that there was evidence presented by the defense that would support an

instruction on third-degree battery.

       While M.D.’s physical injury was undoubtedly a serious one, Washington testified that

he did not mean to drop M.D. on her head and that it was an accident. Moreover, an expert

offered his opinion that a baby’s skull could be fractured by a fall such as the one described

by Washington. Viewing this evidence in the light most favorable to Washington, there was

“even the slightest evidence” from which a jury could have found that Washington acted with

less than a knowing mental state. We hold that, under these circumstances, the trial court

abused its discretion in failing to instruct the jury on third-degree battery.

       Reversed and remanded.

       PITTMAN and HIXSON, JJ., agree.

       Lisa Thompson, Deputy Public Defender, by: Clint Miller, Deputy Public Defender, for

appellant.

       Dustin McDaniel, Att’y Gen., by: Laura Shue, Ass’t Att’y Gen., for appellee.




       2
        Washington also argues that there are conflicting precedents and that Ark. Code Ann.
§ 5-1-110(b)(3) has been misinterpreted. We do not address these arguments other than to
point out that Washington did not raise them before the trial court. This court will not
consider arguments raised for the first time on appeal, and a party is bound on appeal by the
nature and scope of the arguments presented at trial. Reed v. State, 2011 Ark. App. 352, 383
S.W.3d 881.

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