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                   ARKANSAS COURT OF APPEALS
                                        DIVISION IV
                                        No. CR-16-718




                                                 Opinion Delivered: February   1, 2017
DEION JOHNSON
                                 APPELLANT APPEAL FROM THE GARLAND
                                           COUNTY CIRCUIT COURT
                                           [NO. 26CR-14-617]
V.

STATE OF ARKANSAS                           HONORABLE JOHN HOMER
                                   APPELLEE WRIGHT, JUDGE
                                                 AFFIRMED



                                  MIKE MURPHY, Judge

       Appellant Deion Johnson brings this appeal from his convictions for unlawful

 discharge of a firearm from a motor vehicle and battery. 1 On appeal, Johnson contends that

 sufficient evidence did not support his two convictions. We disagree and affirm.

       This case stems from Johnson shooting Tracy Samuels three times. A month or so

 before this incident, Johnson had taken Samuels’s dog from his yard because he wanted to

 keep it for himself. A few days later, Samuels approached Johnson and got his dog back

 amicably. Between that day and the day of the shooting, Johnson and Samuels did not have

 any contact.




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           He does not contest his conviction of one count of fleeing.
                                  Cite as 2017 Ark. App. 71

       On the day of the shooting, Johnson and his girlfriend drove to Samuels’s home.

Upset that his dog had miscarried puppies after having been in Johnson’s care, Samuels

began to approach Johnson’s car. The two exchanged a couple of obscenities, and Samuels

began to retreat to his home until Johnson said, “We could handle this right now.” Samuels

turned around from the door toward the street and approached the vehicle. Johnson then

opened his door and fired a gun from his vehicle. Samuels testified that Johnson shot him

in the head, neck, and chest. Knowing that his arrest was imminent, Johnson then sped off

and fled from officers, but the officers eventually apprehended him.

       The jury found Johnson guilty of unlawful discharge of a firearm from a vehicle in

the first degree, battery in the first degree, and fleeing. Johnson timely appealed his

convictions of unlawful discharge of a firearm and battery in the first degree, alleging that

the State did not put forth sufficient proof that the victim had sustained serious physical

injuries.

       On appeal, a motion for directed verdict is treated as a challenge to the sufficiency

of the evidence. See Reynolds v. State, 2016 Ark. 214, at 3, 492 S.W.3d 491, 494. This court

views the evidence in the light most favorable to the State and affirms if there is substantial

evidence to support the verdict. Id. Substantial evidence is that which is of sufficient force

and character that it will, with reasonable certainty, compel a conclusion one way or the

other, without resorting to speculation or conjecture. Id. This court does not weigh the

evidence presented at trial or assess the credibility of the witnesses, as those are matters for

the fact-finder. Id. The trier of fact is free to believe all or part of any witness’s testimony

and may resolve questions of conflicting testimony and inconsistent evidence. Id.


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         Unlawful discharge of a firearm from a vehicle in the first degree, as charged in this

case, is to knowingly discharge a firearm from a vehicle and by the discharge of the firearm

causes death or serious physical injury to another person. Ark. Code Ann. § 5-74-107 (Repl.

2016). First-degree battery, also as charged in this case, is to knowingly cause serious physical

injury to any person by means of a deadly weapon. Ark. Code Ann. § 5-13-201 (Repl.

2013).

         As required by both of the above definitions, a serious physical injury is defined as a

“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). Whether a person has suffered

serious physical injury is ordinarily an issue for the trier of fact. Williamson, 2011 Ark. App.

73, at 3–4, 381 S.W.3d at 137; Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). It is

not necessary that the impairment be permanent, but only protracted. See Bell v. State, 99

Ark. App. 300, 259 S.W.3d 472 (2007). And the fact that the victim ultimately recovers has

no bearing on whether the injury sustained is serious. Brown v. State, 347 Ark. 308, 65

S.W.3d 394 (2001). Moreover, 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. See Hughes v. State, 2015 Ark. App. 378, at 8, 467 S.W.3d 170, 175;

see also Johnson v. State, 26 Ark. App. 286, 764 S.W.2d 621 (1989) (the court held that

although no medical testimony was presented describing technical aspects of police officer’s

injury, nonmedical testimony was sufficient to demonstrate that police officer victim had

incurred serious physical injury within meaning of first-degree battery statute).


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       Appellant argues that the State did not provide sufficient evidence to prove the shared

element of serious physical injury. We disagree.

       Samuels testified that he had sustained three gunshot wounds. He stated that one

bullet hit his diaphragm, his liver, and his intestines, and that he lost a kidney as a result of

the gunshot wounds. He testified that medical staff at the hospital had cut his chest open

and packed it with gauze in an effort to stop his liver from bleeding. He also testified that

medical personnel cut part of his intestines, removed pieces of his kidney, deflated his lungs,

and sewed his diaphragm back together. Samuels spent multiple days at the hospital. He

testified that he continues to get an infection where his kidney used to be and that as a result

he has to take antibiotics and had to have drainage tubes placed in his body.

       Johnson claims that the State failed to offer any testimony from anyone in the medical

field regarding Samuels’s injuries. However, the State was not required to call any medical

experts to prove serious physical injury. Hughes, supra. It was the jury’s duty as fact-finders

to determine whether Samuels had suffered serious physical injury.

       The following evidence supports both of Johnson’s convictions: Samuels’s testimony

that he received three gunshot wounds, was hospitalized, lost a kidney, and suffered further

infections as a result of the wound; Samuels’s brother’s testimony that he was outside, heard

the gunshots, and then saw blood on his brother; and the multiple photographs of the

wounds introduced as exhibits and a photo of the blood stains on the roadway.

Furthermore, Arkansas Code Annotated section 5-1-102(21) only requires that the physical

injury cause protracted impairment of health generally. Samuels’s testimony of the

complications that resulted in infection and required him to return to the hospital, receive


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antibiotics, and have drainage tubes placed in his body is sufficient evidence that his injury

caused protracted impairment of his health.

       Because the State presented substantial evidence from which the fact-finder could

find first-degree battery and first-degree unlawful discharge of a firearm from a vehicle, the

circuit court did not err by denying his motions for a directed verdict. Affirmed.

       ABRAMSON and GLOVER, JJ., agree.

       Buckley, McLemore & Hudson, P.A., by: Grace Casteel, for appellant.

       Leslie Rutledge, Att’y Gen., by: Amanda Jegley, Ass’t Att’y Gen., for appellee.




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