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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
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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 “§ 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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