{
  "id": 1742292,
  "name": "Daniel Elmer LUM v. STATE of Arkansas",
  "name_abbreviation": "Lum v. State",
  "decision_date": "1984-03-05",
  "docket_number": "CR 84-20",
  "first_page": "495",
  "last_page": "500",
  "citations": [
    {
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      "cite": "281 Ark. 495"
    },
    {
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      "cite": "665 S.W.2d 265"
    }
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  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
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      "reporter": "Ark.",
      "case_ids": [
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      "year": 1977,
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      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1616763
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      "weight": 3,
      "year": 1976,
      "opinion_index": 0,
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    {
      "cite": "269 Ark. 119",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1712552
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      "weight": 2,
      "year": 1980,
      "opinion_index": 0,
      "case_paths": [
        "/ark/269/0119-01"
      ]
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    {
      "cite": "255 Ark. 23",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8717403
      ],
      "weight": 2,
      "year": 1973,
      "opinion_index": 0,
      "case_paths": [
        "/ark/255/0023-01"
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  "last_updated": "2023-07-14T16:39:06.319855+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Daniel Elmer LUM v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "Steele Hays, Justice.\nAppellant Daniel Lum, was charged with the offense of battery in the first degree of Annette Mautz under Ark. Stat. Ann. \u00a7 41-1601 (1) (c). He was tried before a jury, found guilty of battery in the second degree and sentenced to six years. Appellant raises three points for reversal, none of which have merit.\nThere is no dispute as to the facts of the case, and the appellant himself testified, describing the battery and the surrounding circumstances. Appellant had been living with Debbie Hamm for about one year and Annette Mautz, Debbie\u2019s younger sister, had persuaded Debbie to move out of Lum\u2019s apartment. Later that day, Lum saw Annette in her car with her children and Debbie. Lum described what happened:\nI\u2019m not really disputing any of the facts that have been brought out here today.... I come out by the car there, I looked in there and seen Annette. I opened the door and told that she was going to get her ass whupped (sic) . . . and then I caught her by the hair of the head, pulled her over to the side and hit her three times. I hit her with my balled up fist. ... I am six foot three inches in height and weigh 200 pounds . . . I was mad and I think I had a right to be mad. I lost control of my temper. Annette didn\u2019t have a gun or knife or anything. She didn\u2019t threaten me in any way. I hit her three times in the face. All three times were in the same place. I pulled her over by the hair of the head.\nThe victim\u2019s husband saw his wife immediately after the beating and testified that \u201cthe right side of her head was swollen from the top of her head down to her neck, terribly, and she had blood coming out of her right eye, coming out of her nostrils, coming out of her mouth and coming out of her right ear.\u201d The victim\u2019s twelve-year-old daughter was watching as Lum struck her mother and testified that \u201cshe had blood coming out her eye and her nose and her mouth and it was over her clothes, the car seat, steering wheel and all in her hair.\u201d The victim was hospitalized for five days. Her physician testified in detail to the extent and nature of her injuries. She had suffered fractures in three areas of her face \u2014 the area surrounding the right eye socket, the sinus wall and the cheekbone. Holes were drilled in the honey area near the eye socket and nasal passages to allow for the wiring together of the cheekbone area. She had impaired vision for approximately two weeks, two months of pain, six weeks of medical supervision and continues to lack some feeling in the right side of her face.\nAppellant\u2019s first two arguments address essentially the same issue and we will deal with them together. At the close of the State\u2019s case, the appellant moved for a directed verdict on the grounds that there was insufficient evidence of a \u201cserious physical injury\u201d as required by \u00a7 41-1601 (l)(c), which reads:\nA person commits battery in the first degree if: he causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life.\nThe motion was denied. Appellant was subsequently found guilty of battery in the second degree under \u00a7 41-1602 (1) (a):\nA person commits battery in the second degree if: with the purpose of causing physical injury to another person, he causes serious physical injury to any person.\nAppellant argues that there was insufficient evidence to support the jury\u2019s finding that appellant caused \u201cserious physical injury.\u201d\nA directed verdict is given only in cases where no issues of fact exist and the court reviews the evidence in the light most favorable to the appellee. Burks v. State, 255 Ark. 23, 498 S.W.2d 336 (1973). In determining the sufficiency of the evidence the court must determine whether there is substantial evidence to support the verdict \u2014 evidence that is forceful enough to compel a conclusion one way or another beyond suspicion and conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).\nSerious physical injury is defined in \u00a7 41-115 (19):\n\u201cSerious physical injury\u201d means 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.\nIn Harmon v. State, 260 Ark. 665, 543 S.W.2d 43 (1976) the appellant raised the same argument surrounding the nature of a \u201cserious physical injury.\u201d In that case the victim \u201csuffered a broken leg, a fractured toe, bruised heel and pelvis. He was hospitalized for about a month and was in a leg cast and traction for two or three weeks during this time. He was walking with crutches at the time of the trial about a month and a half after the offense.\u201d We cited \u00a7 41-115 (19) and concluded:\nWe cannot say as a matter of law, that a fact question did not exist as to whether the victim\u2019s injuries constituted a \u201cprotracted impairment of the function of any bodily member or organ.\u201d Webster\u2019s Third New International Dictionary defines \u201cprotract\u201d as \u201cto continue, prolong, lengthen in time.\u201d It was for the jury to resolve the issue as to whether the injuries constituted a temporary or protracted impairment.\nWe cannot say that under the evidence presented to the jury, and comparing the two cases that the trial court could find that there was no issue of fact, or the evidence insufficient to support a finding of serious physical injury.\nAppellant\u2019s third assignment of error is that \u00a7 41-115 (19) defining \u201cserious physical injury\u201d is vague and overbroad and sets no clear standard for the regulation of conduct resulting in physical injury. Appellant argues that since common understanding and practice applies a different connotation to this phrase than legislative intent, it creates an ambiguity and confusion in application. In Harmon, supra the appellant was challenging the requisite elements of \u00a7 41-1602 (l)(d) on the same grounds. \u00a7 41-1602 (l)(d) provides:\nA person commits battery in the second degree if: he recklessly causes serious physical injury to another person by means of a deadly weapon.\nWe defined the degree of particularity required:\nThe Constitution has erected procedural safeguards to protect against conviction for crime except for violation of laws which have clearly defined conduct thereafter to be punished; but the Constitution does not require impossible standards. The language here challenged conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. The Constitution requires no more.\nSee also Martin v. State, 261 Ark. 80, 547 S.W.2d 81 (1977). We went on to say that \u201cthe language of \u00a7 41-1602 (l)(d) [which includes \u2018serious physical injury\u2019 as defined by\u00a7 41-115 (19)] was of such common understanding and practice that it could not be said that an ordinary individual or juror would have to speculate as to its meaning.\u201d We find that serious physical injury as defined in \u00a7 41-115 meets the constitutional standards we have set out. As the state concludes in its brief: \u201cThe statute states the extent of harm that the victim must endure in order for the injury to constitute a 'serious physical injury\u2019. It would be unwise and unnecessary to define the phrase in a more precise and inflexible manner as the general language sufficiently describes the requisite extent of harm to the victim.\u201d See State v. Weston, 255 Ark. 567, 501 S.W.2d 622 (1972).\nThe judgment is affirmed.",
        "type": "majority",
        "author": "Steele Hays, Justice."
      }
    ],
    "attorneys": [
      "David W. Kirk, for appellant.",
      "Steve Clark, by: Patricia G. Cherry, Asst. Atty. Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Daniel Elmer LUM v. STATE of Arkansas\nCR 84-20\n665 S.W.2d 265\nSupreme Court of Arkansas\nOpinion delivered March 5, 1984\nDavid W. Kirk, for appellant.\nSteve Clark, by: Patricia G. Cherry, Asst. Atty. Gen., for appellee."
  },
  "file_name": "0495-01",
  "first_page_order": 527,
  "last_page_order": 532
}