{ "id": 36043, "name": "Darryl BANKS v. STATE of Arkansas", "name_abbreviation": "Banks v. State", "decision_date": "2003-10-16", "docket_number": "CR 03-104", "first_page": "404", "last_page": "413", "citations": [ { "type": "official", "cite": "354 Ark. 404" }, { "type": "parallel", "cite": "125 S.W.3d 147" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "283 Ark. 425", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1879959 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/283/0425-01" ] }, { "cite": "295 Ark. 37", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893763 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/ark/295/0037-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-4-501", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2001, "opinion_index": 0 }, { "cite": "354 Ark. 76", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 36092 ], "weight": 2, "year": 2003, "pin_cites": [ { "parenthetical": "stating that the State need not prove a defendant's three other DWI offenses in order to determine his guilt on the charge of DWI, fourth offense" }, { "parenthetical": "stating that the State need not prove a defendant's three other DWI offenses in order to determine his guilt on the charge of DWI, fourth offense" } ], "opinion_index": 0, "case_paths": [ "/ark/354/0076-01" ] }, { "cite": "286 Ark. 421", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721738 ], "weight": 2, "year": 1985, "pin_cites": [ { "parenthetical": "holding that the existence of three prior convictions for driving while intoxicated is an element of the felony DWI fourth offense to be proven in the sentencing phase of a bifurcated trial" }, { "parenthetical": "holding that the existence of three prior convictions for driving while intoxicated is an element of the felony DWI fourth offense to be proven in the sentencing phase of a bifurcated trial" } ], "opinion_index": 0, "case_paths": [ "/ark/286/0421-01" ] }, { "cite": "317 Ark. 209", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443723 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "212-13" }, { "page": "909" } ], "opinion_index": 0, "case_paths": [ "/ark/317/0209-01" ] }, { "cite": "326 Ark. 106", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12020961 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/326/0106-01" ] }, { "cite": "330 Ark. 38", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298634 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0038-01" ] }, { "cite": "334 Ark. 285", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1655480 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/334/0285-01" ] }, { "cite": "346 Ark. 118", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1111379 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/346/0118-01" ] }, { "cite": "350 Ark. 160", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1404458 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/350/0160-01" ] }, { "cite": "324 Ark. 526", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9161496 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/324/0526-01" ] }, { "cite": "340 Ark. 99", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1365151 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/340/0099-01" ] }, { "cite": "349 Ark. 447", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513749 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/349/0447-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-26-305", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1997, "opinion_index": 0 } ], "analysis": { "cardinality": 759, "char_count": 16739, "ocr_confidence": 0.757, "pagerank": { "raw": 1.3365530578698361e-07, "percentile": 0.6302348129176644 }, "sha256": "fc981828da4af3867d375f94719d1fcbababed4e25300e736f06f647578ce588", "simhash": "1:35209d36ca649fce", "word_count": 2789 }, "last_updated": "2023-07-14T15:05:30.600361+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Brown, J., not particpating." ], "parties": [ "Darryl BANKS v. STATE of Arkansas" ], "opinions": [ { "text": "Donald L. Corbin, Justice.\nAppellant Darryl Banks appeals the order of the Pulaski County Circuit Court convicting him of the felony charge of third-degree domestic battering, second offense, a violation of Ark. Code Ann. \u00a7 5-26-305 (Repl. 1997). On appeal, he argues that the twelve-year sentence imposed as a result of that conviction is illegal, because the proof adduced at trial established that he committed third-degree domestic battering, a misdemeanor. This case was certified to us from the Arkansas Court of Appeals as involving an issue of first impression and an issue requiring clarification or development of the law; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R.l-2(b)(l) and (5). We reverse and remand.\nOn the evening of November 11, 2001, Appellant approached his wife Stacy Banks in a nightclub and told her to go home. After she refused, Appellant approached her again, and both Appellant and his wife were asked to leave the club. Once at home, Appellant and Mrs. Banks began to argue, and Appellant then choked his wife and struck her in the face. He then ran off. Mrs. Banks called 911 and police were dispatched to her home, where they took a statement from her. The next morning, Mrs. Banks tried talking with her husband, but he struck her again. She again called the police, who took a second statement from her and photographed her injuries. Those injuries included a busted lip, some bruising, and scratches around her eyes.\nThe State filed a felony information against Appellant on December 14, 2001, charging him with'one count of domestic battering in the third degree, second offense. The information also alleged that Appellant was a habitual offender.\nAppellant was tried before a jury in circuit court on June 26, 2002. Prior to the commencement of the trial, there was a discussion as to whether or not the State should introduce evidence of Appellant\u2019s prior conviction for domestic battering during the guilt phase of his trial or during the sentencing phase, if Appellant was found guilty. Ultimately, the trial court agreed that the prior conviction should be admitted during the sentencing phase of the trial for purposes of sentence enhancement.\nTwo witnesses testified on behalf of the State. First, Mrs. Banks testified regarding the events leading up to her injuries and the nature of her injuries. Also testifying was Officer Ivan Smith of the Little Rock Police Department. Officer Smith testified that on the evening of November 11, he received a call regarding an assault in progress at Appellant\u2019s residence. When the officer arrived, he noticed a man fitting Appellant\u2019s description running along the wood line next to the trailer park where Appellant and his wife lived. Smith made contact with Appellant and took him into custody. Appellant told Smith that he had been asleep on the couch when his wife came in and started hitting him in the chest. Appellant claimed that he left his residence before he got mad and hit his wife. Smith drove Appellant back to his residence and found Mrs. Banks suffering from a swollen lip and bruised right eye. Smith testified that Mrs. Banks was very upset and crying when he arrived at the residence.\nFollowing the testimony of Smith, the State rested its case. Appellant moved for a directed verdict, arguing that the State failed to show that Mrs. Banks suffered any physical injury. The motion was denied. The defense then rested without presenting any evidence. Appellant\u2019s directed-verdict motion was renewed and again denied. The case was then submitted to the jury, which returned a verdict of guilty.\nFollowing the rendering of the guilty verdict, the State introduced into evidence the prior misdemeanor conviction of Appellant for domestic battering in the third degree. The State also introduced evidence of Appellant\u2019s prior felony conviction for aggravated assault against a family member and a felony conviction for aggravated assault. The jury then sentenced Appellant to a term of twelve years\u2019 imprisonment. This appeal followed.\nAppellant\u2019s sole argument on appeal is that the trial court erred by imposing an illegal sentence. He bases this argument on the contention that the proof adduced at trial supported a conviction for a misdemeanor charge of domestic battering in the third degree, not a felony charge. He urges that the State was required to introduce evidence of his prior offense of domestic battering during the guilt phase of his trial, as he claims the prior offense is a substantive element of the felony charge of third-degree domestic battering, second offense. Thus, according to Appellant, because he was given an illegal sentence, this issue may not be waived by the parties and may be raised for the first time on appeal. We do not agree with Appellant on this point.\nIt is'true that this court has held allegations of a void or illegal sentence constitute an issue of subject-matter jurisdiction and, as such, cannot be waived by the parties and may be addressed for the first time on appeal. Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002). In the instant case, however, we do not agree that the issue raised by Appellant is one of an illegal sentence; rather, Appellant\u2019s argument amounts to a challenge of the appropriateness of the introduction of his prior offenses during the sentencing phase of the trial, as opposed to introducing them during the guilt phase of the trial. In other words, Appellant claims that he was tried and convicted of a misdemeanor, because the State failed to prove the second-offense element of the felony charge during the guilt phase. It is apparent that Appellant has chosen to couch his argument in terms of an illegal sentence, because the issue is not preserved for our review.\nImmediately prior to the commencement of this trial, a discussion took place between the trial court and both attorneys. There appeared to be confusion as to whether the State was required to introduce evidence of Appellant\u2019s prior misdemeanor conviction in order to prove that this was his second offense. The following colloquy then took place:\nThe Court: How many priors does he have?\nMr. Sipe: He\u2019s got two prior aggravated assaults he\u2019s on probation for in this court, and they\u2019re aggravated assaults against family or household members.\nThe Court: Those are the two you\u2019re referring to?\nMr. Sipe: The two I\u2019m referring to. And then there\u2019s' also a misdemeanor.\nThe Court: Well, you know, in the information, we\u2019ve got to talk about it because you\u2019ve got to prove it.\nMr. Sipe: WeH, \u2014\nThe Court: How are you going to do that?You\u2019ve got to prove this is a second offense.\nMr. Sipe: We can \u2014 the way I\u2019ve got a jury instruction \u2014 I can show you the jury instruction if you want to see it.The way I have the jury instruction written up is, they first go back and they find him guilty or innocent of domestic battery, third degree. So I\u2019m not sure that the Court \u2014\nThe Court: Wait a minute.\nMr. Sipe: \u2014 would have to mention second offense.\nThe Court: Wait a minute. How can they do that if you haven\u2019t proved it? Domestic battery, third, is based upon a prior offense.\nMr. Sipe: Well, that\u2019s the \u2014 it\u2019s a sentencing enhancement is what we would say it was .We still have to prove a domestic battery, third.We\u2019re alleging there was physical injury. It was not serious physical injury.\nThe Court: Okay. So it\u2019s not an element that he\u2019s previously been convicted?\nMr. Sipe: Right. It\u2019s just that goes to sentencing only. It enhances the sentencing, the punishment range but does not affect the fact that it\u2019s a domestic battery, third.\nThe Court: Okay. Well, see, the information reads, \u201cdomestic battery in the third degree, second offense.\u201d\nMr Sipe: Well, I\u2019d just ask that maybe that be stricken, that you could strike that when you read that to the jury, or \u2014\nThe Court: Okay. There\u2019s no requirement that you prove it\u2019s a second offense to get third degree battery?\nMr. Sipe: We can get third degree battery, but then we\u2019ll provide a prior to you \u2014\u2022\nThe Court: Okay. Well, I\u2019m just asking, that\u2019s not an element of the crime?\nMr. Sipe: No.\nMs. Turner: No.\nThe Court: To show that you \u2014 okay. I\u2019ll take that part out. So I\u2019m just going to tell the jury that he\u2019s charged with domestic battery in the third degree.\nMr. Sipe: Yes,Your Honor.\nIt is evident from this discussion that counsel for Appellant, Ms. Turner, agreed with the State\u2019s position that the prior offense of domestic battering was not an element of the charge that had to be proven during the guilt phase of Appellant\u2019s trial. Likewise, Appellant did not object when the circuit court struck the words \u201csecond offense\u201d from the felony information and omitted those words when reading the information to the jury. In sum, Appellant agreed that the proper time to admit the evidence of his prior conviction was during the sentencing phase. Appellant\u2019s present argument amounts to nothing more than a challenge to the sufficiency of the State\u2019s evidence convicting him, but when Appellant made his directed-verdict motions, the only challenge raised was that the State failed to prove that Mrs. Banks suffered a physical injury.\nThis court has often held that in order to preserve an argument for appeal, there must be an objection in the trial court that is sufficient to apprise the court of the particular error alleged. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000); Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996). More specifically, a motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. Grady v. State, 350 Ark. 160, 85 S.W.3d 531 (2002). Because Appellant failed to challenge the sufficiency of the State\u2019s evidence regarding the prior offense and, instead, agreed to keep such evidence out during the guilt phase, he cannot now raise that issue to this court. It is axiomatic that a defendant cannot agree with a trial court\u2019s ruling and then attack the ruling on appeal. See, e.g., Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001); Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998); McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997); Goston v. State, 326 Ark. 106, 930 S.W.2d 332 (1996).\nEven if the issue was properly before this court, Appellant would still not prevail on this point. This court has never specifically addressed the issue of whether a prior conviction for domestic battering is an element of the offense of domestic battering, second offense. This court, however, has addressed a similar issue in the context of multiple offenses for driving while intoxicated offenses. In Hagar v. City of Fort Smith, 317 Ark. 209, 212-13, 877 S.W.2d 908, 909 (1994), this court stated:\nThe prosecution must prove a prior conviction for DWI as an element of the offense of DWI, Second Offense. The prior DWI conviction must be given the status of an element of a subsequent DWI offense because eventually, upon.the fourth DWI conviction, the crime charged will change from a misdemeanor to a felony. As stated in Peters, the proof of the prior DWI conviction or convictions must come in the punishment phase of a bifurcated trial to protect a defendant from possible prejudice during the guilt phase. Bifurcated proceedings also ensure the protection of a defendant\u2019s right to counsel in the prior convictions.\nThe rationale underlying the multiple offenses in the context of DWI cases can certainly be extended to cases involving multiple domestic batterings. Thus, even though the prior offense is an element that must be proven, it is an element properly proven during the sentencing phase of a bifurcated proceeding, which is precisely what occurred in the instant case. See also Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985) (holding that the existence of three prior convictions for driving while intoxicated is an element of the felony DWI fourth offense to be proven in the sentencing phase of a bifurcated trial); State v. Sola, 354 Ark. 76, 118 S.W.3d 95 (2003) (stating that the State need not prove a defendant\u2019s three other DWI offenses in order to determine his guilt on the charge of DWI, fourth offense).\nDespite the fact that we do not agree with Appellant on his argument raised in the present appeal, we do note that Appellant\u2019s sentence is indeed an illegal one. In this case, the evidence demonstrates that Appellant was convicted of the Class D felony of domestic battering in the third degree, second offense. The maximum penalty allowed for a Class D felony is a term of six years\u2019 imprisonment. Here, however, Appellant was sentenced to a term of twelve years\u2019 imprisonment after the jury was instructed as follows:\nYou have found Darryl Banks guilty of the offense of domestic battery in the third degree. It is my duty to instruct you that Darryl Banks has a prior battery conviction against a family or household member. It is also my duty to instruct you that Darryl Banks has two ' prior felony convictions and is classified as a habitual offender.\nThe offense of domestic battery in the third degree, when committed by a habitual offender who has previously committed a prior offense of domestic battering, is punishable by imprisonment in the Arkansas Department of Correction for a term of not more than 12 years.\nThus, under this non-model jury instruction, Appellant\u2019s six-year sentence was enhanced pursuant to the habitual-offender statute, codified at Ark. Code Ann. \u00a7 5-4-501 (Supp. 2001). That statute provides in relevant part:\n(a)(1) A defendant meeting the following criteria may be sentenced to an extended term of imprisonment as set forth in subdivision (a)(2) of this section:\n(A) A defendant who is convicted of a felony other than those enumerated in subsections (c) and (d) of this section committed after June 30, 1993, and who has previously been convicted of more than one (1) but fewer than four (4) felonies or who has been found guilty of more than one (1) but fewer than four (4) felonies;\n(2) The extended terms of imprisonment for the defendants described in subdivision (a)(1) of this section are as follows:\n(E) For a conviction of a Class D felony, a term of not more than twelve (12) years[.]\nThis enhancement under the habitual-offender provision resulted in an illegal sentence of twelve years\u2019 imprisonment being imposed on Appellant.\nA similar situation occurred in Lawson v. State, 295 Ark. 37, 746 S.W.2d 544 (1988). At issue in that case was whether it was permissible to stack a specific subsequent-offense penalty-enhancement statute upon the general habitual criminal statute. This court concluded that is was impermissible. In reaching this conclusion, the court relied on its well-established principles of statutory construction, and held:\nBy applying these rules of construction we are satisfied the legislature did not intend this specific criminal enhancement statute should be coupled with our general criminal enhancement statute for the resulting purpose of creating a greater sentence than if either statute had been applied singly. This is in accord with our decision in Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1985), where we were faced with an analogous situation involving the same Omnibus DWI Act at issue in the case before us. We applied the principle of the specific act overriding a general act on the same subject and held that the specific mandatory sentencing requirement under that act, excluded the discretionary probation provided for in our general criminal statutes.\nId. at 41-42, 746 S.W.2d at 546. Accordingly, under the precedent set forth in La-wson, it was impermissible to sentence Appellant under the specific provision ofsection 5-26-305(b), which enhanced the offense to a Class D felony, and to also sentence him under the general habitual-offender statute, thus, resulting in an illegal sentence of twelve years\u2019 imprisonment.\nBecause it was error for the State to enhance Appellant\u2019s sentence pursuant to the specific provisions of section 5-26-305 (b) and the general habitual-offender provision codified in section 5-4-501, Appellant\u2019s illegal sentence must be corrected. Accordingly, we reverse and remand this matter to the circuit court with instructions that Appellant\u2019s illegal sentence be corrected so that it falls within the range allowed for a Class D felony.\nReversed and remanded.\nBrown, J., not particpating.", "type": "majority", "author": "Donald L. Corbin, Justice." } ], "attorneys": [ "William R. Simpson, Jr., Public Defender; Brandy Turner, Deputy Public Defender, by: Erin Vinett, Deputy Public Defender, for appellant.", "Mike Beebe, Att\u2019y Gen., by: Misty Wilson Borkowski, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Darryl BANKS v. STATE of Arkansas\nCR 03-104\n125 S.W.3d 147\nSupreme Court of Arkansas\nOpinion delivered October 16, 2003\nWilliam R. Simpson, Jr., Public Defender; Brandy Turner, Deputy Public Defender, by: Erin Vinett, Deputy Public Defender, for appellant.\nMike Beebe, Att\u2019y Gen., by: Misty Wilson Borkowski, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0404-01", "first_page_order": 430, "last_page_order": 439 }