Ark. Code Ann. § 5-13-203

Research References

ALR.

Dog as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery. 124 A.L.R.5th 657.

Parts of Human Body, other than Feet, as Deadly or Dangerous Weapons or Instrumentalities for Purposes of Statutes Aggravating Offenses such as Assault and Robbery. 67 A.L.R.6th 103.

Ark. L. Rev.

Case Note, Criminal Liability for Attempting to Inflict the AIDS Virus: Possibilities in Arkansas' Future, 45 Ark. L. Rev. 505.

Case Notes

Defense or Justification.

An officer could not justify an assault on a prisoner on ground that it was committed to suppress disorderly conduct. Stone v. State, 56 Ark. 345, 19 S.W. 968 (1892).

Where a conductor, assaulted by a passenger, used force to repel such assault, the burden was on the railroad company to show that the conductor used no more force than appeared to him, as a reasonable man, necessary to repel the assault. Saint Louis S.W. Ry. v. Berger, 64 Ark. 613, 44 S.W. 809 (1898) (decision under prior law).

The defendant had to be free from all carelessness in reaching the conclusion that his own safety demanded the action he took against the plaintiff. Downey v. Duff, 106 Ark. 4, 152 S.W. 1010 (1912) (decision under prior law).

Court did not err in instructing jury that no one was allowed to exercise right of self defense, if he willingly entered into a fight, where defendant did not request clarification, and made no specific objection to the instruction. Hadaway v. State, 215 Ark. 658, 222 S.W.2d 799 (1949) (decision under prior law).

Evidence.

Circumstantial evidence held sufficient to support the defendants' conviction of third-degree battery. Vail v. State, 267 Ark. 1078, 593 S.W.2d 491 (Ct. App. 1980).

Evidence held insufficient to support conviction. Kelley v. State, 7 Ark. App. 130, 644 S.W.2d 638 (1983), superseded by statute as stated in, Conner v. State, 75 Ark. App. 418, 58 S.W.3d 865 (2001); Baumer v. State, 300 Ark. 160, 777 S.W.2d 847 (1989).

Evidence held sufficient to support conviction. B.J. v. State, 56 Ark. App. 35, 937 S.W.2d 675 (1997).

Where the victim, a witness, and an officer testified concerning the incident in which defendant knocked the victim to the floor and then kicked her, the evidence was overwhelming proof that defendant, with the purpose of causing injury to the victim, physically injured the victim; thus, the improper admission of the unavailable officer's testimony was harmless error as to the offense of third-degree battery, subdivisions (a)(1)-(2) of this section. Proctor v. State, 349 Ark. 648, 79 S.W.3d 370 (2002).

Evidence was sufficient to convict defendant of battery in the third degree under subdivision (a)(1) of this section because defendant admitted to purposely hitting the victim, the victim and two witnesses testified that the victim had an injury to the forehead following the incident, and an officer testified as to the victim's injury. Beare v. State, 2010 Ark. App. 544 (2010).

Trial court's finding that defendant violated the conditions of his suspended sentence by committing third-degree battery under subdivision (a)(l) of this section was not clearly against the preponderance of the evidence, because two witnesses testified that defendant struck the victim multiple times in the face, causing cuts to his mouth and significant bleeding. Knotts v. State, 2012 Ark. App. 121 (2012).

Suspension of an earlier sentence was properly revoked because defendant committed domestic battery in the third degree where an infant child suffered an arm fracture in defendant's care, and a medical examination revealed healing fractures other places; moreover, there was evidence that other injury incidents had occurred while the child was in defendant's care, and there was testimony that defendant was too rough with the child. The standard for reckless was what a reasonable person in the circumstances would have observed. Singletary v. State, 2013 Ark. App. 699 (2013).

Instructions.

Where defendant was charged with second-degree battery in connection with assault on police officer and the court properly instructed the jury as to the burden of proof and elements required before the jury could convict under § 5-13-202, battery in the second degree, and lesser included charges, and where the jury found the defendant guilty only of battery in the third degree which does not require as an element any offense against a law enforcement officer, there was no error in the refusal of the court to give requested instruction which concerned the state's burden to prove that defendant knowingly used physical force against a law enforcement officer. Breeden v. State, 270 Ark. 90, 603 S.W.2d 459 (1980).

In second degree battery prosecution, court erred in refusing to give instruction on lesser included offense of third degree battery where the jury could rationally have found that the defendant “recklessly” caused the injury. Johnson v. State, 28 Ark. App. 256, 773 S.W.2d 450 (1989).

Following a vehicle collision, defendant was charged with driving while intoxicated as a second offense, negligent homicide, first-degree battery, and aggravated assault. Defendant invited any error committed by the trial court in giving his requested instruction on third-degree battery that also included the element of physical injury caused by means of a deadly weapon under subdivision (a)(3) of this section. Hayes v. State, 2009 Ark. App. 663 (2009).

Court of appeals refused to consider defendant's argument that the trial court abused its discretion in denying his proffered third-degree battery instruction because defendant did not make the argument to the trial court; defendant made no argument regarding the firearm or the mental state required for the proffer of his third-degree-battery instruction, and the trial court did not consider the third-degree instruction as it related to evidence other than the evidence surrounding a pool cue. Reed v. State, 2011 Ark. App. 352, 383 S.W.3d 881 (2011).

Where a defendant appealed his conviction for first-degree battery, a trial court abused its discretion in failing to instruct the jury on third-degree battery since there was some evidence to support such an instruction. The defendant testified that he did not mean to drop the infant on her head and that it was an accident, and an expert offered his opinion that a baby's skull could be fractured by a fall such as the one described by the defendant. Washington v. State, 2014 Ark. App. 122 (2014).

Lesser Included Offenses.

Battery is not a lesser included offense of robbery; third degree battery requires proof of physical injury while robbery calls for the employment of physical force with no physical injury necessary. Robinson v. State, 14 Ark. App. 38, 684 S.W.2d 824 (1985).

Battery in the second degree and battery in the third degree require proof that a deadly weapon was used; in contrast, use of a deadly weapon is not necessary for the commission of manslaughter. Since battery in the second degree and third degree require proof of an element not an element of proof of manslaughter, they are not lesser included offenses of manslaughter. Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002).

Trial court did not err by refusing to instruct a jury on third-degree battery as a lesser included offense of second-degree battery, in violation of § 5-13-202(a)(4)(A)(i), where there was no evidence tending to disprove that the victim was an employee of a correctional facility; there was testimony that referred to the victim as a “detention officer” and “jailer.” Davis v. State, 97 Ark. App. 6, 242 S.W.3d 630 (2006).

To the extent that defendant convicted of second-degree battery attempted to argue that the jury should have been instructed on third-degree battery as a lesser-included offense because the jury could have rationally found him to have recklessly caused the injuries to the victim, his argument was not preserved, because although he proffered an instruction on third-degree battery based on the first definition of third-degree battery in subsection (a) of this section, which involved purposely causing physical injury, there was no indication that he requested an instruction based on the second definition in the statute, which involved recklessness. Defendant was thus procedurally barred from raising an argument based on an element of recklessness. Lytle v. State, 2012 Ark. App. 246 (2012).

During parents' trial for first-degree battery against their infant, the court did not err in refusing to instruct the jury on the lesser-included offense of third-degree battery, in violation of subdivision (a)(2) of this section, because the physical injury the infant sustained could only be described as serious; the infant was severely malnourished to the point of starvation and death would have occurred within days without medical attention. Bruner v. State, 2013 Ark. 68, 426 S.W.3d 386 (2013).

Physical Injury.

Evidence held insufficient to establish that victim's physical condition was impaired or that he was inflicted with substantial pain. Kelley v. State, 7 Ark. App. 130, 644 S.W.2d 638 (1983), superseded by statute as stated in, Conner v. State, 75 Ark. App. 418, 58 S.W.3d 865 (2001).

The difference between the crime of second-degree battery and the crime of third-degree battery is that third-degree battery concerns “physical injury” rather than “serious physical injury.” Hall v. State, 11 Ark. App. 53, 666 S.W.2d 408 (1984).

Injuries which involved serious bruising of child would support only the lesser included offense of battery in the third degree and not conviction of second-degree battery. Hall v. State, 11 Ark. App. 53, 666 S.W.2d 408 (1984).

Where the two-year old victim had bite marks on her buttocks, and pinch marks and apparent fingerprints on her face, and there was testimony by the babysitter that the child appeared to be terrified of the defendant, the jury could reasonably find that the infliction of the bruises was accompanied by the infliction of substantial pain and the victim suffered “physical injury.” Spencer v. State, 17 Ark. App. 149, 705 S.W.2d 454 (1986).

The fact that the victim was injured but not seriously did not preclude a charge of attempted first degree battery, even though the defendant's conduct also fit the definition of battery in the third degree. Mitchell v. State, 290 Ark. 87, 717 S.W.2d 195 (1986).

Trial court did not abuse its discretion by failing to give a proffered jury instruction on third degree battery because the only rational conclusion was that the victim of a shooting suffered a serious physical injury, as opposed to a physical injury; an officer described the gunshot as a fairly severe wound, stated that there was a substantial amount of bleeding, and said that he was concerned that the victim would die before the ambulance arrived. Bennett v. State, 2014 Ark. App. 624, 447 S.W.3d 602 (2014).

Cited: Harmon v. State, 260 Ark. 665, 543 S.W.2d 43 (1976); Martin v. State, 261 Ark. 80, 547 S.W.2d 81 (1977); Sbabo v. State, 264 Ark. 497, 572 S.W.2d 585 (1978); Bolden v. State, 267 Ark. 504, 593 S.W.2d 156 (1980); Viar v. State, 269 Ark. 772, 601 S.W.2d 579 (Ct. App. 1980); Breeden v. State, 270 Ark. 90, 603 S.W.2d 459 (1980); Vowell v. State, 4 Ark. App. 175, 628 S.W.2d 599 (1982); Holmes v. State, 15 Ark. App. 163, 690 S.W.2d 738 (1985); Armstrong v. State, 35 Ark. App. 188, 816 S.W.2d 620 (1991); Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993); Marshall v. State, 68 Ark. App. 223, 5 S.W.3d 496 (1999); Mosley v. State, 2016 Ark. App. 353, 499 S.W.3d 226 (2016).