Ark. Code Ann. § 5-26-305 (2026)

Case Notes

Construction.

In the context of domestic battering in the third degree, and enhancement in sentencing based on prior offenses, § 5-26-305 is, at the very least, ambiguous because it is subject to more than one interpretation. Colburn v. State, 352 Ark. 127, 98 S.W.3d 808 (2003).

Evidence.

Where the officer testified that defendant admitted to him that she had cut the victim, evidence was sufficient to establish that defendant committed third-degree domestic battering; moreover, because the trial court did not specify the subsection the statute upon which it relied to find guilt, and because the trial court could have relied upon subdivisions (a)(2) or (a)(3), neither of which required purposeful action, it was unnecessary to address whether there was sufficient evidence to establish that defendant acted purposely in cutting the victim. Green v. State, 79 Ark. App. 297, 87 S.W.3d 814 (2002).

Sufficient evidence supported defendant's convictions for second degree domestic battery, and third degree domestic battery where a “family or household member” who could be a victim of these offenses included someone with whom defendant had cohabitated in the past, it was proved that defendant and the victim had previously cohabitated, and it was irrelevant that the victim was married to someone else at the time of the crimes. Brock v. State, 90 Ark. App. 164, 204 S.W.3d 562 (2005).

State produced evidence in the form of a witness that defendant pushed the victim from a moving vehicle and that he struck her afterwards as she lay on the ground; by pushing the victim from a moving vehicle and then kicking her, defendant consciously disregarded the risk that his actions would cause injury to the victim, and there was substantial evidence to support a finding that defendant recklessly caused physical injury to the victim. Lasker v. State, 2009 Ark. App. 591 (2009).

Defendant's suspended sentence was properly revoked under § 5-4-309(d) where the state proved that defendant committed third-degree domestic battery under subsection (a) of this section by showing that defendant inflicted physical injury under § 5-1-102(14), by pulling his wife's hair and throwing her against a vehicle. Andrews v. State, 2009 Ark. App. 624 (2009).

During a hearing on the state's petition to revoke a defendant's suspended sentence, defendant admitted that he slapped his pregnant wife and a responding officer testified to a personal observation of the wife's injuries; this evidence was sufficient to find that defendant inexcusably violated a condition of that suspension and that defendant had committed the offense of domestic battery in the third degree. May v. State, 2009 Ark. App. 703 (2009).

Pregnant wife's testimony that appellant pushed and threatened her — causing red marks on her neck and arm — was sufficient to prove by a preponderance that appellant violated the conditions of his suspended sentence by committing the criminal offenses of domestic battery in third degree, pursuant to subdivision (b)(2)(A) of this section, and terroristic threatening in the second degree, under § 5-13-301(b)(1). Autrand v. State, 2010 Ark. App. 245 (2010).

Because a juvenile's father had not resorted to use of a deadly weapon during an argument, because there had been an interlude of approximately five minutes since their last confrontation, because the father, at the time he was struck, had turned away from the juvenile, and because the juvenile did not testify as to whether the juvenile's beliefs were reasonable, the juvenile lacked justification under §§ 5-1-102(18), 5-2-606(a)(1), 5-2-607(a)(1), (2), and was properly adjudicated as a delinquent for second-degree domestic battering. D.W. v. State, 2011 Ark. App. 187 (2011).

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).

Evidence was sufficient to support the revocation of a probationary sentence based on defendant's commission of domestic battering in the third degree. Defendant's boyfriend reported the incident to police, and photographs of his injuries were admitted into evidence without objection; defendant did not contest that her boyfriend was a household member or that his injuries met the statutory definition, and the boyfriend's testimony was sufficient to show that defendant caused the injuries recklessly or purposefully. Glennon v. State, 2016 Ark. App. 25, 480 S.W.3d 894 (2016).

Testimony from the victim's coworkers identifying the photographs of the marks they saw on the victim's face just after her husband hit her, and evidence defendant fled when police arrived supported defendant's conviction for third-degree domestic battery. Donaldson v. State, 2016 Ark. App. 391, 500 S.W.3d 768 (2016).

Evidence was sufficient to sustain a third-degree domestic battering conviction where the victim and defendant had lived together for about 11 years, her injuries required hospitalization, and the victim's daughter's testimony identified defendant as the person who caused the victim's injuries. Bates v. State, 2017 Ark. App. 123, 516 S.W.3d 275 (2017).

Sufficient evidence supported defendant's conviction for domestic battery in the third degree because, regardless of the victim's testimony, the evidence allowed the trial court to find defendant was a family or household member for purposes of this section. Wheeler v. State, 2017 Ark. App. 540, 532 S.W.3d 602 (2017).

In defendant's prosecution for domestic battery in the third degree, proof that defendant purposely caused injury was sufficient because (1) the only contrary evidence was defendant's testimony, which the trier of fact was permitted to disregard, and (2) the evidence allowed the trier of fact to find defendant did not act in self-defense. Wheeler v. State, 2017 Ark. App. 540, 532 S.W.3d 602 (2017).

Evidence was sufficient to convict defendant of third-degree domestic battering based on the testimony of the responding officer and the emergency room physician; the victim, defendant's girlfriend, told the sergeant that the injuries to her leg were caused by the broad side of a machete wielded by defendant; and, while the doctor was taking her history concerning how she had been injured, she told him she had gotten into a verbal altercation with her boyfriend and tried to drive away; he attempted to open her car door with a machete; he then choked her and struck her multiple times with the flat side of the machete on her upper right leg; and then he struck her with a dumbbell. Raheem v. State, 2018 Ark. App. 620, 566 S.W.3d 148 (2018).

Where cross-examination of the victim at trial revealed that the State's exhibit of text messages between the defendant and victim was incomplete and that the victim had deleted some of the messages, the appellate court did not have to decide whether the circuit court erred in failing to strike the exhibit because any error that existed was harmless given the overwhelming evidence of defendant's guilt that remained. Farmer v. State, 2019 Ark. App. 148, 571 S.W.3d 78 (2019).

Federal Law.

Defendant's prior conviction of third-degree domestic battery under subdivision (a)(1) of this section was a violent felony for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i); controlling precedent had determined that third-degree domestic battery was a violent felony under the ACCA's force clause. United States v. Eason, 907 F.3d 554 (8th Cir. 2018).

Force.

In a case alleging rape, kidnapping, and third-degree domestic battery, a sufficiency of the evidence argument was not preserved for review because defendant argued on the first time on appeal that the amount of restraint or force used did not warrant a kidnapping conviction and a third-degree battery conviction in addition to the rape. This was not the same argument raised during a directed verdict motion. Rounsaville v. State, 372 Ark. 252, 273 S.W.3d 486 (2008).

Sentence.

Where defendant battered the victim on August 14th and 15th, but pled guilty to the August 15th offense in municipal court first, the State could not enhance defendant's later conviction for the August 14th offense to a Class D felony based on the “prior” offense; the offense occurring on August 15th was not a “prior” offense since it occurred after the August 14th battering charge. Colburn v. State, 352 Ark. 127, 98 S.W.3d 808 (2003).

Sentencing defendant under the specific provisions of subsection (b) of this section, which enhanced the offense to a Class D felony, and to also sentence him under the general habitual offender statute, § 5-4-501, was impermissible and resulted in an illegal sentence of twelve years' imprisonment that had to be corrected. Banks v. State, 354 Ark. 404, 125 S.W.3d 147 (2003).

Revocation of defendant's suspended imposition of sentence for two felony convictions was appropriate because the circuit court's finding that she committed third-degree domestic battering and thus violated the condition that she break no laws, was not clearly against the preponderance of the evidence. The testimony was sufficient to prove that, either purposefully or recklessly, she struck her nephew and caused him physical injury in the form of substantial pain under subsection (a) of this section and § 5-1-102(14). Westbrook v. State, 2011 Ark. App. 615 (2011).

Trial court did not err in sentencing defendant after revoking his probation because defendant pleaded guilty to second-degree domestic battery, § 5-26-304, and third-degree domestic battery, under this section, and his sentences of ten and six years, respectively, were sentences that could have been originally imposed for the offenses of which he was found guilty. Jones v. State, 2012 Ark. App. 69, 388 S.W.3d 503 (2012).