¶1dissenting. To be convicted of the crime of battery in the first degree, one must cause serious physical injury to another by means of a deadly weapon; cause injury which destroys, amputates, or permanently disables another person; or cause serious physical injury to another under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5-13-201 (a) (Repl. 1997). Based on our previous decisions interpreting this statute, I cannot agree with the majority that these elements were present in appellant’s conduct in this case, and, therefore, I respectfully dissent.
¶2In Bolden v. State, 267 Ark. 504, 593 S.W.2d 156 (1980), we held that, in order to sustain a conviction of first-degree battery, life-endangering conduct must generally be involved. There must be a severe injury in conjunction with a wanton or purpose&l culpable mental state, and each subsection of the statute described conduct that would produce murder liability if death resulted. Id. Indeed, in Bolden, we reversed a conviction for first-degree battery where the defendant had kicked and beaten a police officer about the head and chest, resulting in a broken jaw, because there was insufficient evidence to show that the injuries were caused by a weapon, rather than by the beating and kicking that the officer sustained. Id.
¶3Here, as in Bolden, there was no evidence of any weapon having been used against the victim by any of the several people who kicked and beat him. There was no showing that the victim suffered any injury resulting from the use of a weapon. The only evidence of intent to cause serious and permanent injury was one witness’s account that he saw an attacker, whom he later identified as appellant, kick the victim’s head, and, upon missing his head, back up and run, in cowboy boots, at the victim, kicking him in the head. The only evidence of a “weapon” employed was the attacker’s cowboy boots.
¶4The evidence was scant that Harmon was the attacker wearing cowboy boots. Upon apprehension only fifteen minutes after the attack, Harmon was not wearing cowboy boots, nor did his clothing fit the description of the blood-stained garb given by witnesses. Unlike the majority, I cannot agree that the evidence presented was sufficient to sustain a conviction of first-degree battery. I respectfully dissent and would send the matter back to the trial court on the question whether the evidence would support a conviction for a lesser-included offense.
¶5Dissent.