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Futch v. State

Evidence that the defendant put his hand on the victim's neck did not meet the severity of harm requirement to support a battery conviction.

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Following a bench trial, Mark D. Futch was convicted of one count of battery family violence-first offense and one count of influencing a witness. Futch appeals his convictions, arguing that the evidence was insufficient to prove his guilt beyond a reasonable doubt and that the trial court erred in admitting evidence of prior and subsequent bad acts without first conducting an explicit balancing test. For the reasons set forth infra, we affirm in part and reverse in part.

Viewed in the light most favorable to the trial court’s guilty verdict,1 the evidence shows that Futch and his wife had been married for approximately five years at the time of the alleged battery on December 23, 2007, but at that time they were estranged and living separately. Futch and his wife have a daughter who was approximately two years old at the time, and who lived with her mother after the couple separated. A few days before the incident, Futch’s wife permitted him to see their child. But when Futch refused to give the child back, his wife decided to arrange a meeting to recover her daughter.

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