evidence may be insufficient in probation-revocation proceedings to sustain allegation that appellant committed specific offense, but revocation will be sustained if evidence establishes lesser-included offense
How later courts described this case
- evidence may be insufficient in probation-revocation proceedings to sustain allegation that appellant committed specific offense, but revocation will be sustained if evidence establishes lesser-included offense
Written by the judges who cited it.
The opinion
JOHN B. ROBBINS, Judge, concurring. I concur with the majority’s decision to deny appellant’s petition for rehearing; however, I write to clarify the factual scenario that was presented to us by this appeal. Appellant has two prior convictions for domestic battery, one of which resulted in a sentence of probation for three years. During this three-year period, a petition for revocation was filed in which it was alleged that appellant had violated the conditions of his probation by committing the offense of domestic battery in the first degree. At a hearing in the trial court the victim’s testimony included the following:
He was still fussing at my brother. I told him to leave my brother alone. I stood between him and my brother and he pushed me. I did threaten him before that, we had gotten into it [previously], and the day before this incident. I told him in the room that I would' kill him and to leave me alone. I was hollering and fussing when I said it. I did not mean it, but I was mad. We were in the den when this happened. I fell on the floor, and I brought him down with me, and all I know is we were tussling and fighting. My mother was trying to break it up. My eyes were closed, and I was trying to fight him, so I cannot tell you exactly in detail what exactly happened, I closed my eyes because he was hitting on me. I cannot tell you exactly where he was hitting me. He did not hit me in the face. We were on the floor tussling and fighting. We were on the floor and mom was trying to pull us apart, I got back up and I called 911 and talked to them, and told them what happened. My mother disconnected the phone, he had a drink in his hand, and he threw it in my face. I was on the telephone and I started crying, my mother disconnected the phone. I have no idea what he was drinking and the next thing that happened is I started fussing and cussing at him, because he threw the drink in my face and we fought again. The reason why I started fussing and cussing at him and how it happened the second time is I was in his face. I do not think I hit him first. He did not hit me in the face the first time we were fighting, but he hit me in the face the second time. It was with his fist. We were still fighting and I was trying to push him, get him away from me. My mother was trying to separate us, it finally stopped, I fell on the ground and he was pulling my braids, and then I just left him alone. When I fell on the ground, he had my braids in his hand, and he was pulling my braids. He was just pulling them. I was on the ground when he pulled my braids out. I do not remember how many, but it was a lot. I went into another room and used the telephone and called somebody to come get me, and I went and waited outside until they got there. As we were leaving, the police pulled up so we turned around and went back. When I made contact with the police. I had scratches on my face, my lip was busted, and my face was swollen. My eye was hurting, it was red. And my braids were all over the ground. Next day my whole side of my face was hurting, and I could not lay on it, it was swollen and red. It felt like a headache on my face. I was in substantial pain.
Although there was testimony to the contrary, this was a matter of credibility and the trial judge obviously believed the victim. Her testimony described two distinct altercations. Even if the victim precipitated the first altercation, it had ended and the victim was making a telephone call. Her mother disconnected the telephone and appellant threw a glass of some beverage in the victim’s face, and the fight was on again. It was during this second altercation that the victim testified that appellant struck her in the face with his fist.
The dissenting opinion’s rationale is premised on the applicability of Ark. Code Ann. § 5-2-605 (1) (Repl. 1997), and Sykes v. State, 57 Ark. App. 5 , 940 S.W.2d 888 (1997). However, this statute and Sykes are inapplicable and irrelevant to this appeal. The grandmother-appellant in Sykes was the duly appointed guardian of the minor ward, her grandson. She spanked her grandson with a phone cord because she could not find her belt. The spanking did not result in any bruising, bleeding or welting. Such relationship of guardian and ward is expressly included within the coverage of 5-2-605(1). We applied 5-2-605(1) and held that the physical force was justified. Here, however, appellant is neither the parent, teacher, guardian, nor a person otherwise entrusted with the care and supervision of the victim. See Ark. Code Ann. § 5-2-605 (1). She is the seventeen-year-old daughter of appellant’s wife. While at some time in the past she had resided with her mother and appellant, she did not reside with them at the time of the altercation. She was merely visiting in their home the evening of the incident. Consequently, 5-2-605(1) and Sykes have no application and the trial court would have erred if it had relied on them.
Our decision of November 28, 2001, which affirmed the trial court’s revocation of appellant’s probation, was neither a mistake nor a departure from Arkansas law. We acted consistent with our laws in affirming the appeal, and we do so again now in denying appellant’s petition for rehearing.