STATE OF ARKANSAS APPELLEE
FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT
[NOS. 16JJV-16-551, 16JJV-17-160, 16JJV-17-51] HONORABLE
RICHARD ANDREW LUSBY, JUDGE
Goodwin Jones, for appellant.
Rutledge, Att'y Gen., by: Jason Michael Johnson,
Ass't Att'y Gen., for appellee.
W. GRUBER, Chief Judge
case is before us after we remanded to settle and supplement
the record and ordered rebriefing in T.R. v State,
2018 Ark.App. 109. Appellant T.R. was charged in the Juvenile
Division of the Craighead County Circuit Court with battery
in the third degree and with violating his probation based on
the alleged battery. The court adjudicated appellant
delinquent on the third-degree-battery charge and found him
to be in violation of his probation. Appellant contends that
the court erred when it (1) misapplied the defense of
justification in the trial on battery in the third degree and
(2) revoked his probation because no battery was committed.
February 22, 2017, appellant was adjudicated delinquent in
case no. JV-2017-51 for minor in possession of a handgun,
obstructing governmental operations, and theft by receiving.
His disposition was 24 months' probation and 90 days in
the juvenile detention center. During his time in juvenile
detention, appellant allegedly attacked a fellow juvenile and
was charged with battery in the third degree on April 3,
2017. In addition, the State filed a petition to revoke
appellant's probation in case no. JV-2017-51 based on the
battery charge. An adjudication hearing took place on May 10,
2017, in which the trial court heard both cases together.
hearing, Marshall Poole, the director of education at the
juvenile detention center, testified that he had witnessed
the April 3, 2017 incident. He testified that the victim,
D.G., had been sitting at a computer station beside the door
of the classroom when appellant came into the room. Poole
stated that appellant "came in, he went over and started
swinging" at D.G. Poole testified that appellant hit
D.G. a "couple" of times. Poole was not aware of
anything that led up to this fight.
testified that the night before the incident he and appellant
had argued, and he told appellant, "In the school
I'm gonna hit you." D.G. did not say anything to
appellant on the morning of the incident. D.G. explained that
appellant "rushed" him when he walked in the room
and hit him a couple of times in the face. D.G. stood up
after appellant rushed him. D.G. did not have any bruises
from the incident.
the State's case, appellant made a motion to
dismiss. The court denied the motion, and appellant
testified in his own defense.
testified that the night before the incident, D.G. threatened
to hit him at school. Appellant said he was "fearing for
his life" and "feeling like [D.G.] was going to
hit" him. He elaborated, "So when D.G. looked at
me, he stand up. So the first thing that came to my mind - I
got to defend my own self so I had rushed him."
Appellant testified that he did not tell the guards or other
staff of D.G.'s threat the night before or on the morning
of the incident.
renewed the motion to dismiss, which was again denied. The
circuit court found appellant guilty beyond a reasonable
doubt of the battery charge and found that appellant had
violated the terms of his probation based on the battery. At
the May 31, 2017 disposition hearing, appellant was committed
to the Division of Youth Services.
first argues that the trial court erred when it misapplied
the defense of justification in his trial on the
third-degree-battery charge. Specifically, appellant contends
that the trial court erred when it ruled that our statutes on
justification do not apply when twelve hours had passed since
the initial threat of harm. The State responds that appellant
has waived this argument on appeal for failing to object
below on this basis. We agree.
close of the State's case, appellant moved to dismiss,
arguing justification under Ark. Code Ann. § 5-2-606,
which provides in part:
(a)(1) A person is justified in using physical force upon
another person to defend himself or herself or a third person
from what the person reasonably believes to be the use or
imminent use of unlawful physical force by that other person,
and the person may use a ...