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T.R. v. State

Court of Appeals of Arkansas, Division II

May 30, 2018

T.R. APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT [NOS. 16JJV-16-551, 16JJV-17-160, 16JJV-17-51] HONORABLE RICHARD ANDREW LUSBY, JUDGE

          Terry Goodwin Jones, for appellant.

          Leslie Rutledge, Att'y Gen., by: Jason Michael Johnson, Ass't Att'y Gen., for appellee.

          RITA W. GRUBER, Chief Judge

         This 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. We affirm.

         On 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.

         At the 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.

         D.G. 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.

         Following the State's case, appellant made a motion to dismiss.[1] The court denied the motion, and appellant testified in his own defense.

         Appellant 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.

         Appellant 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.

         Appellant 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.

         At the 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 ...

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