FROM THE CRAWFORD COUNTY CIRCUIT COURT [NO. 17CR-14-281]
HONORABLE GARY COTTRELL, JUDGE
Lisa-Marie Norris, for appellant.
Rutledge, Att'y Gen., by: Jacob H. Jones, Ass't
Att'y Gen., for appellee.
MARK KLAPPENBACH, JUDGE
Caldwell appeals from an order revoking his suspended
sentence and sentencing him to two years in the Arkansas
Department of Correction. He argues that the trial court
erred in finding that he violated the conditions of his
suspension and that he was denied the constitutional right to
confront his accuser. We affirm.
pled guilty in 2014 to possession of a controlled substance
(methamphetamine). He was sentenced to four years'
imprisonment, with imposition of any additional imprisonment
suspended for a period of two years subject to various
conditions, including that he exercise good behavior. In
2017, the prosecuting attorney filed a petition to revoke
appellant's suspension, alleging that appellant had
violated the good-behavior condition by committing a number
of new crimes, including multiple drug offenses and felony
fleeing. A warrant was issued, and appellant was arrested.
The petition to revoke was later amended to add an allegation
of second-degree battery on a law enforcement officer for
appellant's attack on a Crawford County deputy sheriff
working at the jail where appellant was being housed after
hearing on the petition, the State decided to present
evidence related only to the battery charge. The State did
not call the victim as a witness. Instead, it offered proof
in the form of testimony from two other jail officials and a
video of the attack. That evidence indicated that appellant
refused an order to leave a common area, became aggressive
with the jailers, was shocked with a Taser weapon, removed
the Taser barbs from his body, and threw a punch at Deputy
Logan Hight, hitting him in the chest. No testimony was
offered to establish the extent, if any, of injury to the
victim, and the video does not show any evidence of injury.
Appellant did not present any evidence. At the conclusion of
the hearing, the trial court found that appellant had
violated the good-behavior condition of his suspended
sentence by his attack on the officer, revoked the
suspension, and sentenced appellant to an additional two
years in prison on the underlying 2014 conviction for
possession of a controlled substance.
Sufficiency of the Evidence
argues that the revocation order should be reversed and
dismissed because the evidence is insufficient to support a
finding that he committed second-degree battery as charged in
the petition to revoke. He does not contend that the
conditions of his suspension were insufficient to communicate
that he was not to violate the law. Instead, appellant
specifically argues only that the State failed to prove that
he acted knowingly or that Deputy Hight suffered any physical
injury, which are elements of second-degree battery on a law
enforcement officer. While we agree that the physical-injury
element of the offense alleged in the petition was not
proved, we find no reversible error because the evidence was
sufficient to establish a lesser-included offense of the one
court may revoke a defendant's suspended sentence or
probation if it finds by a preponderance of the evidence that
the defendant has violated a condition of the suspension or
probation. Atteberry v. State, 2016 Ark.App. 331.
The State bears the burden of proof, but it need only prove
that the defendant committed one violation of the conditions.
Lewis v. State, 2015 Ark.App. 222. Evidence that is
insufficient for a criminal conviction may be sufficient for
revocation of a suspension. Id. On appeal, the trial
court's decision will not be reversed unless it is
clearly against the preponderance of the evidence. Mosley
v. State, 2016 Ark.App. 353, 499 S.W.3d 226. Because the
determination of a preponderance of the evidence turns
heavily on questions of credibility and weight to be given
the testimony, we defer to the trial court's superior
position to make those determinations. Mars v.
State, 2013 Ark.App. 173.
amended petition to revoke in this case accused appellant of
violating the good-behavior condition of his suspension by
committing second-degree battery on a law enforcement
officer. As is pertinent here, Arkansas Code Annotated
section 5-13-202(a)(4)(A)(i) (Supp. 2017) provides that a
person commits second-degree battery if he knowingly, without
legal justification, causes physical injury to a person whom
he knows to be a law enforcement officer while the officer is
acting in the line of duty. A person acts
"knowingly" with respect to a result of his conduct
when he is aware that it is practically certain that his
conduct will cause the result. Ark. Code Ann. §
5-2-202(2) (Repl. 2013). "Physical injury" is
defined as the impairment of physical condition; the
infliction of substantial pain; or the infliction of
bruising, swelling, or a visible mark associated with
physical trauma. Ark. Code Ann. § 5-1-102(14) (Repl.
stated, neither the witnesses nor the video established any
physical injury to the victim in this case. Nevertheless, the
law is settled that, although the evidence may be
insufficient in a revocation proceeding to sustain an
allegation that appellant committed a specific offense,
revocation will be affirmed on appeal if the evidence
establishes commission of a lesser-included offense of the
one charged. E.g., Atteberry, 2016
Ark.App. 331; Pratt v. State, 2011 Ark.App. 185;
Willis v. State, 76 Ark.App. 81, 62 S.W.3d 3
(2001). There is no requirement that
lesser-included offenses be separately charged and no
due-process problem in not doing so; because lesser-included
offenses are, indeed, included within a greater
offense, charging a person with a greater offense implicitly
charges him with all lesser-included offenses. See Hughes
v. State, 347 Ark. 696, 705, 66 S.W.3d 645, 650 (2002);
X.O.P. v. State, 2014 Ark.App. 424, 439 S.W.3d 711;
see also Original Commentary to Ark. Code Ann.
§ 5-1-110 (Repl. 1995) (primary purpose of section
5-1-110(b) is to authorize conviction of offenses not
expressly named in indictment or information). Likewise, when
a trial court finds that a person has committed an offense,
it logically also finds that he has committed the elements of
held that second-degree assault under Arkansas Code Annotated
section 5-13-206 (Repl. 2013) is a lesser-included offense of
second-degree battery on a law enforcement officer. Allen
v. State, 64 Ark.App. 49, 55, 977 S.W.2d 230, 233
(1998). A person commits second-degree assault if he
recklessly engages in conduct that creates a
substantial risk of physical injury to another
person. Ark. Code Ann. § 5-13-206(a) (Repl. 2013). A
person acts recklessly with respect to attendant
circumstances or a result of his conduct when he consciously
disregards a substantial and unjustifiable risk that the
attendant circumstances exist or that the result will occur.
Ark. Code Ann. § 5-2-202(3)(A) (Repl. 2013). In
Allen, supra, the appellant was convicted
in a bench trial of second-degree battery on a law
enforcement officer. There was evidence that Allen struck an
officer one time on the head with either his hand or his arm.
While we held on appeal that the proof was insufficient to
establish physical injury as required for second-degree
battery, we further held that the proof was clearly
sufficient to establish the lesser-included offense of
second-degree assault. Allen, 64 Ark.App. at 54-55,
977 S.W.2d at 232-33.
appellant is a relatively young man with a stocky build.
There was testimony that he refused a lawful instruction,
became aggressive with jailers, and "swung at"
Deputy Hight, hitting him in the chest. The video shows that,
after removing the Taser barbs, appellant squared his body
and threw a well-aimed, solid punch from close range in the
direction of Deputy Hight's chin or throat. The trial
court quite reasonably could have concluded that appellant
acted at least recklessly and that, had the punch connected
cleanly, there very likely would have been physical injury to
the officer. Viewing the video, it further appears that the
only thing that prevented the punch from connecting squarely
was the officer's ability to quickly dodge its full
impact. We hold that the proof in this case was clearly
sufficient to support a finding that appellant ...