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Caldwell v. State

Court of Appeals of Arkansas, Divisions I and II

December 5, 2018

DAVID CALDWELL APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT [NO. 17CR-14-281] HONORABLE GARY COTTRELL, JUDGE

          Lisa-Marie Norris, for appellant.

          Leslie Rutledge, Att'y Gen., by: Jacob H. Jones, Ass't Att'y Gen., for appellee.

          N. MARK KLAPPENBACH, JUDGE

         David 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.

         Appellant 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 his arrest.

         At the 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.

         I. Sufficiency of the Evidence

         Appellant 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 charged.

         A trial 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.

         The 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.[1] 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. 2013).

         As 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.[2] 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).[3] 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 lesser-included offenses.

         We have 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.

         Here, 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 ...


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