Abraham A. Reid a/k/a Anderson v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

DIVISION III

ARKANSAS COURT OF APPEALS

CACR 00-79

November 29, 2000

ABRAHAM A. REID aka ANDERSON AN APPEAL FROM SEBASTIAN

APPELLANT COUNTY CIRCUIT COURT

[CR-99-109]

V. HON. JAMES R. MARSCHEWSKI

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

WENDELL L. GRIFFEN, Judge

On February 10, 1999, appellant Abraham Reid pled guilty to theft by threat and received a suspended imposition of sentence for five years conditioned on good behavior. Appellant was not to violate any federal, state, or municipal laws. The State filed a petition to revoke appellant's probation on August 10, 1999, alleging that appellant committed the offense of third-degree domestic battery. Following a revocation hearing on October 1, 1999, the trial court sentenced appellant to twenty-four months at the Arkansas Department of Corrections, and suspended an additional term of eight years. Appellant now contends that the revocation was clearly against the preponderance of the evidence. We affirm because appellant failed to properly preserve his sufficiency of the evidence challengebelow. Even if we were to address appellant's argument, we would hold that the trial court's finding that appellant violated the terms and conditions of his suspended sentence is not clearly against the preponderance of the evidence.

According to testimony presented at the revocation hearing, Brooke Kamra Kendall and appellant had a fight on June 29, 1999, that left Brooke with bruises on her arm and a busted lip. She testified that she had pain associated with the bruising that lasted a day or so. Brooke also testified that the bruising lasted close to a week, that she never went to the doctor, and that she took Tylenol for a couple of days for pain.

Brooke's mother, Jacqueline Kendall, testified at the revocation hearing that Brooke called her on June 29th, upset and crying. She stated that she went to her daughter's apartment, and Brooke appeared shaken up and shocked. Mrs. Kendall testified that one side of Brooke's lip was swollen and bruised, and that Brooke's left upper arm was bruised.

The State rested. The defense presented no evidence and made no motion for a directed verdict. However, during closing arguments the defense argued that the State failed to show that there was physical impairment or substantial pain. It emphasized the fact that Brooke did not seek medical treatment as evidence that the pain was not substantial, and argued that evidence of bruises does not constitute an impairment or substantial pain. Defense counsel also argued that the State failed to show that appellant's conduct was purposeful or reckless. At the end of closing arguments, the trial court found that appellant violated the conditions of his suspended sentence by striking Brooke and causing injury to her. The court sentenced appellant to two years' imprisonment and suspended an additionaleight years, conditioned on appellant having no contact with Brooke.

Appellant now argues that the revocation was clearly against the preponderance of the evidence because the State failed to prove that Brooke suffered physical impairment. The State responds that appellant failed to properly abstract his notice of appeal, and that appellant failed to preserve his challenge to the sufficiency of the evidence.

We initially address the State's contention that appellant failed to properly abstract his notice of appeal. When a notice of appeal is not properly abstracted, we do not have jurisdiction to review an appellant's claim and will dismiss it. See Cannon v. State, 58 Ark. App. 182, 185, 947 S.W.2d 409, 410 (1997). Thus, we have a duty to determine if a notice of appeal is timely filed, even when the parties do not raise this issue. See id., 947 S.W.2d at 410.

Appellant abstracted his notice of appeal with the language "[a]ppellant filed a timely notice of appeal and designation of record." A review of the record reflects that judgment was entered against appellant on October 6, 1999, and appellant filed a notice of appeal on October 26, 1999. Thus, appellant's notice of appeal is timely and we have jurisdiction.

Although appellant's notice of appeal is timely, we hold that appellant failed to properly preserve his sufficiency of the evidence challenge. In order to preserve a sufficiency of the evidence challenge of a revocation proceeding for appellate review, an appellant is required to make a specific motion for a directed verdict at the close of the State's case, and at the close of all the evidence. See Miner v. State, 70 Ark. App. 142, 15 S.W.3d 356 (2000), aff'd. 342 Ark. 283, 28 S.W.3d 280 (2000). When this is not done, anappellant is procedurally barred from raising an insufficiency challenge on appeal. See Miner, supra.

Here, after presenting the testimony of its witnesses, the State rested. Counsel for appellant stated that appellant had no evidence to present. The court then directed counsel to proceed with closing arguments. Counsel for appellant did not make a specific motion for a directed verdict at the close of the State's case but merely made a closing argument that directed the court's attention to an alleged lack of proof. Because appellant failed to make a specific motion for a directed verdict, he is procedurally barred from challenging the sufficiency of the evidence on appeal and we do not reach the merits of appellant's claim.

Even if this court were to address the merits of appellant's argument, it would fail.

We note that in a revocation hearing, the State bears the burden of proving by a preponderance of the evidence that a defendant violated a condition of the suspended sentence. See Tipton v. State, 47 Ark. App. 187, 188, 887 S.W.2d 540, 542 (1994). We will not reverse a trial court's findings in a revocation proceeding unless the findings are clearly against a preponderance of the evidence. See id. at 188-89, 887 S.W.2d at 542.

In the case at bar, appellant contends that Arkansas Code Annotated section 5-13-203 (Repl. 1997), which is entitled "Battery in the third degree," required the State to prove thatBrooke suffered from a physical injury or that she was inflicted with substantial pain.1 Appellant ignores our well settled rule that evidence that will not support a conviction may be sufficient to support a revocation. See Shaw v. State, 65 Ark. App. 186, 191, 986 S.W.2d 129, 131 (1999). The State is only required to prove that a defendant inexcusably violated a term or condition of the suspended sentence by a preponderance of the evidence. See id. at 188, 986 S.W.2d at 130. There is no requirement that the court find guilt beyond a reasonable doubt to revoke a suspended sentence, because a defendant in a revocation hearing is not being tried on a criminal charge. See Ellerson v. State, 261 Ark. 525, 531, 549 S.W.2d 495, 498 (1977). Thus, the evidence adduced at a revocation proceeding need not have the same quality nor degree of proof as evidence adduced at a criminal trial. See id. at 531, 549 S.W.2d at 498.

Third-degree domestic battery occurs when a person purposely or recklessly causes physical injury to a family or household member. See Ark. Code. Ann. § 5-26-305(a)(1)-(2) (Supp. 1999). Prior to July 1999, physical injury was defined statutorily as "the impairment of physical condition or the infliction of substantial pain." See Ark. Code Ann. § 5-1-102(14) (Repl. 1997). We have held that pain is subjective. See Gilkey v. State, 41 Ark. App. 100, 103, 848 S.W.2d 439, 440 (1993). It is not necessary that a victim seek medical treatment in order for the trier of fact to determine that she sustained a physical injury. SeePettigrew v. State, 64 Ark. App. 339, 351, 984 S.W.2d 72, 78 (1998). Also, when determining whether there was substantial pain, the trier of fact must consider all of the testimony before it, including the severity of the attack, and the particular sensitivity of the body part that was injured. See id., 984 S.W.2d at 78. There is no requirement that the trier of fact set aside its common knowledge, and the trier of fact should consider the evidence in lieu of the trier of fact's everyday life experiences. See id., 984 S.W.2d at 78.

Turning to the instant case, the trial court, serving as the trier of fact, was presented with testimony by three witnesses, including the victim, that appellant struck the victim's lip and bruised her arm, which stayed bruised for a one week period. The victim also testified that she had pain associated with the bruising and took Tylenol as needed for the pain. She also stated that her lip was purple, black, and very swollen. The court also had before it the terms and conditions of appellant's suspended sentence, which stated that appellant was to maintain good behavior and not violate any federal, state, or municipal law. Based on the evidence that appellant was involved in the altercation that resulted in the injuries mentioned, the trial court's decision to revoke appellant's revocation was not clearly erroneous.

Affirmed.

Koonce and Stroud, JJ., agree.

1 Act 1475 of 1999 amended Arkansas Code Annotated section 5-1-102(14) (Repl. 1997), which provides the definition of battery, to include "the infliction of bruising, swelling, or visible marks associated with physical trauma." However, at the time of this incident, Act 1475 had not taken effect.