Mark Austin v. State of Arkansas

Annotate this Case
ar01-521

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION II

CACR 01-521

January 16, 2002

MARK AUSTIN AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

VS.

HONORABLE JOHN PLEGGE,

STATE OF ARKANSAS CIRCUIT JUDGE

APPELLEE

AFFIRMED

On March 1, 2000, appellant pled guilty to second-degree battery and was placed on probation for five years. Among the conditions of his probation were that he violate no law and that he have no contact with the battery victim, Tanya Flowers. On May 2, 2000, the State filed a petition to revoke alleging that appellant had violated the "no-contact" condition of his probation and that he had also violated the law by committing the offense of third-degree domestic battery. Appellant was subsequently charged byinformation with terroristic threatening and third-degree domestic battery.

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The revocation and criminal charges were tried to the court in the same proceeding. The court found that appellant had violated the terms of his probation but allowed him to remain on probation and imposed a fine of $100. The court also found appellant guilty of the battery offense, fined him $500, and sentenced him to six months in jail, suspended on good behavior.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw on the grounds that the appeal is without merit. This motion was accompanied by a brief referring to everything in the record that might arguably support an appeal. All objections, motions, and requests made by appellant and denied by the court have been abstracted. The clerk of this court mailed appellant at his last-known address a copy of his counsel's brief and a notification advising him of his right to file a pro se list of points within thirty days. The package sent to appellant was returned "unclaimed" with a notation that the post office had attempted delivery on two occasions.

At trial, Jacksonville Patrolman John Alberson testified that on April 18, 2000, he was off-duty and at a convenience store when he heard Ms. Flowers screaming and running through the parking lot. She was bleeding from the head and being chased by appellant. Alberson testified that appellant caught up with her, spun her around, and then slammed her against the plate-glass window of the store. Alberson intervened and identified himself as a police officer. He said that appellant stood there for a moment as if wondering what to do and that appellant left in his truck. Alberson instructed the attendant at the store to call 911, and he followed appellant to a nearby residence where he was arrested.

Officer Greg Oginski responded to the 911 call from the store. He testified that Ms. Flowers was "real hysterical" and that blood was dripping onto her clothing and onto the floor. He said that Ms. Flowers told him that she had been riding with appellant in his truck, that they had argued, and that appellant had struck her twice on the forehead. She explained that the blows had cut her because appellant had been wearing a ring. Ms. Flowers further related that appellant was her boyfriend, that they had lived together off and on, and that they had just recently gotten back together.

Appellant testified that he was with Ms. Flowers because she was moving from the apartment they had shared and they were dividing their belongings. He said that a police officer stopped by and asked him to take Ms. Flowers to the police station to clear up a warrant that had been issued for her arrest. Appellant testified that they began arguing in the truck and that Ms. Flowers jumped out of the moving vehicle. He said that he did not lay a hand on her and that she must have been injured when she jumped out of the truck. He denied that he spun her around and threw her against the store window. He also denied that he was still living with her on the date in question.

A person commits third-degree domestic battery if, with the purpose of causing physical injury to a family or household member, a person causes physical injury to a family or household member. Ark. Code Ann. § 5-26-305(a) (Supp. 1999). The term, "household member," means persons who are presently residing or cohabitating or in the past have cohabitated together. Ark. Code Ann. § 5-26-302(6) (Supp. 1999).

In the directed-verdict motion, appellant argued that there was insufficient evidence to prove that he and Ms. Flowers had lived together and that, other than hearsay testimony, there was no evidence that he inflicted the injuries on Ms. Flowers that day. In reviewing the sufficiency of the evidence, we consider all ofthe evidence, including that which may have been inadmissible, in the light most favorable to the appellee and affirm if there is substantial evidence to support the verdict. Irvin v. State, 28 Ark. App. 6, 771 S.W.2d 26 (1989). We hold that there was substantial evidence to support the conviction.

On appellate review, we uphold a revocation unless the trial court's findings are clearly against the preponderance of the evidence. Shaw v. State, 65 Ark. App. 186, 986 S.W.2d 129 (1999). Although counsel states that the sufficiency issue is not preserved for appeal because no motion for dismissal was made, under the law as it now stands a defendant need not move for dismissal in a revocation case in order to preserve the sufficiency of the evidence for review. Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001). From our review, the trial court's finding that appellant violated the conditions of his probation is not clearly against the preponderance of the evidence.

At the outset of trial, appellant moved for a continuance on the ground that the victim, Ms. Flowers, was not in attendance for trial. It was pointed out that the victim had been served with a subpoena and that a pick-up order had been issued to compel her attendance, but that officers had been unable to locate her. It was said that she was evading service and that she might still be living with appellant. In denying the motion, the court observedthat it was unlikely that the witness would ever appear for trial. The grant or denial of a continuance is within the sound discretion of the trial court, and its decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Dyer v. State, 343 Ark. 422, 36 S.W.3d 724 (2001). The likelihood of procuring the witness's attendance at trial is an appropriate consideration. See Anthony v. State, 339 Ark. 20, 2 S.W.3d 780 (1999). Under the circumstances, the trial court had the discre tion to deny appellant's request for postponement. See Wilkins v. State, 324 Ark. 60, 918 S.W.2d 702 (1996).

The trial court overruled appellant's objection to Officer Alberson's testimony that Ms. Flowers appeared "scared" and that she was "frantically" running across the parking lot. Appellant objected to the officer stating those conclusions. There was no error. Rule 701 of the Arkansas Rules of Evidence allows the admission of opinion testimony by lay witnesses, if the opinions or inferences are: (1) rationally based upon the opinion of the witness; and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue. The requirements of Rule 701 are satisfied if the opinion or inference is one which a normal person would form on the basis of observed facts. Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996). Testimony of the kindobjected to here is admissible under the rule. See Felty v. State, 306 Ark. 634, 816 S.W.2d 872 (1991).

On hearsay grounds, appellant objected to Officer Alberson's testimony that Ms. Flowers was screaming, "Get this f____ away from me. Somebody help me." The trial court allowed the testimony under the excited utterance exception to the rule against hearsay. Appellant raised the same objection to Officer Oginski's testimony concerning what Ms. Flowers had told him about her injuries. The trial court ruled that this testimony was also admissible under the excited utterance exception. Rule 803(2) of the Arkansas Rules of Evidence provides that an excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. In order to correctly apply this exception, the court must find that there was a startling event and that at the time the utterance was made the declarant was still under the stress of excitement resulting from that event. Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999). Here, the victim had been struck in the head and was bleeding profusely, and she was described as being "hysterical" and "frantic." We find no abuse of discretion. We also note that the admission of hearsay testimony under a well-recognized exception to the rule against hearsay does not run afoulof the Confrontation Clause. See Idaho v. Wright, 497 U.S. 805 (1990).

From our review of the record and the brief presented to this court, we find compliance with Rule 4-3(j) of the Rules of the Arkansas Supreme Court and the Court of Appeals and conclude that the appeal is without merit. Accordingly, counsel's motion to be relieved is granted, and the judgment of conviction is affirmed.

Affirmed.

Pittman and Vaught, JJ., agree.

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