Terrance A. Eatmon v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION I

CACR02-221

November 20, 2002

TERRANCE A. EATMON AN APPEAL FROM SEBASTIAN

APPELLANT COUNTY CIRCUIT COURT

[CR98-997; CR99-297; 99-298; 99-803]

V. HON. NORMAN WILKINSON, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Terrance A. Eatmon appeals from an order revoking his suspended sentences and sentencing him to the Arkansas Department of Correction. Appellant's sole argument is that there was insufficient evidence to support the revocation. We disagree and affirm.

On October 6, 1999, appellant pled no contest to numerous felony charges1 for which he was sentenced to the Arkansas Department of Correction for three years, with an additional seven years suspended on the class C felonies and three years suspended on the class D felonies. One of the conditions of his suspended sentences was that appellant notcommit any offense in violation of federal, state, or municipal law. On November 1, 2001, the State filed an amended petition to revoke appellant's suspended sentences alleging that he had committed the offense of second-degree battery on September 12, 2001. A revocation hearing was held, after which the trial court found that appellant had violated the conditions of his suspended sentences, revoked his suspended sentences, and sentenced him to prison. On appeal, appellant argues that the trial court erred in granting the State's petition to revoke for the reason that there is insufficient evidence that appellant violated the terms and conditions of his suspended sentences.

In revocation proceedings, the burden is on the State to prove by a preponderance of the evidence that the defendant failed to comply with a condition of his suspension. Greene v. State, 324 Ark. 465, 921 S.W.2d 951 (1996). Because the State's burden in revocation proceedings is only a preponderance of the evidence, evidence that is insufficient to support a criminal conviction may be sufficient to revoke a suspended sentence. Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001).

The State alleged that appellant committed the offense of second-degree battery against Derek Sawyer. A person commits second degree battery if "[w]ith the purpose of causing physical injury to another, he causes serious physical injury to any person." Ark. Code Ann. § 5-13-202(a)(1) (Supp. 2001). Serious physical injury is defined as "physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ." Ark. Code Ann. § 5-1-202(19) (Supp. 2001).

The record reveals that on September 12, 2001, several people were visiting the home of Derek Partin, including appellant and Sawyer. Appellant testified that he approached Sawyer to discuss $50 dollars Sawyer owed him for a tattoo and that Sawyer became angry when he asked for collateral, hitting him in the face. Appellant said that he hit Sawyer back in self-defense although he admitted hitting Sawyer "in the face and on top of the head and then he fell back on the bed and then I pulled him off the bed. I don't remember kicking him in the head, but I kicked him." According to appellant, he did not intend to hurt Sawyer badly enough to put him in the hospital.

Christopher Vines, who was present during the fight, said that he did not see Sawyer throw any punches, but remembers seeing appellant hit Sawyer more than once. Sawyer testified that appellant approached him in a buddy-buddy manner to talk about the money he owed appellant when suddenly appellant hit him, jumped on top of him, and proceeded to beat him on his head. Sawyer said appellant kicked him in the eye as appellant was being pulled off of him. According to Sawyer, he never hit appellant. As a result of this altercation, Sawyer's lower orbital floor of his left eye was completely crushed; he had to have a titanium plate placed underneath that eye to keep his eyeball from drooping; and his nose had to be fixed in four different places. Sawyer had more than five-thousand dollars in medical expenses.

Appellant contends that the State failed to prove that he had the purposeful intent to injure Sawyer or that Sawyer actually suffered serious physical injury. He asserts that there was no corroborating testimony that he started the fight since both he and Sawyer accusedthe other of being the aggressor and since he allege self-defense.

Because of the difficulty in ascertaining a person's intent, a presumption exists that a person intends the natural and probable consequence of his acts. Brown v. State, 54 Ark. App. 44, 924 S.W.2d 251 (1996); See Ark. Code Ann. § 5-2-202(1) (Repl. 1997). Appellant, Sawyer, and Vines all stated that appellant hit Sawyer several times, which resulted in Sawyer having to go to the hospital and incurring more than five thousand dollars in medical expenses. Although appellant argues he hit Sawyer out of self-defense, self-defense is a question of fact to be determined by the trier of fact, and on conflicting testimony, as was the case here, the trial court was not bound to decide the issue of self-defense in appellant's favor. Taylor v. State, 28 Ark. App. 146, 771 S.W.2d 318 (1989). Accordingly, on these facts, the trial court was justified in inferring that appellant acted with the purpose of causing serious physical injury and finding that he committed second-degree battery against Sawyer. Thus, based on a review of the above evidence, we hold that the trial court's finding that appellant had violated the conditions of his suspended sentences was not clearly against the preponderance of the evidence.

Affirmed.

Hart and Jennings, JJ., agree.

1 The prior charges to which appellant pled no contest include two counts of theft of property, commercial burglary, possession of drug paraphernalia, theft by receiving, and aggravated assault.