Ricky Elkins v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION IV

RICKY ELKINS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-396

February 19, 2003

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[NO. CR-2000-545]

HONORABLE J. MICHAEL FITZHUGH, JUDGE

AFFIRMED

In April of 2001, the appellant pled guilty to second-degree battery for which the court suspended imposition of sentence for a period of three years. As a condition of the suspended sentence, the appellant was to have no "offensive contact" with the victims of the crime, his two step-sons. On December 6, 2001, the State filed a petition to revoke alleging that appellant had violated the aforementioned condition. After a hearing, the trial court revoked appellant's suspended sentence and sentenced him to a term of six years in prison. Appellant argues on appeal that the trial court's decision is clearly against the preponderance of the evidence. We disagree and affirm.

To revoke probation, the burden is on the State to prove the violation of a condition by a preponderance of the evidence. Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1988). On appeal, the trial court's findings will be upheld unless they are clearly againstthe

preponderance of the evidence. Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001). Since the determination of a preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the trial judge's superior position. Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002).

Karen Efrud, a counselor at Charleston Elementary School, testified that B.E., appellant's step-son, was brought into her office the Monday after Thanksgiving in 2001. The child was crying and told her that appellant had hit him with a pool stick. She said that the child had a large bruise across his arm like a "stripe," and that he had a large bruise and knot on his knee.

Darcy Bryan, a DHS investigator, testified that the child also told him that appellant had hit him with a pool stick the past weekend. Bryan said that the child had two linear bruises on his left arm and various bruises around his knee. Bryan said that he had spoken with B.E.'s younger brother, C.E., who told him that appellant had hit them both with a pool stick.

B.E. testified that appellant hit him on the leg and arm with a pool stick for fighting with his little brother over a pool game. The child said that appellant also hit his little brother in the head with the stick. B.E. testified that he still had a dent in his knee where appellant had struck him.

K.F., a friend of B.E.'s, testified on behalf of appellant. He said that he was present when the boys got into trouble for arguing over the pool game. K.F. testified that appellant told B.E. that he was going to get a whipping and that B.E. dropped to the floor to keep frombeing struck. He said that appellant hit B.E. with the pool stick on the back of the leg one time and that appellant hit C.E. with the stick twice on the bottom. K.F. testified that they had been playing war with little pipes in the backyard before the incident, and he said that B.E. had gotten hurt while they were playing.

Donna Brown, K.F.'s mother, testified that she had chastised the boys for sword fighting that day because one of them had gotten hurt. She was not present when the incident occurred, but she said that appellant does not have physical contact with the children when disciplining them and that instead he makes them stand in a corner or go to their room.

Rena Jones testified that she and her sister lived with appellant and the boys. She and her sister were hanging curtains in a bedroom when C.E. came in and complained that B.E. and K.F. were cheating. She said that the boys took the argument to appellant and that she heard appellant say, "drop." Afterward C.E. and B.E. were crying, but she said that she did not hear anything about anyone being struck.

Appellant testified that he did not strike either boy with the pool cue. He said that B.E. had dropped to the floor with his bottom in the air and that he had only touched B.E. on the bottom as he told the child to "get your butt down." Appellant testified that the word "drop" was a military term for pushups and sit-ups. He said that B.E. was upset because their mother had missed visitation.

In arguing that the evidence is insufficient, appellant contends that B.E.'s testimony was suspect and that he made this accusation because he missed his mother and wanted to live with her. He suggests that the child was injured during the sword fight with otherchildren. This case boils down to the question of credibility, which was a matter for the trial court to resolve. As a condition of his suspended sentence, appellant was to have no offensive contact with the children. There was testimony that appellant struck the child with a pool stick on the arm and knee with sufficient force to leave bruises. We cannot say that the trial court's decision is clearly against the preponderance of the evidence.

Affirmed.

Baker and Roaf, JJ., agree.