Richard Bell v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CACR04-582

FEBRUARY 2, 2005

RICHARD BELL AN APPEAL FROM THE UNION

APPELLANT COUNTY CIRCUIT COURT [CR-2002-0146-1]

V.

STATE OF ARKANSAS HONORABLE CAROL CRAFTON

APPELLEE ANTHONY, JUDGE

AFFIRMED

Olly Neal, Judge

In this appeal from the Union County Circuit Court, the trial court found that appellant had violated the terms and conditions of his probation and sentenced appellant to two years in the Regional Punishment Facility. On appeal, appellant argues that the trial court erred in denying his motions for directed verdict. Finding no error, we affirm.

To revoke probation, the burden is on the State to prove the violation of a condition of probation by a preponderance of the evidence. Cheshire v. State, 80 Ark. App. 327, 95 S.W.3d 820 (2003). The State need only prove one violation of the probation conditions for the trial court to revoke a probation. Sisk v. State, 81 Ark. App. 276, 101 S.W.3d 248 (2003). On appeal, the trial court's findings will be upheld unless they are clearly against the preponderance of the evidence. Id. Because 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. Id.

The State's petition to revoke alleged that appellant violated the terms and conditions of his probation by committing fleeing and second-degree battery. Pursuant to Arkansas Code Annotated section 5-54-125 (Repl. 1997), if a person knows that his immediate arrest or detention is being attempted by a duly authorized law enforcement officer, it is the lawful duty of such person to refrain from fleeing, either on foot or by means of a vehicle or conveyance. In Johnson v. State, 313 Ark. 308, 854 S.W.2d 336 (1993), substantial evidence of fleeing was provided when the appellant admitted that he saw the police officer coming around the corner, and when the policeman testified that the appellant and his friend ran away from him.

Officer Tom Trabbic of the Smackover Police testified that while on patrol on May 23, 2003, he saw appellant outside of a residence. Trabbic knew that a bench warrant had been issued for appellant's arrest; therefore, Trabbic got out of his patrol car and advised appellant that he needed to speak with him. Appellant ran away; Trabbic gave chase, reached out and grabbed appellant's shirt, but lost hold of the shirt and his footing. Trabbic "smacked a tree with his knee," injuring himself.

Appellant testified on his own behalf, admitting that he saw the officer approach him, that the officer asked him to come toward him, and that he ran when the officer "took off after me." He further testified that, "I knew I was fixing to go. Probably to see [Judge] Anthony. I based this on [d]rug [c]ourt and for not showing up in drug court."

Here, needing to prove only one violation to revoke appellant's probation, see Sisk v. State, supra, the State proved that appellant fled from Officer Trabbic. Appellant knew that he was subject to arrest due to his failure to appear in drug court; nevertheless, he fled on foot to avoid arrest. Therefore, because the trial court's finding that appellant violated the terms and conditions of his probation is not clearly against the preponderance of the evidence, we affirm appellant's revocation. Affirmed.

Gladwin and Robbins, JJ., agree.