Willis v. State , 76 Ark. App. 81 ( 2001 )

STEELE HAYS, Special Judge.

In 1997 was convicted of third-degree battery on a plea of guilty. He was placed on probation for a term of three years.

New charges were filed against appellant in 1999, consisting of first-degree domestic battery and revocation of probation under his previous sentence.

The state and the defense stipulated that the evidence introduced at trial would serve as the revocation hearing. The jury was unable to agree on a verdict and reportedly was deadlocked eleven to one for acquittal. Facing a near unanimous verdict of acquittal, the state elected to nolle prose the domestic battery count and that charge was dismissed.

The trial court found that appellant had violated the conditions of his probation and imposed a sentence of five years. Appellant asks us to reverse on four assignments of error: 1) the trial court erred by denying appellant’s Batson motion; 2) erred by allowing the prosecutor to state the specifics of a proposed plea bargain relative to the domestic battery count; 3) erred by admitting evidence of appellant’s criminal history during the trial; and 4) erred by finding sufficient evidence that appellant had breached the conditions of his probation. We affirm the trial court.

Appellant’s first three points for reversal relate to alleged trial errors. They cannot be addressed because the mistrial of the first-degree domestic battery charge renders them moot. Johnson v. State, 319 Ark. 3, 888 S.W.2d 661 (1994). The law affords no appeal absent a conviction. Webb v. State, 48 Ark. App. 216, 893 S.W.2d 357 (1995); Ark. R. App. P. — Crim. 1 (2000).

In the remaining point for reversal, insufficiency of the evidence for revocation, appellant insists he bore no lawful relationship to his step-daughter, the reputed victim. She was merely the daughter of his spouse and, hence, she did not come within the ambit of Ark. Code Ann. § 5-26-302, defining a “family or household members.” We decline to consider this premise, however, because it was not offered to the trial court and may not be initiated in this court. Yancey v. State, 71 Ark. App. 280, 30 S.W.3d 117 (2000).

Turning to the merits of point four, appellant concedes there was an altercation between his seventeen year old stepdaughter and himself, but he maintains she was the aggressor and he was merely defending himself in the face of her repeated threats that she would kill him. Admittedly, he pushed her, but only after she pushed him.

That version does not fully comport with the record. The stepdaughter testified she had previously resided with her mother and the appellant, but at the time of the altercation she only spent alternate weekends with them. During one such weekend an argument developed when she refused appellant’s directive to wash the dishes. Words grew heated and she pushed appellant, he pushed her back and they fell to the floor in the struggle. Appellant's wife managed to separate them briefly but the fracas was soon renewed and appellant struck the young woman in the face with his fist. She described her face as scratched and swollen and her lip lacerated. She readily admitted she had pushed appellant and had twice told appellant she would kill him.

Two officers who had been called to the scene testified. One observed marks around her left eye, the other noted some swelling next to her eye. Another witness described her face as badly bruised and swollen.

There was testimony to the contrary. Appellant’s spouse and his thirteen year old stepson testified. The latter essentially confirmed the particulars of the quarrel except he denied seeing appellant strike his sister. The former denied that appellant had either pushed or struck her daughter. She was unable to explain how her daughter’s face got “all messed up.”

With respect to the admitted threats by the stepdaughter directed toward the appellant, without discounting the seriousness of such remarks, nothing in the record suggests the young woman had either the means or the inclination to-act accordingly, or that her words were taken seriously by the appellant. By all indications, they were simply an intemperate outburst spoken in anger, and we are satisfied the trial court viewed them in that light.

It was the prerogative of the trial court to resolve any discrepancies in the testimony and to determine, by a preponderance of the evidence, whether appellant’s probation was revocable. His finding in the affirmative is entirely consistent with the proof.

Judge Roaf, in dissent, would distinguish this case from Davis v. State, 308 Ark. 481, 825 S.W.2d 584 (1992) and Robinson v. State, 14 Ark. App. 38, 684 S.W.2d 824 (1985). It remains, however, settled law that although the evidence may be insufficient in a probation revocation proceeding to sustain an allegation that appellant committed a specific offense, revocation will be sustained if the evidence establishes a lesser included offense. See Selph v. State, 264 Ark. 197, 570 S.W.2d 256 (1978); Venable v. State, 27 Ark. App. 289, 770 S.W.2d 170 (1989); Felix v. State, 20 Ark. App. 44, 723 S.W.2d 839 (1987).

Affirmed.

Robbins, Bird and Baker, JJ., agree. Griffen and Roaf, JJ., dissent.