Dubois v. State, CACR07-944 (Ark. App. 5/28/2008)
| Decision Date | 28 May 2008 |
| Docket Number | CACR07-944 |
| Parties | Terry DUBOIS, Appellant v. STATE of Arkansas, Appellee |
| Court | Arkansas Court of Appeals |
Appeal from the Randolph, County Circuit Court; No. CR-05-184 Honorable Harold S. Erwin, Judge.
Affirmed.
Appellant Terry Dubois challenges the revocation of his suspended sentence asserting three points of error: (1) the trial court erred by failing to assure that the provisions of Ark. Code Ann. § 5-4-310 were met prior to the revocation of appellant's suspended sentence; (2) the trial court erred in revoking appellant's suspended imposition of sentence because the State failed to prove that appellant acted with a purpose to cause public inconvenience, annoyance or because the State did not establish the required elements of disorderly conduct; and (3) the trial court erred in revoking appellant's suspended imposition of sentence because the State failed to prove that appellant inexcusably violated the term of his suspended imposition of sentence. We find no error and affirm.
On February 23, 2006, appellant pleaded guilty to first-degree terroristic threatening, criminal mischief, disorderly conduct, and aggravated assault. He was given 60 months' suspended imposition of sentence on the criminal-mischief conviction. On April 23, 2007, a petition to revoke his suspended imposition of sentence was filed alleging that appellant had committed the offense of disorderly conduct on or about November 4, 2006, thereby violating the provision of his suspension that required him not to violate any federal, state or municipal law for which he could receive a sentence of incarceration. On June 27, 2007, after a revocation hearing, the suspended imposition of sentence was revoked, and the appellant was sentenced to serve 60 months' imprisonment for terroristic threatening and 36 months' imprisonment for aggravated assault, to be served concurrently.
Appellant argues for the first time on appeal that the trial court erred by failing to provide a written statement of evidence relied upon in revoking the suspended imposition of sentence, urging this court to consider its holding that a defendant waives his right to a written statement of evidence by not objecting in the trial court. Sisk v. State, 81 Ark. App. 276, 101 S.W.3d 248 (2003). He argues that since Ark. R. Crim. P. 33.1 has been interpreted by the supreme court in Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001), to allow the appellant of revocation hearings to raise sufficiency issues for the first time on appeal, leniency should also extend to allow argument based on issues caused by the court's failure to provide a written statement to the appellant; that failure prejudices the appellant's ability to prepare an adequate appeal as it has in the present case. We decline to overrule our holding in Sisk. See also Brandon v. State, 300 Ark. 32, 776 S.W.2d 345 (1981). Therefore, appellant waived his right to a written statement at the trial level, and his argument is unavailing.
Similarly, appellant's second aspect of his argument—that his revocation cannot stand because the trial court failed to hold a preliminary hearing or meet the conditions under which a preliminary hearing is not required pursuant to Ark. Code Ann. § 5-4-310 (Repl. 2006)—is unavailing in that it is raised for the first time on appeal. See London v. State, 354 Ark. 313, 125 S.W.3d 813 (2003) ().
Neither did the trial court err by revoking appellant's suspended sentence as the State proved by a preponderance of the evidence that appellant inexcusably violated a term of his suspended sentence. A suspended sentence may be revoked if the trial court finds by a preponderance of the evidence that the defendant inexcusably violated a term of that suspension. Ark. Code Ann. § 5-4-309 (Repl. 2006); Richardson v. State, 85 Ark. App. 347, 157 S.W.3d 536 (2004). Revocation is justified by the violation of any one condition of suspension. Ross v. State, 22 Ark. App. 232, 738 S.W.2d 112 (1987).
Appellant's revocation was based on his commission of a criminal offense, disorderly conduct. The relevant statutory definition of disorderly conduct is as follows:
(a) A person commits the offense of disorderly conduct if, with the purpose to cause public inconvenience, annoyance, or alarm or recklessly creating a risk of public inconvenience, annoyance, or alarm, he or she:
(1) Engages in fighting or in violent, threatening, or tumultuous behavior;
(2) Makes unreasonable or excessive noise;
(3) In a public place, uses abusive or obscene language, or makes an obscene gesture, in a manner likely to provoke a violent or disorderly response;
...
(b) Disorderly conduct is a Class C misdemeanor.
Ark. Code Ann. § 5-71-207 (Repl. 2006). The crime is a Class C misdemeanor punishable by incarceration. Ark. Code Ann. § 5-4-401(b)(3) (Repl 2006).
The State alleged that appellant exhibited disorderly conduct on November 4, 2006, at the Randolph County Medical Center. Appellant argues that the State's case fell short of proving that his behavior was purposeful and inexcusable. He asserts that the State failed to present evidence that it was appellant's purpose to cause annoyance at the Center. At the hearing, Anita Barlow, an emergency-room registered nurse at the Center, a public facility, testified that she came into contact with appellant when he reported to the emergency room with chest pains. She stated that appellant often reports to the hospital complaining of chest pain. She described how she took him to a room, hooked him up to a heart-racing monitor, and obtained a set of vital signs consisting of temperature, blood pressure, respiration, heart rate, and pulse-oxygen. She then notified a doctor that a patient had presented with chest pain and followed the protocol order, i.e., an EKG and lab work. Nurse Barlow testified that persons complaining of chest pain do not have to wait in the emergency room, but instead, are taken into a room for treatment right away. She also explained that appellant receives the same treatment every time that he comes to the hospital and presents with chest pain.
After the EKG and lab work were completed and reviewed, it was determined that appellant was not having a heart attack, and appellant was discharged. He reacted angrily demanding nitroglycerin tablets for his heart and phenergan for nausea, despite the fact that he had not reported nausea, but the doctor refused to give him the drugs. Appellant was swearing and threatening, and he demanded that the hospital give him a ride home. In the presence of patients and staff, appellant continued "hollering and yelling" and using profanity for about 15 minutes. These actions caused Nurse Barlow to be afraid of appellant. She called the police, and when they arrived, appellant was belligerent to them, continuing to rant and using profanity. He was removed by the police. Subsequent to that removal, appellant engaged in the same behavior—presenting for chest pain then screaming and yelling angrily when no problem required medication. Nurse Barlow testified that she is afraid of him every time he behaves...
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