Walchli v. State

• Decision Date: 12 September 2012
• Docket Number: No. CACR 12-64,CACR 12-64
• Citation: 2012 Ark. App. 473
• Parties: BUTCH LEE WALCHLI APPELLANT v. STATE OF ARKANSAS APPELLEE
• Court: Arkansas Court of Appeals

2012 Ark. App. 473

BUTCH LEE WALCHLI APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CACR 12-64

ARKANSAS COURT OF APPEALS DIVISION IV

Opinion Delivered SEPTEMBER 12, 2012

APPEAL FROM THE SEBASTIAN

COUNTY CIRCUIT COURT,

GREENWOOD DISTRICT

[NO. CR-08-68-D-G]

HONORABLE STEPHEN TABOR,

JUDGE

AFFIRMED

JOHN B. ROBBINS, Judge

Appellant Butch Lee Walchli appeals the revocation of his suspended imposition of sentence entered by the Sebastian County Circuit Court. Appellant entered a plea of guilty to first-degree criminal mischief¹ in March 2009, for which he was given a three-year term within which he was required to abide by certain conditions. The conditions included that he pay over $18,000 in aggregate for restitution, fines, costs, and fees, and that he not violate any federal, state, or municipal law. In August 2011, the State petitioned to revoke, accusing appellant of violating his agreed terms by failing to pay as required and by committing aggravated assault, residential burglary, and interference with emergency communications.The criminal charges resulted from a domestic incident on August 4, 2011, with his estranged wife, Elizabeth Walchli.

After a hearing on November 2, 2011, the trial judge found that the State proved by a preponderance of the evidence that appellant committed misdemeanor, but not felony, assault. The trial judge sentenced appellant to two years of imprisonment to be followed by eight years of suspended imposition of sentence. This appeal followed. Appellant argues on appeal that the revocation must be reversed because the State failed to prove the felony assault alleged in the petition. We disagree and affirm the revocation.

A circuit court may revoke a suspension or probation if it finds that the State proved by a preponderance of the evidence that the appellant inexcusably failed to comply with a condition of that suspension or probation. Ark. Code Ann. § 5-4-309(d) (Repl. 2006). Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for revocation of probation or suspended imposition of sentence. Jones v. State, 355 Ark. 630, 144 S.W.3d 254 (2004). On appeal, the appellant bears the burden to demonstrate that the trial court's findings are clearly against the preponderance of the evidence. Blakes v. State, 2009 Ark. App. 451, 320 S.W.3d 651. The trial court's findings are given deference because determinations of the preponderance of the evidence turn heavily on questions of credibility and the weight of the evidence. Williams v. State, 351 Ark. 229, 91 S.W.3d 68 (2002). Revocations are limited to the bases alleged in the State's petition. Harris v. State, 98 Ark. App. 264, 254 S.W.3d 789 (2007).

The evidence at the hearing included the testimony of Elizabeth, the alleged victim of the criminal acts. She testified that she and appellant had been married for three years but separated in May 2011, after which she filed for divorce. Elizabeth testified that on August 4, 2011, appellant came to her apartment, knocked on her door, and used a spare key to enter without her consent. She said she was wearing only a towel because she had just taken a shower. Elizabeth said she reached for her iPhone to call for help, but appellant pulled it out of her hand, pushed her, and then held her against the wall. She said they were arguing about custody and personal property, "hollering at each other," when she yelled in an effort to make him leave. She said appellant then turned her around so that he was up against her back, used his hands to cover her nose and mouth, and pulled back so that she could not breathe. She said she "started seeing black spots" and "honestly thought I was going to pass out." After she dropped to the floor, appellant left, and she was able to run next door.

A teenager in another apartment, Sequoiah Lively, testified that on that day, Elizabeth came to the apartment, knocked, and asked Sequoiah to call 911. She described Elizabeth as wearing a towel, having wet hair, and seeming "scared and shaky." She said she saw appellant standing out in the driveway.

Lavaca City Police Officer Charles Toon testified that he responded to the call, remarking that Elizabeth "seemed to be in a state of panic . . . crying . . . upset . . . traumatized." Officer Toon recounted the events that Elizabeth reported to him, although Toon did not observe any physical marks on her throat or face. Toon spoke with appellant at his home. Appellant said he only went to Elizabeth's apartment to retrieve his tools; hedenied any physical contact with her. Toon arrested appellant for assault on a family member.

Deputy Sonja Cooper, with the Sebastian County Sheriff's Department, transported appellant to the county detention facility in Fort Smith....