Willis v. State

• Decision Date: 28 November 2001
• Docket Number: 01-59
• Parties: OBBIE WILLIS, APPELLANT, V. STATE OF ARKANSAS, APPELLEE. CACR 01-59 Arkansas Court of Appeals 28 November 2001 APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT: . She first had threatened him. She told him, `I will kill you' and then she pushed him. I saw him put his hands up and step back and told her not to push him anymore. She then said she'd push him again and she did. They grabbed each other. He grabbed her hair. She grabbed his shirt and I tried to get in the middle to pull them apart. I guess we lost our balance. We all hit the floor and were steady wrestling and I was trying to get them apart. I finally told are fighting, you know, with family members and, I would think, you know, with that hanging over his head and three years' probation and facing the penitentiary, that he would run like the dickens from another family fight. I mean, plus, he supposedly has gone to domestic abuse counseling and learned not to get into fights with family . . . and a seventeen-year-old girl pushes him and suddenly, they're in a brew-ha here because he just didn't back off and say, I'm not doing this or I'm going out and have a couple of iced tea or something and get out of here because I'm not going to get into a fight with you, because I know better than that. Nothing supports the conclusion that appellant inexcusably failed to comply with the terms of his probation. While it is true that the State can establish a probation violation by evidence that is not sufficient to constitute a criminal conviction, Arkansas Code Annotated section 5-4-309(d) (Supp. 1999) clearly requires that the State prove that the defendant's failure to comply with probation terms is inexcusable. As noted by our supreme court in the recent decision of Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001), the term inexcusable means an inability to excuse or justify. The appellant in Barbee relied on information provided by the State that his driver's license was notsuspended. After noting that Barbee com
• Court: Arkansas Court of Appeals

OBBIE WILLIS, APPELLANT,

V.

STATE OF ARKANSAS, APPELLEE

CACR 01-59

Arkansas Court of Appeals

28 November 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT: [NO. CR 97-3359], HONORABLE DAVID BOGARD, CIRCUIT JUDGE AFFIRMED.

STEELE HAYS, Special Judge

In 1997 appellant 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); A.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 step-daughter 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.

Wendell L. Griffen, Judge, dissenting.

I respectfully dissent from the decision reached by the majority and would hold that the trial judge erred when he held that Willis had (1) committed domestic battery, and (2) that the supposed violation was inexcusable. A fair-minded inquiry into whether the appellant committed domestic battery under any analysis must include a review of the evidence. All of the eye-witness accounts of the incident that triggered the probation revocation petition show that India Ledbetter threatened to kill appellant and began hitting him. After she paid a greater price than she apparently expected, she summoned the police and pursued the prosecution that resulted in appellant's sentence.

From the earliest times, human moral and legal codes have recognized the authority of parent figures to administer discipline in their homes. Moreover, civilized societies have uniformly upheld the view that a child who strikes a parent commits a serious violation of social order. The Code of Hammurabi, which continued in use for centuries and exerted considerable influence on Arabic and Islamic law, prescribed that the hands would be cut off a son who struck his father. The Second Book of Moses commands that parents are to be honored (Exodus 20:12). Under Mosaic law, to strike one's father or mother was a crime punishable by death (Exodus 21:15). It was a crime, punishable by death, to even curse a parent (Exodus 21:17). The Greek scholar and philosopher Plato affirmed in The Republic that an elder is duty bound to rule and chastise a younger, and that the younger will not "strike or do any other violence to an elder, nor will he slight him in any way. For there are two guardians, shame and fear, mighty to prevent him: shame, which makes men refrain from laying hands on those who are to them in the relation of parents; fear, that the injured one will be succored by the ones who are his brothers, sons, fathers."

Until this decision, I have found nothing in the laws of Arkansas, the United States, or in the legal or moral codes of any other society known to human history that supports the notion that a child may threaten to kill and then strike a parent figure with impunity. While modern society properly does not impose the death penalty for such conduct the way that ancient societies did, the whole body of law known to humanity offers no support whatsoever for the preposterous idea that a parent figure is obligated to retreat from such a rebellious child under any circumstances. But today, the majority upholds a decision by the trial court that adjudges this appellant guilty of inexcusably violating the conditions of his probation because he did not "run from" such an attack by his stepdaughter in his own home.

Although appellant's counsel raises several points for reversal, the only one with merit concerns whether the trial court clearly erred when it revoked appellant's 1997 probationary sentence following his guilty plea to third-degree battery. In 1999, new charges were filed against appellant for first-degree domestic battery arising from an altercation between appellant and India Ledbetter, his seventeen-year-old stepdaughter. The State also filed a petition for revocation. As the majority opinion indicates, the parties stipulated that the evidence in the domestic battery jury trial would constitute the record for the revocation hearing. After the jury deadlocked on the domestic battery charge in what was reported by the prosecution to be an eleven to one split for acquittal, the State elected to nolle prosequi and dismiss that charge. Nevertheless, the trial judge found that appellant had violated the conditions of his probation, specifically, the requirement that appellant, "obey all Federal and State laws, Local ordinances, and Court orders."

Appellant is married to Natalie Willis, the mother of India Ledbetter. Ledbetter was visiting the residence of her mother and appellant when the altercation took place. According to the testimony at trial, appellant and Willis went out to visit another relative and returned home to find dirty dishes that Ledbetter left in the kitchen sink. Ledbetter's mother told her to wash the dishes; however, Ledbetter refused and tartly said she would wash the dishes the next day. When her brother (Cory Williams) commented to his mother that he was required to perform tasks immediately, appellant told Ledbetter that she needed to wash the dishes. Ledbetter then began arguing with appellant. Appellant walked away from Ledbetter and...