Opinion
Rehearing Denied.
JOHN MAUZY PITTMAN, Judge, concurring.
I concur in the decision to deny appellant's petition for rehearing. I write for the limited purpose of responding to that part of appellant's petition in which he argues that his probation was erroneously revoked because he was improperly charged with having violated a "non-existent statue [sic]." Specifically, appellant argues that he was charged with having violated Ark.Code Ann. § 5-26-303(a)(4), which appellant contends did not exist because subsequent legislation had re-enacted § 5-26-303 without any mention of the contents of subsection (a)(4). Compare Acts 1317 and 1365 of 1999; see Arkansas Code Revision Commission notes following Ark.Code Ann. § 5-26-303 (Supp.2001). First, it should be pointed out that appellant did not clearly raise this argument in his first brief to this court. He has attempted to raise the issue for the first time in his petition for rehearing. Of course, arguments cannot be raised to this court for the first time in a reply brief, Camp v. State, 66 Ark.App. 134, 991 S.W.2d 611 (1999), much less in a petition for rehearing. National Bank of Commerce v. Beavers, 304 Ark. 81, 802 S.W.2d 132 (1991); Garrett v. Andrews, 294 Ark. 160, 744 S.W.2d 386, cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 908 (1988).
In any event, appellant is relying on a false factual premise. As pointed out in the original opinions in this case, the State (1) charged appellant by information with having committed the crime of first-degree domestic battery; and (2) filed a separate petition to revoke appellant's pre-existing probation because he had violated its conditions by committing first-degree domestic battery. The criminal information specifically charged appellant with having committed battery in the manner specified only in the questionable Act 1317, found in the subsection (a)(4) mentioned in the A.C.R.C. notes. However, the propriety of that charge is not before us, as the criminal charge resulted in a hung jury and a nolle prosequi of the charge.
The only judgment before us is the order revoking appellant's probation. Contrary to appellant's argument, the State did not limit the probation-violation allegation against appellant to any specific manner of committing the offense; in this respect, the petition to revoke accused him only generally with having "committed the offense of Domestic Battery in the First Degree." It is undisputed that there are three ways to commit first-degree domestic battery aside from the provisions of the questionable Act 1317. See Ark.Code Ann. § 5-26-303(a)(1)-(3). It is also true, as pointed out in the original majority opinion, that this court will affirm a revocation if the evidence is sufficient to support a finding that the defendant committed even a lesser-included offense of a charged 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). Here, appellant did not complain about the general nature of the allegation in the petition to revoke, move for a bill of particulars, move to have the petition made more definite and certain, or request specific findings from the trial court. As such, the trial court was free to consider whether appellant's conduct constituted, in any manner, the commission of first-degree domestic battery or a lesser-included offense thereof.
One way of committing first-degree domestic battery is to "cause [ ] serious physical injury to a family or household member under circumstances manifesting extreme indifference to the value of human life." Ark.Code Ann. § 5-26-303(a)(3). It is a lesser-included offense thereof to "recklessly cause[ ] physical injury to a family or household member." Ark.Code Ann. § 5-26-305(a)(3).
JOHN B. ROBBINS, Judge, concurring.
I concur with the majority's decision to deny appellant's petition for rehearing; however, I write to clarify the factual scenario that was presented to us by this appeal. Appellant has two prior convictions for domestic battery, one of which resulted in a sentence of probation for three years. During this three-year period, a petition for revocation was filed in which it was alleged that appellant had violated the conditions of his probation by committing the offense of domestic battery in the first degree. At a hearing in the trial court the victim's testimony included the following:
He was still fussing at my brother. I told him to leave my brother alone. I stood between him and my brother and he pushed me. I did threaten him before that, we had gotten into it [previously], and the day before this incident. I told him in the room that I would kill him and to leave me alone. I was hollering and fussing when I said it. I did not mean it, but I was mad. We were in the den when this happened. I fell on the floor, and I brought him down with me, and all I know is we were tussling and fighting. My mother was trying to break it up. My eyes were closed, and I was trying to fight him, so I cannot tell you exactly in detail what exactly happened, I closed my eyes because he was hitting on me. I cannot tell you exactly where he was hitting me. He did not hit me in the face. We were on the floor tussling and fighting. We were on the floor and mom was trying to pull us apart, I got back up and I called 911 and talked to them, and told them what happened. My mother disconnected the phone, he had a drink in his hand, and he threw it in my face. I was on the telephone and I started crying, my mother disconnected the phone. I have no idea what he was drinking and the next thing that happened is I started fussing and cussing at him, because he threw the drink in my face and we fought again. The reason why I started fussing and cussing at him and how it happened the second time is I was in his face. I do not think I hit him first. He did not hit me in the face the first time we were fighting, but he hit me in the face the second time. It was with his fist. We were still fighting and I was trying to push him, get him away from me. My mother was trying to separate us, it finally stopped, I fell on the ground and he was pulling my braids, and then I just left him alone. When I fell on the ground, he had my braids in his hand, and he was pulling my braids. He was just pulling them. I was on the ground when he pulled my braids out. I do not remember how many, but it was a lot. I went into another room and used the telephone and called somebody to come get me, and I went and waited outside until they got there. As we were leaving, the police pulled up so we turned around and went back. When I made contact with the police. I had scratches on my face, my lip was busted, and my face was swollen. My eye was hurting, it was red. And my braids were all over the ground. Next day my whole side of my face was hurting, and I could not lay on it, it was swollen and red. It felt like a headache on my face. I was in substantial pain.
Although there was testimony to the contrary, this was a matter of credibility and the trial judge obviously believed the victim. Her testimony described two distinct altercations. Even if the victim precipitated the first altercation, it had ended and the victim was making a telephone call. Her mother disconnected the telephone and appellant threw a glass of some beverage in the victim's face, and the fight was on again. It was during this second altercation that the victim testified that appellant struck her in the face with his fist.
The dissenting opinion's rationale is premised on the applicability of Ark.Code Ann. § 5-2-605(1) (Repl.1997), and Sykes v. State, 57 Ark.App. 5, 940 S.W.2d 888 (1997). However, this statute and Sykes are inapplicable and irrelevant to this appeal. The grandmother-appellant in Sykes was the duly appointed guardian of the minor ward, her grandson. She spanked her grandson with a phone cord because she could not find her belt. The spanking did not result in any bruising, bleeding or welting. Such relationship of guardian and ward is expressly included within the coverage of 5-2-605(1). We applied 5-2-605(1) and held that the physical force was justified. Here, however, appellant is neither the parent, teacher, guardian, nor a person otherwise entrusted with the care and supervision of the victim. See Ark.Code Ann. § 5-2-605(1). She is the seventeen-year-old daughter of appellant's wife. While at some time in the past she had resided with her mother and appellant, she did not reside with them at the time of the altercation. She was merely visiting in their home the evening of the incident. Consequently, 5-2-605(1) and Sykes have no application and the trial court would have erred if it had relied on them.
Our decision of November 28, 2001, which affirmed the trial court's revocation of appellant's probation, was neither a mistake nor a departure from Arkansas law. We acted consistent with our laws in affirming the appeal, and we do so again now in denying appellant's petition for rehearing.
WENDELL L. GRIFFEN, Judge, dissenting.
Our court rarely issues written opinions about decisions to deny petitions for rehearing. It is even more rare when nine judges are involved in this process; most rehearing petitions are reviewed and decided by the original three-judge panel that decided the case plus another three-judge panel. However, I am so convinced that our decision to deny rehearing in this instance is a mistaken departure from clear Arkansas law that I am obliged to write. We have denied rehearing in the instant appeal in the face of two statutes and at least one of our own decisions that contradict our original holding affirming the trial court's decision to revoke appellant's probation arising from his altercation with his stepdaughter.
Arkansas Code Annotated section 5-2-605(1) (Repl.1997) states:
The use upon another person of physical force that would otherwise constitute an offense is justifiable under any of the following circumstances: (1) A parent, teacher, guardian, or other person entrusted with care and supervision of a minor or an incompetent person may use reasonable and appropriate physical force upon the minor or incompetent person when and to the extent reasonably necessary to maintain discipline or to promote the welfare of the minor or incompetent person.
Our court based its decision to reverse a conviction of a grandmother for second-degree battery on this statute. See Sykes v. State, 57 Ark.App. 5, 940 S.W.2d 888 (1997). The appellant in that case was convicted for spanking her eleven-year-old grandson with a phone cord after the grandson was apprehended by the police for trespassing on private property. She argued on appeal that the evidence was insufficient to support her conviction. Photographs taken ten minutes after the spanking occurred showed welts on the minor's arm, a mark on his leg, and a mark on his bottom. Our court held that the evidence was insufficient to support a finding that the physical force used by the appellant in that case was unreasonable or inappropriate under the circumstances, while acknowledging that "[t]here may be more desirable methods of correction that could have been utilized in this situation...."
If using a phone cord and raising welts on an eleven-year-old boy in the course of a spanking is insufficient to support a conviction for second-degree battery because of the previously cited statute, our original decision holding that appellant's conduct was willfully inexcusable in an altercation with his seventeen-year-old stepdaughter who threatened to kill him and assaulted him with her fists in his home is a mistake. Resisting hand-to-hand assault from a teenager and inflicting minor injuries in the process certainly constitutes justifiable use of physical force. If not, section 5-2-605(1) makes no sense.
Moreover, Arkansas Code Annotated section 5-2-606(a) (Repl.1997) makes the error of our original decision even more obvious. That statute reads:
A person is justified in using physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force that he reasonably believes to be necessary....
Here, appellant did not provoke the altercation with his stepdaughter, was not the initial aggressor, and the physical force involved did not result from combat by agreement. There is no proof that appellant acted maliciously, with evil motive, or for any purpose other than to defend himself and his parental authority from the assault launched by his stepdaughter after he told her to obey her mother's directive to wash the dishes. Nevertheless, we are denying the petition for rehearing in the face of this proof and the plain language of section 5-2-606(a) which declares the use of physical force in such a situation "justified."
These Arkansas statutes and our Sykes decision plainly demonstrate the error of our original decision and show why the petition for rehearing should be granted. Contrary to the rationale declared in the original majority opinion, the original decision does not rest on witness credibility. The undisputed evidence shows that India Ledbetter (the stepdaughter) sustained bruises to her face in the course of the altercation she initiated with appellant. All the evidence--including Ledbetter's own testimony--shows that Ledbetter (a weekend guest) initiated the altercation, threatened to kill appellant, assaulted him with her fists, and then pursued him into another room of his house to continue the assault.
If Arkansas law does not justify the use of physical force in such a situation, any parental figure confronted by a defiant and violent youth not only risks physical danger, but faces loss of all reasonable expectation of authority in the home. Nothing in the cited statutes, our Sykes decision, or anything else in Arkansas law supports the notion that the people of this State intend to undermine the parental role by forcing parent figures facing such assaults to run from rebellious children and leave their homes.
I am authorized to state that Judges NEAL and CRABTREE join in this dissent.
ANDREE LAYTON ROAF, Judge, dissenting.
I would grant Obbie Willis's petition for rehearing and reverse this revocation for the reasons set out in my dissenting opinion on November 28, 2001, and because, contrary to the State's assertion, opinions of the Attorney General are not accorded the status of binding precedent by the appellate courts of this State. City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990); Klinger v. City of Fayetteville, 293 Ark. 128, 732 S.W.2d 859 (1987). Consequently, it is for a court to say whether there is such an offense as "first-degree domestic battery," Ark.Code Ann. § 5-36-303(a)(4), not the Attorney General. Courts should likewise decide whether it is permissible to send a man to the penitentiary based on a nonexistent criminal offense, as long as the evidence shows that he possibly committed some other uncharged offense. To do so is indeed to dispense "slipshod justice," and while Willis may not have made the most cogent argument in this respect, he did assert that the sole basis for his revocation was "the primary charged offense"--an offense that does not exist in Arkansas.