NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

ANDREE LAYTON ROAF, JUDGE

DIVISION II

EDDIE ISOM

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR00-1092

JUNE 6, 2001

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, CR-93-59, CR-93-273 & 274, CR-93-284

HON. J. MICHAEL FITZHUGH, JUDGE

AFFIRMED

Eddie Isom appeals from an order of the Sebastian County Circuit Court revoking his suspended sentence for committing second-degree battery and sentencing him to five years in the Arkansas Department of Correction. He argues that the evidence was insufficient to support the judgment. We affirm.

On April 13, 1993, Isom pleaded guilty to burglary and was sentenced to ten years' imprisonment with five years suspended. On July 19, 1993, he pleaded no contest to robbery, theft of property, and two counts of burglary, and he received a twenty-year sentence with thirteen-and-one-half years suspended. One of the conditions of Isom's suspended sentencewas that he not violate any federal, state, or municipal law. On October 14, 1997, Isom was released from the Arkansas Department of Correction.

On May 1, 2000, the State filed an amended petition to revoke Isom's suspended sentence, alleging that he had committed the offense of second-degree battery. At Isom's revocation hearing, John Nelson testified that on April 17, 2000, there was a delay in the arrival of concrete at the construction site where he was working, so he left with Robert Mills to get a soft drink. On the road, they encountered Isom driving in the opposite direction. Nelson stated that Isom turned around and followed them back to the construction site. According to Nelson, Isom stopped his car, got out, and accused Nelson of making disparaging remarks about him. Nelson claims he denied making the statements, but the next thing he knew, he woke up "swelling up." The police were summoned, but Nelson initially declined to press charges because he thought that he only had a black eye. Nelson stated that he tried to resume his job, but kept passing out. Later, he learned that Isom had "crushed" the whole side of his face, and it would take a five-and-a-half-hour surgery to reconstruct the bones in his face. Pictures showing Nelson at the time of the attack and medical bills totaling $10,594.13, were admitted into evidence. On cross-examination, Nelson denied having a knife that day and claimed he only had a Buck Tool, a four-inch long combination screwdriver, pliers, tape measure, file, and wire cutter, that he carried in a nylon pouch on his belt. He also denied grabbing Isom's shirt.

Robert Mills testified that, on the day in question, Nelson and a man whom he did not know were standing face-to-face, "talking or something." Mills stated that he did not get agood look at the man who had the confrontation with Nelson. During the confrontation, Mills recalled that his attention was drawn to a woman, later identified as Angela Elmore, who had arrived with Nelson's assailant, and he recognized her when she was brought into court. According to Mills, while he turned toward the woman, who approached him saying "you know this is between them," the two men went "down behind the truck," then one rose up, got into his car, and drove away. He went over to Nelson, picked him up, cleaned him up, and drove him back to the construction site. According to Mills, neither party "looked aggressive," he did not recall Nelson having anything in his hands nor acting like he wanted to fight, and he did not actually see any blows exchanged.

Captain William Hallenbeck, a criminal investigator with the Sebastian County Sheriff's Department, testified that he met with Nelson on April 20, 2000, and he recalled that Nelson's eyes were swollen and black and blue. Capt. Hallenbeck stated that he took a statement from Isom in which Isom confirmed that he confronted Nelson concerning threats that he had made regarding a $460 debt. Isom told him that there was a verbal altercation and that he struck Nelson several times in the face with a closed fist. Isom also admitted that he hit Nelson twice when he was on the ground. According to Capt. Hallenbeck, Isom never mentioned a knife or being hit by Nelson. Isom told him that Nelson said "I just might have to kill you," and Isom "lost it." Capt. Hallenbeck testified that on April 28, 2000, Deputy Stephen Cox noticed Isom hiding in the front seat of a vehicle, and, after calling for back-up, arrested Isom after he fled into the woods.

The State rested, and Isom moved for a directed verdict, arguing that Nelson testifiedthat he did not really know what happened, all he knew was that he was hit, and that his statement to police was that he was threatened by Nelson and he hit him. The motion was denied.

Angela Elmore testified that Isom was riding in her car on April 17, 2000. They encountered Caleb Elmore, who told them that Nelson was looking for Isom. When they passed Isom and Mills on the road, they turned around. According to Elmore, Nelson waved them down. She stated that Isom told Nelson not to send threatening messages to his house, and Nelson stated "I will just have to kill you." Elmore claimed that Nelson went to grab Isom by the shirt and tried to hit him. However, Isom swung and hit Nelson. According to Elmore, Isom hit Nelson three times and it was all over; she and Isom got back into the car and left. Elmore confirmed that she told Miller that the dispute was just between Isom and Nelson when it appeared that Miller intended to get involved. She also stated that Nelson had a knife on his belt, but that she did not see him reach for it.

Isom testified that while out looking for a job on April 17, 2000, Caleb Elmore told him that Nelson had tried to pay him to find out where Isom lived. When he encountered Nelson on the road, he told Nelson to stop threatening him, because he had heard that Nelson had put out a "hit" on him. Isom stated that he told Nelson "if you keep saying that stuff I am going to have you hurt," to which Nelson replied, "No, you ain't going to hurt me. I might just have to kill you." According to Isom, Nelson tried to grab him, and he spotted the knife on Nelson's belt. Isom admitted that he hit Nelson three times, then two more times while Nelson was on the ground trying to get up. Isom claimed that he was scared whenNelson threatened to kill him and he was defending himself when Nelson grabbed him with his left hand and brought his right hand up to hit or stab him. After Isom's testimony, he moved for a directed verdict, arguing that Nelson testified that he did not know what had happened and may be "feigning a little bit of amnesia because of his duplicity." Isom also asserted that he proved self defense by a preponderance of the evidence.

On appeal, Isom argues that the evidence was insufficient to support the court's judgment that he violated the terms and conditions of his suspended sentence. He concedes that there is "no question" that he "stuck" Nelson, causing injury. However, he asserts that there is a "substantial question" as to whether he was provoked by Nelson's threats and actions. Isom contends that Nelson could not remember anything after he came face to face with him and Elmore's version of the events was basically the same as his. Isom also notes that it was unrebutted that Nelson had threatened him previously. He argues that the threats made earlier and on the scene made it "understandable and reasonable" that he felt the need to defend himself when he was grabbed by Nelson. Isom claims that there were two witnesses to corroborate the previous threats by Nelson, two witnesses to corroborate the threats at the scene by Nelson, and two witnesses to corroborate the statements that Nelson was the aggressor, and the State produced no witnesses to the contrary. He asserts that the fact that a fight occurred is not grounds for revocation. This argument is without merit.

To revoke probation or a suspended sentence, the burden is on the State to prove a violation of a condition by a preponderance of the evidence, and on appellate review the trial court's findings will be upheld unless they are clearly against the preponderance of theevidence. Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992). Evidence that is insufficient to support a criminal conviction may be sufficient to support a revocation. Id. Arkansas Code Annotated § 5-13-202 (a)(1) provides in pertinent part that a person commits second-degree battery if: "With the purpose of causing physical injury to another person, he causes serious physical injury to any person."

We do not believe that the trial court erred in rejecting Isom's justification defense. Arkansas Code Annotated § 5-2-606 (Repl. 1997), provides:

(a) 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. However, he may not use deadly physical force except as provided in § 5-2-607.

(b) A person is not justified in using physical force upon another person if:

(1) With purpose to cause physical injury or death to the other person, he provokes the use of unlawful physical force by the other person; or

(2) He is the initial aggressor; but his use of physical force upon another person is justifiable if he in good faith withdraws from the encounter and effectively communicates to the other person his purpose to do so, and the latter continues or threatens to continue the use of unlawful physical force; or

(3) The physical force involved is the product of a combat by agreement not authorized by law.

In this case, it was uncontroverted that Isom precipitated the altercation by turning around and following Nelson as he returned to his job site for the purpose of confronting him about statements that he allegedly made to third parties. Under these facts, we cannot say that Isom was not the aggressor, which effectively denies him the benefit of a justification defense. Weare not unmindful that Isom provided testimony in his case-in-chief that Nelson grabbed his shirt; however, we do not find that this fact, even if true, converted Nelson into the aggressor in this situation. Moreover, the trial court heard this testimony and apparently found it unpersuasive. Since determination of a preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the trial judge's superior position in our review of revocation proceedings. Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998). Furthermore, even assuming that Isom was not the aggressor, we cannot agree that the degree of force employed by Isom was reasonable under the circumstances. By his own account, Isom hit Nelson a total of five times in the head, twice when he was lying on the ground. Finally, we note there also was testimony from Capt. Hollenbeck that Isom fled to a wooded area when the police first attempted to make contact with him. It is well settled that flight can be evidence of guilt. See, e.g., Weeks v. State, 64 Ark. App. 1, 977 S.W.2d 241 (1998). In sum, we cannot say that the evidence that Isom committed the offense of second-degree battery was clearly against the preponderance of the evidence.

Affirmed.

Vaught and Griffen, JJ., agree.