ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION IV

CACR 00-1204

June 27, 2001

JEFF SCOTT BEHM AN APPEAL FROM IZARD

APPELLANT COUNTY CIRCUIT COURT

VS.

HONORABLE JOHN DAN KEMP,

STATE OF ARKANSAS CIRCUIT JUDGE

APPELLEE

AFFIRMED

On April 19, 2000, Jeff Scott Behm pled guilty to felony overdraft and was placed on probation for five years subject to written conditions, including that he not violate the law. On June 22, 2000, the State filed a petition to revoke alleging that appellant had committed the offenses of disorderly conduct and terroristic threatening. At the hearing, the trial court revoked appellant's probation after finding that appellant had committed both offenses. As a result, appellant was sentenced to seventy-five months in prison.

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Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw on the grounds that the appeal is wholly without merit. This motion was accompanied by a brief referring to everything in the record that might arguably support an appeal. All rulings adverse to appellant made by the trial court on all objections, motions, and requests made by either party have been abstracted. The clerk of this court furnished appellant with a copy of his counsel's brief and notified him of his right to file a written response raising any points that he chooses. Appellant has responded with a letter. The State concurs that appellant's counsel has complied with Rule 4-3(j) and that the appeal is without merit.

The allegations contained in the petition to revoke arose out of two verbal altercations engaged in by appellant with the Izard County Sheriff, Joe Martz, and Deputy John Wilson, while appellant was at the sheriff's department meeting with his probation officer. According to the sheriff, appellant became angry with him for not investigating what appellant believed to be the theft of his truck. The sheriff said that he had discussed the truck with appellant on several occasions and that he had explained to him that the truck had been repossessed and not stolen. Appellant also became upset with Deputy John Wilson, who had recently asked appellant to move his vehicle that was parked illegally in front of a bank. In both exchanges, it was said that appellant was unruly and that he yelled curse words at the officers, such that he was arrested. Deputy Wilson testified that appellant twice said to him, "Take that badge off and you'll get yours."

The first issue discussed by counsel in his brief is the sufficiency of the evidence to support the revocation. That point, however, has not been preserved for appeal because no motion for dismissal was made at the close of the case. Morgan v. State, 73 Ark. App. 107, 42 S.W.3d 569 (2001); Miner v. State, 70 Ark. App. 142, 15 S.W.3d 356 (2000).

Secondly, the trial court sustained the State's objection when counsel asked Sheriff Martz if appellant seemed able to understand that his truck had been repossessed. The objection was properly sustained. As the question called for the sheriff to divine the workings of appellant's mind, it was speculative. Arkansas Rule of Evidence 701 prohibits the admission of speculative testimony. Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995).

At the hearing, both appellant and his counsel were each allowed to question the witnesses. During appellant's own examination of Sheriff Martz, the court sustained the State's relevancy objections to questions concerning whether the sheriff knew how long appellant had been in jail the previous spring; whether the sheriff knew that he had purchased a vehicle; whether the sheriff was aware of a vandalism complaint while appellant was attending a probation meeting; whether the sheriff knew that the sheriff's daughter and appellant's wife had been in school together; whether the sheriff knew that appellant's father had died and left him an inheritance; whether the sheriff knew that appellant's truck payment had been only eleven days late; and whether the sheriff knew Pat Coleman. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ark. R. Evid. 401; Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). The trial court has wide discretion on rulings concerning the admissibility of evidence, and this court will not reverse such a ruling absent an abuse of discretion. Lee v. State, 340 Ark. 504, 11 S.W.3d 553 (2000). None of these questions were relevant to the issue of whether appellant had inexcusably violated the conditions of hisprobation by committing the offenses of terroristic threatening and disorderly conduct. We find no abuse of discretion.

During counsel's cross-examination of Deputy Wilson, the court sustained the State's objection when the witness was asked if the cell block was a public place in terms of the disorderly conduct statute. The basis of the objection was that the question called for a legal conclusion that the officer was not competent to render. We find no abuse of discretion.

During appellant's own examination of his probation officer, Curt Decker, the court sustained the State's relevancy objection to the question of whether the officer knew that appellant had two children. We find no abuse of discretion.

During appellant's own examination of defense witness Clovis Vest, the court also sustained the State's relevancy objection when the witness was asked if he knew whether or not appellant was employed. We find no abuse of discretion.

As stated, both appellant and his counsel were allowed to question each of the witnesses. During the defense case, the State ultimately objected to this procedure, and the court ruled that one, but not both of them, would be allowed to question each witness for the remainder of the hearing. This is a decision that lies within the sound discretion of the trial court in order that the court may maintain order, prevent unnecessary consumption oftime or other undue delay, and preserve the court's dignity and decorum. See Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992). We find no abuse of discretion.

Next, the court sustained the State's objection to appellant making statements rather than posing questions to the witness. We find no abuse of discretion in the trial court's ruling.

During appellant's own examination of Deputy Rick Kimble, the court sustained relevancy objections as to whether the officer knew appellant's wife and whether the officer had heard appellant complain about not getting to see his children. As those questions were not relevant to the allegations, we find no abuse of discre tion.

During appellant's examination of Whitey Whitehurst, a game warden, appellant asked about the wildlife present near appellant's home. Because the question was not relevant, we find no abuse of discretion.

During appellant's testimony, the State objected to appellant testifying about his wife's troubles with the law. Because such testimony was not relevant, we find no abuse of discretion.

During the State's cross-examination of appellant, the court overruled appellant's counsel's objection to questions concerning whether or not appellant was current in the payment of his fines and restitution. We find no abuse of discretion because, althoughnot technically relevant, the appellant opened the door to such questioning by intimating that he was in compliance with the other terms of his probation. See Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998). Also, the court overruled counsel's objection when the State asked appellant if he had ever blown up and cursed at his lawyer at the sheriff's office. The objection was on grounds of privilege, but there was no disclosure about the content of any such discussions. We find no abuse of discretion.

Deputy Wilson was called in rebuttal, and appellant asked him if he had been polite to the officer the day that Wilson had appellant move his illegally-parked vehicle. The officer testified that appellant had been polite, and the court sustained the State's objections when appellant repeated the question several times. We find no abuse of discretion because appellant had already elicited the desired testimony. The court also sustained the State's objection when appellant asked Wilson if he knew that appellant had been scared of him the day of the vehicle incident because he was on probation. We find no abuse of discretion in excluding speculative testimony.

In his pro se list of points, appellant complains of errors and omissions from the transcript. However, he has not availed himself of the procedure authorized by Rule 3-5 of the Arkansas Rules of the Supreme Court and Court of Appeals for the correctionof such errors. Appellant also seems to raise several points concerning his overdraft conviction. Appellant, however, pled guilty to that offense, and this appeal concerns only the revoca tion of his probation. That appellant is allegedly owed insurance money for a stolen truck is also of no moment to this appeal.

From our review of the record and the briefs presented to this court, we find compliance with Rule 4-3(j) of the Rules of the Arkansas Supreme Court and the Court of Appeals, and conclude that the appeal is wholly without merit. Accordingly, counsel's motion to be relieved is granted, and the judgment of conviction is affirmed.

Stroud, C.J., and Pittman, J., agree.