ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION IV

GREG LAMONT MACKINTRUSH

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-341

December 5, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION

[CR 97-3593, CR 00-19]

HON. DAVID BOGARD,

CIRCUIT JUDGE

AFFIRMED

This is an appeal from the trial court's determination that appellant violated the terms and conditions of his probation and that he committed the additional offense of aggravated assault. We affirm. On February 17, 1998, appellant offered a plea of guilty to the offense of second-degree battery in Pulaski County (CR 97-3593). Appellant was sentenced to sixty months' probation. On September 5, 1999, appellant was arrested after an altercation with his wife, Tamara Jones. At trial, Officer Judy Perkins testified about the events resulting in this arrest of appellant.

She testified that she and Officer Troy Clark received a call from an excited woman, reporting an incident of domestic abuse involving her husband, Greg Mackintrush. Perkins stated that at the time of the call, Ms. Jones was very upset and that she asked to meet the officers down the street because she was too terrified to remain in her home. When Ms. Jones arrived at the agreed upon meeting place, according to the testimony of both Perkins and Clark, she was very upset andshaking. She explained that her husband had accused her of "messing around" and then proceeded to scratch her chest and point a "long"gun at her head. At the time of this altercation, Ms. Jones was one-month pregnant. Perkins also testified that Ms. Jones agreed to drive by her home at 43 Nandina, in order to point out to the officers the location of the incident, but refused to physically enter the premises.

As they drove by the residence, the officers received a "f- you" greeting from a man (later identified as appellant) standing on the home's balcony. After obtaining Ms. Jones's permission to search her home, the officers found a rifle under a bed mattress. The officers then placed appellant under arrest. At trial, Ms. Jones did not testify.

On December 20, 1999, the State filed a petition to revoke appellant's probation alleging that appellant had violated the terms of his 1998 probation by his failure to report to his probation officer since October 1999. Specifically, the State charged that appellant had failed to report his September arrest, to pay fees levied against him, and to update his employment status. On January 4, 2000, the State filed an information charging appellant with the offenses of aggravated assault on a family member, domestic battery in the third degree, and being a felon in possession of a firearm (CR00-19). On June 6, 2000, the State amended its revocation petition to allege, as a basis for revocation, the charges described in the information filed on January 4. On August 24, 2000, after a bench trial and revocation hearing, appellant was sentenced to seventy-two months' incarceration at the Arkansas Department of Correction in case CR00-19, and six years' imprisonment (to run consecutively) in case CR97-3593. The revocation hearing and the bench trial in CR00-019 were held simultaneously. It is from this judgment that appellant brings his appeal.

First, appellant argues that the trial court conducted only a revocation hearing, and that he was convicted of the criminal offenses charged in CR00-19 during a revocation hearing and was, therefore, not afforded the full panoply of rights that are a part of a trial. However, the record shows that appellant consented to the joint proceeding. The following exchange demonstrates that appellant was aware that the bench trial in CR00-19 and the revocation hearing in CR97-3593 were taking place simultaneously:

The Clerk: CR97-3593 and 2000-19, Gregory Mackintrush.

The Court: Mr. Luppen [Defense Counsel].

(WITNESSES SWORN.)

The Court: Are we invoking the rule, Mr. Luppen?

Deputy Prosecutor: I will.

Defense Counsel: I'll invoke the rule, Your Honor.

The Court: Okay. All witnesses step outside. Who's your first witness?

Deputy Prosecutor: It will be Judy Perkins.

The Court: She can stay. The rest need to step outside.

The Court: Is that okay, Mr. Luppen?

Defense Counsel: That's correct, Your Honor.

The Court: Okay. Thank you.

It is clear from this exchange that appellant's counsel understood that the revocation hearing and the bench trial were taking place in tandem, and made no objection to the dual proceeding. When a new criminal charge constitutes the grounds for revocation, it is particularly appropriate to combine the two proceedings, as the goal of judicial economy can be served. See, e.g., White v. State, 329 Ark. 487, 951 S.W.2d 556 (1997). Also, contrary to appellant's argument, the fact that the proceeding was a trial as well as a revocation hearing meant that he was afforded greater rights with respect to the revocation hearing than he would have received had the two proceedings been severed. Therefore, we find no merit to appellant's first point of appeal.

Second, appellant argues that the trial court abused its discretion by admitting the hearsay testimony of two police officers during his bench trial and revocation hearing. The State responds that the trial court properly allowed the testimony under the "excited utterance" exception to the hearsay rule.

Arkansas Rule of Evidence 803(2) (2001) provides that "[a] statement relating to a startling event or condition made while the declarant was under the stress of the excitement caused by the event or condition" is not excluded as hearsay, even though the declarant is available as a witness. The theory behind the excited utterance exception is that "circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication." Luedemann v. Wade, 323 Ark. 161, 164, 913 S.W.2d 773, 775 (1996). It must be established that the utterance was made soon enough after the accident for it to reasonably be considered a product of the stress of accident, rather than of intervening reflection or deliberation. Id. "An excited utterance must have been made before there was time to contrive and misrepresent; that is, it must have been made before reflective and deliberative senses took over." Id. at 165, 913 S.W.2d at 775. It is within the trial court's discretion to determine whether a statement was madeunder the stress of excitement or after the declarant has calmed down and had an opportunity to reflect. Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000).

Here, the testimony of both Perkins and Clark was that Ms. Jones was scared, crying, and shaking. She told them that she had just been physically abused by her husband, and was afraid to remain in her home. She asked to meet them at a neutral location. The officers observed physical injuries that corroborated Ms. Jones's claim of recent abuse. Our supreme court has held that statements made by a wife following an episode of domestic violence can fall within the excited-utterance exception to the hearsay rule. Id. The evidence supports the trial court's determination that Ms. Jones's statement to the officers was made immediately after the altercation, and thus fell within the excited utterance exception to the hearsay rule. Therefore, there was no abuse of the trial court's discretion in admitting the statements.

Finally, appellant argues that he was denied his "right to confront the only competent witness against him, the victim of the crime." However, appellant did not object to the testimony of either Clark or Perkins on this basis. Appellant failed to make a Confrontation Clause objection to the hearsay testimony offered below, therefore his constitutional argument is not preserved for appellate review. Griffen v. State, 322 Ark. 206, 909 S.W.2d 625 (1995).

Affirmed.

Baker, J., agrees.

Hart, J., concurs.

Josephine Linker Hart, Judge, concurring. While I agree with the conclusion reached by the majority opinion, I write separately to voice my concerns about convictions supported only by statements made by a victim who does not appear at trial. In my view, such a method of prosecution can be readily abused, allowing prosecutors to secure convictions without the presence of reluctantwitnesses who have disavowed complaints initially made. In this case, there is no evidence in the record suggesting that the victim did not testify at trial because she recanted her previous statements. However, in future cases, if there is evidence that the victim subsequently disavowed previous complaints, I will be unlikely to vote to affirm a conviction supported only by such unreliable hearsay.