ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION III

CACR01-984

March 20, 2002

TYRANZA PAT YOUNG AN APPEAL FROM PHILLIPS

APPELLANT COUNTY CIRCUIT COURT

[CR95-127]

V. HON. L.T. SIMES, II, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

On September 25, 1995, appellant Tyranza Patrick Young pled guilty to first-degree battery and received a suspended imposition of his sentence for seven years. On August 23, 2000, appellant was arrested for committing a terroristic act, possession of firearms by certain persons, and first-degree terroristic threatening. Following a revocation hearing, the trial court found that appellant had violated the provisions of his suspended sentence. It then revoked appellant's suspended sentence and imposed a fifteen-year sentence. We hold that the trial court did not err in finding by a preponderance of the evidence that appellant committed the offense of terroristic threatening. Accordingly, we affirm.

Factual and Procedural History

The record demonstrates that the following events transpired. On August 23, 2000,Larry Gray, the director of Streets, Sanitation and Public Works for the City of Helena, was flagged down by Emmitt Smith. Over the objection by counsel for appellant that Gray's testimony concerning what Smith told him was hearsay testimony that violated appellant's sixth amendment right to confront a witness,1 the trial court allowed Gray to testify at the revocation hearing that Smith told him that appellant had just shot his tires out and had shot his vehicle up. Gray testified that he noticed that two tires were flattened and that he telephoned the authorities. On cross examination, Gray admitted that he never got out of his vehicle to examine the tires and that he did not observe any shell casings or bullets. He further testified that he did not see appellant in the area.

Perry Byrd, the chief of police for the City of Helena, also testified. Byrd stated that he had known appellant for ten or eleven years and that he responded to Gray's call. When Byrd arrived at the scene, no one was in the area. However, Smith's vehicle was there, and Byrd observed that two of the tires were shot out. Byrd also observed several shell casings lying on the ground. After appellant was established as a suspect, Byrd received a telephone call from Dion Wilson, a local attorney, who told Byrd that appellant was in Wilson's office and wished to surrender. Byrd went to Wilson's office wearing body armor over his clothes. He and fellow officer Danielle Strickland encountered appellant standing in the middle of the floor. According to Byrd, appellant was very belligerent and used strong profanity. In addition, appellant told Byrd, "you got that on, you need one for your head because I'mgoing to kill some of y'all." Byrd transported appellant to the police department and secured a warrant for appellant for threatening to kill him. Byrd testified that Wilson was present when appellant made the statement. He stated that he felt threatened.

After presenting the testimony of Gray and Byrd, the State rested. Attorney Wilson then testified for the defense. He stated that he was appellant's attorney on the date of the arrest and that he had telephoned Chief Byrd and asked him to come over because appellant had informed Wilson that there was a warrant for him. Wilson testified that he was present from the time he made the telephone call until appellant was actually arrested, handcuffed, and searched. He stated that prior to the police arriving, he informed appellant not to say anything and that appellant never made any comments nor threatened Byrd. He testified that during the arrest, appellant's demeanor was calm and that appellant did not display any anger toward the officers.

The defense rested, and the court heard closing arguments. At the conclusion of the closing arguments, the trial court rendered its ruling. It began by noting that the State was required to prove one violation of the conditions of appellant's suspended sentence by a preponderance of the evidence. It then found that appellant, based upon the testimony of Chief Byrd, committed terroristic threatening in the first degree. It also found that there was evidence by a preponderance of the evidence that the tires were shot. The court then found that appellant had violated the terms of his suspended imposition of sentence and entered a judgment that sentenced him to fifteen years in the Arkansas Department of Correction.

Standard of Review

In revocation proceedings, the State bears the burden of proving by a preponderance of the evidence that an appellant violated one term or condition of his suspended sentence. See Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001). Upon appellate review, a trial court's decision to revoke the suspension of a defendant's sentence is affirmed, absent a determination that the trial court's decision is clearly against the preponderance of the evidence. See Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992). Considering the fact that the determination of a preponderance of the evidence frequently turns on the issue of credibility and the proper weight to give testimony, we defer to the unique position of the trial judge, who sits as the trier of fact. See id. Because a revocation hearing is not a criminal trial, evidence that would not sustain a criminal conviction may suffice to sustain a revocation. See id. As stated by our supreme court, "in a probation revocation hearing, a trial has already been held, and the defendant convicted." See Dority v. State, 329 Ark. 631, 634, 951 S.W.2d 559, 561 (1997). The same holds true for a revocation of a defendant's suspended imposition of sentence, which also requires proof by a preponderance of evidence. See Ark. Code Ann. § 5-4-309 (d) (Supp. 2001).

Sufficiency of the Evidence

Appellant begins by contending that there was insufficient evidence to justify the trial court revoking his suspended imposition of sentence based on the court's findings that appellant committed terroristic threatening in the first degree and that the tires were shot out. Arkansas Code Annotated section 5-13-301(a)(1)(A) (Repl. 1997) provides that a person commits first-degree terroristic threatening when:

with the purpose of terrorizing another person, he threatens to cause death or serious physical injury or substantial property damage to another person.

The statute covers future as well as present threats, and the fact that an accused does not have the immediate means to carry out the threat will not negate a finding that the accused violated the statute. See Knight v. State, 25 Ark. App. 353, 758 S.W.2d 12 (1988); Walker v. State, 13 Ark. App. 124, 680 S.W.2d 915 (1984).

Section 5-13-301(a)(1)(A) does not require that the person threatened experience terror. See Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988). However, the statute does require that the defendant act with a "conscious object" to cause fright. See Knight v. State, supra. Because intent is difficult to demonstrate by direct evidence, our courts recognize the presumption that an individual intends the natural and probable consequences of his actions. See Brown v. State, 54 Ark. App. 44, 924 S.W.2d 251 (1996). Thus, a trier of fact may rely upon common knowledge or experience to infer intent from the circumstances presented. See id.

Turning to the present case, the trial court heard conflicting testimony from Chief Byrd and Attorney Wilson as to whether appellant threatened Byrd. The court, in its role as trier of fact, chose to believe Byrd and specifically found Byrd to be a credible witness. As previously noted, we defer to the trial court's determination of credibility. Thus, the relevant issue before our court is not whether appellant made the statement to Byrd, but whether appellant's statement to Byrd rose to the level of a terroristic threat such as to trigger section 5-13-301(a)(1)(A).

In the argument section of his brief, appellant contends for the first time on appealthat statements made to a police officer cannot constitute criminal conduct without violating the First and Fourteenth amendments to the Constitution. However, we do not address arguments, including constitutional ones, that are raised for the first time on appeal. See B.C. v. State, 344 Ark. 385, 40 S.W.3d 315 (2001).

Byrd testified that appellant was very belligerent and used strong profanity towards him. He stated that appellant's demeanor was enraged and that appellant, while standing by his attorney, told Byrd, "you got that [a full body vest] on, you need one for your head because I'm going to kill some of y'all." Byrd testified that he felt threatened by appellant's remark. Taking into consideration our standard of review, our deference to the trial court's determination of credibility, and the fact that evidence that is insufficient to convict may be sufficient to revoke, we cannot say that the trial court's decision to revoke appellant's suspended sentence based on the charge of terroristic threatening was clearly against the preponderance of the evidence. Because we conclude that the State proved that appellant violated one term of his suspended sentence, i.e., terroristic threatening, through Byrd's testimony, we need not address whether the trial court erroneously admitted hearsay testimony as proof that appellant committed a terroristic act or possessed a handgun.

Affirmed.

Stroud, C.J., and Jennings, J., agree.

1 Rather than object to testimony by the State's witnesses on the grounds of hearsay and right to confront witnesses throughout the proceeding, appellant asked for, and received from the court, a continuing objection based on hearsay and the right to confront a witness.