Cite as 2014 Ark. App. 325
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-13-997
BR
IAN KEITH JORDAN
APPELLANT
V.
STATE OF ARKANSAS
APPELLEE
RHONDA K. WOOD, Judge
The circuit court convicted Brian Keith Jordan of two counts of second-degree
battery and proceeded to revoke Jordan’s previously ordered probation. Jordan challenges
the sufficiency of the evidence regarding his conviction and the subsequent revocation.
We hold that there was substantial evidence sufficient for the convictions and that the
court’s decision to revoke was not clearly against the preponderance of the evidence. We
affirm.
Jordan
visited
a
salvage
yard
to
sell
manager, Dwayne Dwyer, declined to purchase them, Jordan attacked Dwyer with what
appeared to be a large pipe, repeatedly striking him in the head, and kicking him. Justin
Axelson came to Dwyer’s aid. Jordan shifted his attack and repeatedly punched Axelson
in the head. Dwyer, once free from Jordan, proceeded to remove his gun and directed
Jordan to leave the premises. The State charged Jordan with two counts of second-degree
Opinion Delivered May 21, 2014
AP
PEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
SEVENTH DIVISION
[NOS. CR-2011-1584, CR-2012-3232]
H
ONORABLE BARRY SIMS, JUDGE
A
FFIRMED
air-conditioning
parts.
When
the
general
Cite as 2014 Ark. App. 325
battery, and the court convicted Jordan on both counts. The court subsequently held a
probation revocation hearing and revoked Jordan’s probation due, in part, to the battery
convictions.
At trial, Jordan’s counsel made a motion to dismiss, arguing that the State failed to
introduce
substantial
evidence
that
either
victim
sustained
serious
physical
injury.
A
motion to dismiss at a bench trial is identical to a motion for directed verdict at a jury trial
in
that
it
is
a
challenge
to
the
sufficiency of
the evidence. Ark.
R.
Crim.
P.
33.1
(2013); Walton v. State, 2013 Ark. App. 561. The test for determining sufficient proof is
whether there is substantial evidence to support the verdict. Tatum v. State, 2014 Ark.
App. 68. We review the evidence in the light most favorable to the State and affirm if
there is substantial evidence to support the conviction. Id. Substantial evidence is that
which is of sufficient force and character that it will compel a conclusion without resorting
to
speculation
or
conjecture. Woods
v.
State,
2013 Ark.
App.
739, 431 S.W.3d 343.
Moreover, the finder-of-fact is responsible for determining the weight and credibility of
evidence. Id.
Arkansas Code Annotated section 5-13-202(a)(1) (Supp. 2011) states that a person
commits battery in the second degree if “[w]ith the purpose of causing physical injury to
another
person,
the
person
causes
serious
physical
injury
to
another
person.” A
serious physical injury is one which “creates a substantial risk of death or that causes
protracted
disfigurement,
protracted
impairment
of
health,
or
loss
or
protracted
impairment of the function of any bodily member or organ.” Ark. Code Ann. § 5-1-
2
Cite as 2014 Ark. App. 325
102(21) (Supp. 2011). The finder-of-fact may use its common knowledge to determine
whether such injury occurred. Bell v. State, 99 Ark. App. 300, 259 S.W.3d 472 (2007).
At trial, Dwyer and Axelson testified that they sought treatment at the hospital
following the attack. Dwyer was treated for a fractured arm as well as cuts and scratches
on his face, knee, head, and back. An x-ray showed that his shoulder was shattered, and
he spent five months in physical therapy without regaining full use of his arm. Axelson’s
ear was split in the attack, and he had it glued back together at the hospital. He also
suffered a concussion with lingering head pain. The court also viewed video evidence of
the brutal attack and photographic evidence of the injuries. Viewing the evidence in the
light most favorable to the State, we find that there was substantial evidence for the circuit
court to find that both victims sustained serious physical injuries.
At the time of the incident, Jordan was serving a year’s probation as a result of a
prior theft-of-property conviction. Following his attack on Axelson and Dwyer, the State
filed
a
petition
to
revoke
his
probation
alleging
that
he
failed
to
comply
with
the
conditions of his probation by committing two counts of battery. The circuit court
revoked his probation. Jordan appeals his probation revocation, stating that the revocation
was clearly against the preponderance of the evidence because the State did not prove that
Dwyer and Axelson suffered serious injuries.
In order to revoke probation, the circuit court must find by a preponderance of the
evidence that the defendant inexcusably violated a condition of that probation. Holmes v.
State, 2012 Ark. App. 451. Our case law is clear that probation revocations require an
even lower burden of proof than criminal convictions. See Flurry v. State, 2014 Ark. App.
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Cite as 2014 Ark. App. 325
128. Therefore, as we are holding the evidence was substantial enough to support the
battery
convictions,
we
are
certainly
finding
that
it
was
sufficient
to
prove
by
a
preponderance of the evidence that defendant violated his probation by committing new
criminal offenses.
Affirmed.
P
ITTMAN and HIXSON, JJ., agree.
Gina Reynolds, Deputy Public Defender, by: Clint Miller, Deputy Public Defender,
for appellant.
Dustin McDaniel, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
4
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