dissenting. I do not agree with the majority opinion in this case because, in my judgment, (1) it reverses a trial judge’s decision that is clearly supported by the evidence, (2) it reverses the judge’s decision despite the fact that the appellant had a fair trial, (3) it reverses the judge’s decision on a technicality that puts form over substance; and (4) it reverses the judge’s decision for reasons not presented to the judge, but raised on appeal for the first time.
There is evidence in the record to the effect that on December 14, 1983, Mr. Hassan Mohamad, who was the manager of a 7-11 store at 16th & Pike in North Little Rock, came out of the back room of the store, saw the appellant squatting down behind a shelf, and watched him pick up a carton of cigarettes and put them under his jacket. The appellant was told that he would have to pay for the cigarettes, and the manager walked over to the front door of the store because he thought appellant might try to run out that door. After walking around the store and picking up about sixty or seventy dollars of merchandise which he put on the counter, the appellant then walked up to the front door and told the manger he was going outside to make a telephone call.
The manager told appellant he had to pay for the cigarettes before he left and told a lady employee to call the police because “I believe we’ve got a shoplifter.” At that point appellant began screaming and hollering and started hitting the manager who then opened the door and pushed the appellant outside and told him to leave. In the meantime, the lady employee, who watched the whole episode, had called the police. They arrived shortly thereafter and, a short time later, arrested appellant at another 7-11 store.
Both the manager and his employee testified as did two of the police officers who were called to the store. The manager testified that he never hit the appellant, but that appellant hit him in the eye and that it turned red and hurt for three days. One of the officers testified that there was a slight swelling on the left side of the manager’s face and that he had a red, discolored eye.
At the time of his arrest, the appellant was on a five-year suspended sentence, and as a result of the occurrence at the store, he was charged with robbery and misdemeanor theft and a petition to revoke his suspended sentence was filed. The Information charging robbery and theft contained the allegation that on December 14, 1983, the appellant:
employed physical force upon Honarmand Hassan Mohamad, agent of 7-Eleven Store, with the purpose of resisting apprehension immediately after committing a theft, against the peace and dignity of the State of Arkansas.
The petition for revocation stated that the appellant violated the terms of his suspended sentence because on December 14, 1983, he “was guilty of the crimes of Robbery and Misdemeanor Theft. ...”
On March 6,1984, the criminal charges and the petition to revoke were tried together by a judge without a jury. It is agreed that the criminal charges were tried first, but that the evidence in that hearing was made a part of the evidence in the revocation hearing. Appellant was represented by counsel at both hearings and he cross-examined the manager of the store and his employee. The appellant did not testify. At the conclusion of the evidence on the criminal charges, the appellant’s attorney moved for a directed verdict. He argued that since the evidence showed, and the store manager admitted, that the manager did not actually try to stop the appellant from leaving the store, any physical force employed upon the manager by appellant was not for the “purpose of resisting apprehension immediately after committing a theft.” Appellant’s counsel told the judge:
Your Honor, our position is that there may have been some criminal activity there but the charge of robbery is incorrect. It may have been something else —attempted theft, it may have been battery, it may have been something else. But not robbery. (Emphasis supplied.)
The judge, noting that the evidence did not show that appellant actually took any of the merchandise out of the store, granted the motion and dismissed the criminal charges of robbery and theft. He then announced they would proceed with the revocation hearing. The state called the probation officer who produced a form, signed by appellant, and which contained the written conditions of appellant’s suspended sentence, and it was introduced into evidence. One condition on the form provided that appellant would not violate any state law punishable by imprisonment during the period of his suspended sentence. No other evidence was offered and the court heard the arguments of counsel. Counsel for the state argued that, while technically the appellant may not have committed robbery, the evidence did show that appellant had committed a third degree battery upon the store manager, and that there was, at least, an attempted theft from the store. Significantly, the complete argument of appellant’s counsel in reply was as follows:
Your Honor, I think the question the Court has to decide here is whether the State has in fact established that by a preponderance of the evidence. Of course, the burden of proof here is a little bit different. Less than proof beyond a reasonable doubt. And I think the Court has heard the facts and we will leave that to the Court’s discretion. (Emphasis added).
The court then found that appellant had committed the crime of battery in the third degree, revoked the suspended imposition of sentence, and sentenced the appellant to three years in the Department of Correction. The dialogue that then occurred is set out in the majority opinion. I think the evidence that I have just summarized establishes the points listed in my opening paragraph.
(1) Certainly the court’s finding that appellant committed third degree battery upon the store manager is not clearly against the preponderance of the evidence. That, of course, is our standard of review in revocation cases. Pearson v. State, 262 Ark. 513, 558 S.W.2d 149 (1977); Fitzpatrick v. State, 7 Ark. App. 246, 647 S.W.2d 480 (1983). Third degree battery is purposefully or recklessly causing physical injury to a person and it is a class A misdemeanor. Ark. Stat. Ann. § 41-1603 (Repl. 1977). Punishment for a class A misdemeanor shall not exceed one year imprisonment. Ark. Stat. Ann. § 41-901 (Supp. 1983). The written condition of appellant’s suspended sentence provides that he will not commit any crime punishable by imprisonment.
(2) With the exception of notice of his alleged violations of probation, there can be no question but what the appellant received a fair trial. He had a hearing before a judge, he was present at the hearing, he was represented by counsel, he had the opportunity to present evidence and tp cross-examine witnesses, he was furnished a written judgment of the revocation, and he was afforded all the rights required by the State of Arkansas, and all the Federal due process requirements set out in Morrissey v. Brewer, 408 U.S. 471 (1972), and Gagnon v. Scarpelli, 411 U.S. 778 (1973).
(3) As to the notice issue, the information charged appellant with robbery committed on December 14,1983, by the use of physical force upon the store manager with the purpose of resisting apprehension immediately after committing a theft. The petition to revoke alleged appellant violated the terms of his suspended sentence because on December 14, 1983, he was guilty of the crimes of robbery and theft. All that is required by Arkansas law is that he “be given prior notice of the time and place of the preliminary hearing, the purpose of the hearing, and the conditions of suspension or probation he is alleged to have violated.” Ark. Stat. Ann. § 41-1209(l)(Repl. 1977). It is abundantly clear that the appellant was informed of the factual allegations that would be involved in his revocation hearing. Only by the sheerest technicality — one that absolutely puts form over substance — can it be said that the appellant did not have sufficient notice of the conditions of his suspension that he was alleged to have violated. While it may be true that battery is legally not a lesser included offense of robbery, it is also true that one who is alleged to have employed physical force on a person to resist apprehension immediately after committing a theft, is in truth and fact apprised of the need to defend against the charge of purposefully or recklessly causing physical injury to that person.
(4) The rule is well established in this state that cases will not be reversed on points not presented to the trial court but argued for the first time on appeal. See Wicks v. State, 270 Ark. 781, 785, 606 S.W.2d 366 (1980), where the court said: “in hundreds of cases we have reiterated our fundamental rule that an argument for reversal will not be considered in the absence of an appropriate objection in the trial court.” See also Weston v. State, 265 Ark. 58, 62, 576 S.W.2d 705 (1979), where the court said: “Nor will we afford relief which is not first sought in the trial court and denied. ”
As we have already set out, the record in the present case discloses that at the end of the revocation hearing the state’s attorney argued that the evidence showed that appellant had committed a third degree battery. However, instead of objecting to that issue being considered as Wicks would require, the appellant’s attorney told the court this was a factual issue for the court to decide.
Moreover, after the court had ruled, the appellant himself never asked the court to set aside its ruling and let him cross-examine the witnesses who had testified, or to let him testify or call other witnesses, or that he be given a continuance for time to get prepared to meet the “new” issue injected into the case by the state’s argument. Contrary to the requirement of Weston, the appellant sought no relief from the trial court, but waited until he got to this court and now asks us to tell the trial judge to do something the appellant did not ask the trial judge to do when appellant stood before him.
I would affirm the trial court’s judgment.
Cracraft, C.J., joins in this dissent.