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JOHN DAN KEMP, Chief Justice
Appellant James Eugene Sharp was convicted of rape and sentenced to a term of life imprisonment. For reversal, Sharp contends that the circuit court abused its discretion when it granted the State's motion in limine to exclude evidence that the victim, B.R., had filed a civil lawsuit against the owners of an apartment complex where the rape occurred. We affirm.
I. Facts
The following facts are adduced from the testimony and evidence at trial. On September 25, 2013, B.R. returned to her apartment in Hot Springs after work to pack for her upcoming move. After packing, B.R. took a bath, got in bed, and fell asleep while watching television. Later, she awakened with a hand over her mouth and heard a voice say, "If you scream, I'll kill you." B.R. saw a man, later identified as Sharp, standing in front of her nightstand and holding an L-shaped tool that was approximately twelve inches long. Sharp ordered B.R. to take off her clothes and lie down on the bed, and she complied. Sharp then inserted his penis into B.R.'s mouth and vagina without her consent.
After Sharp ejaculated, B.R. asked him if she could go clean up. Sharp followed B.R. to the bathroom that adjoined her bedroom, and he stood at the door while she wiped herself with a washcloth. He took the washcloth from B.R., wiped himself with it, and left it on the lavatory. Sharp then allowed B.R. to put on her clothes. Sharp picked up the tool from the nightstand and told B.R. to follow him to the guest bedroom where he had left his pants and underwear. Sharp got dressed and then walked to the front door. Before leaving the apartment, Sharp told B.R. that he would kill her if she told anyone what had happened.
After Sharp left, B.R. shut and deadbolted the door, grabbed her gun and cellphone, barricaded herself in the closet, and called 911. Deputy Jerry Simpson of the Garland County Sheriff's Office responded to B.R.'s call. While securing the scene, Simpson noticed an open window in the guest bedroom and discovered smudges on the outside of the window that were consistent with a handprint. He closed the window and then collected sheets and the washcloth that B.R. and Sharp had used to clean up. Medical personnel transported B.R. to the hospital where a rape kit was performed. A pelvic examination revealed that B.R. had a small vaginal-wall tear and that her vagina was red and inflamed.
B.R.'s rape kit, sheets, washcloth, and clothing were submitted to the Arkansas State Crime Laboratory for testing. Sperm cells were detected on the vaginal and rectal swabs and on B.R.'s underwear. The vaginal swabs contained DNA consistent with the DNA profiles of B.R. and Sharp.
At trial, Sharp testified that he did not know B.R., that he did not recall how he met her, that he did not remember crawling through her window, and that he did not recall having sexual contact with her. He also testified that if he did have sex with B.R., then it was consensual. After hearing all the evidence, the jury returned a verdict of guilty on the charge of rape, and Sharp was sentenced to life in prison.
II. Evidence of Civil Lawsuit
Sharp contends that the circuit court abused its discretion when it granted the State's motion in limine to exclude evidence that B.R. had filed a civil lawsuit against the owners of the apartment complex where the rape occurred. The State made its motion at a bench conference before trial:
THE STATE : Your Honor, there's an individual that came in the courtroom and said he represented the apartment complex. There is a current lawsuit pending between the victim and the apartment complex. We'd ask in limine that no mention of that lawsuit happen. That's not relevant to any issues in this trial and any relevance it might have would be substantially outweighed by the danger of unfair prejudice pursuant to Rule 401 and 403 of the Rules of Evidence.
THE COURT : Any objection?
DEFENSE COUNSEL : Well, Your Honor, from talking to counsel-and his name escapes me- I've met him a few times, my understanding was that the lawsuit was initiated around the approximate time that she has alleged this rape has occurred. Like they had filed a lawsuit and then the next day she has claimed the alleged assault and has filed suit against I guess the apartment complex as well. And I think that could go to possible bias or credibility of the witness.
THE STATE : She was actually buying out of her apartment complex and had paid to buy out. They just kind of jumped the gun and served her with it, so the lawsuit hadn't actually happened.
Now this lawsuit the guy's here for has to do with after the fact. This happened after the rape.
THE COURT : Yeah, how is it relevant to this case? This is a DNA CODIS hit.
DEFENSE COUNSEL : Well, she's-depending on whether or not it's consensual or not. If she's claiming it's no longer consensual, for the purpose of defeating or at least mitigating her liability on this lawsuit I think that can go to her credibility.
THE COURT : I disagree. That's overruled. The motion in limine is granted. We're not to make any mention of the civil case and he really shouldn't be talking to anybody.
Sharp asserts that evidence of B.R.'s civil suit was relevant to the issues of bias and credibility because a guilty verdict in the criminal case might aid her recovery in the civil matter. The State contends that Sharp did not preserve this issue for appeal because he failed to proffer the evidence that he sought to have admitted. Sharp concedes that he did not proffer the evidence; however, he contends that a proffer was unnecessary because the substance of the excluded evidence is apparent. Sharp claims that B.R.'s civil suit against the apartment complex was based on the facts giving rise to the criminal charge against him. Accordingly, Sharp contends that the circuit court should have allowed evidence of the civil suit because it was relevant to show B.R.'s "strong pecuniary interest" in testifying against him at trial.
A proffer "permit[s] the trial judge to make an informed evidentiary ruling" and "create[s] a clear record that an appellate court can review to determine whether there was reversible error in excluding the [evidence]." Perkins v. Silver Mountain Sports Club & Spa, LLC , 557 F.3d 1141, 1147 (10th Cir. 2009). Generally, a party must make a proffer to preserve for appellate review an issue concerning the erroneous exclusion of evidence at trial. See, e.g. , Tauber v. State , 324 Ark. 47, 919 S.W.2d 196 (1996) ; Ark. R. Evid. 103(a)(2) (2017). A proffer is unnecessary, however, when the substance of the evidence is apparent from the context within which it was offered. See, e.g. , Roe v. State , 310 Ark. 490, 837 S.W.2d 474 (1992).
Here, the colloquy from the bench conference suggests that there were two lawsuits involving the apartment complex and B.R. First, it appears that the apartment complex initiated legal action against B.R. before the rape occurred. Next, it appears that B.R. filed suit against the apartment complex after the rape occurred. However, a review of the bench conference colloquy reveals that Sharp failed to articulate to the circuit court the basis for B.R.'s suit against the apartment complex, the theory of liability she had pursued, or whether she had sought money damages. In short, Sharp failed to apprise the circuit court of the relevance of the civil lawsuit.
Further, the substance of the excluded evidence is not apparent from the context within which it was offered. Absent a proffer, we are unable to determine whether prejudice results from the exclusion of evidence. Edison v. State , 2015 Ark. 376, 472 S.W.3d 474. Consequently, Sharp's failure to make a proffer of excluded evidence precludes appellate review. E.g. , Conway v. State , 2016 Ark. 7, 479 S.W.3d 1.
III. 4-3(i) Review
In compliance with Arkansas Supreme Court Rule 4-3(i), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no prejudicial error has been found.
Affirmed. | [
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KAREN R. BAKER, Associate Justice
On March 31, 2017, a Garland County Circuit Court jury convicted appellant, Kevin Conway Duck, of first-degree murder and sentenced him to life imprisonment. Because Duck does not challenge the sufficiency of the evidence, only a brief recitation of the facts is necessary. McMiller v. State , 2014 Ark. 416, 1, 444 S.W.3d 363, 364.
This appeal stems from the death of Dawna Natzke on or around December 21, 2011. The record demonstrates that Duck and Natzke were involved in a romantic relationship. On December 21, 2011, Duck, Natzke, and Natzke's mother, Doris Smith, attended a Christmas party together in Hot Springs Village. Around 10:30 p.m., Duck and Natzke left the party together. After they left the party, Natzke was not seen again. The following day when Natzke did not report to work and her family could not reach her, the family notified law enforcement that Natzke was missing. On December 31, 2011, Natzke's remains were located near a pond outside Hot Springs Village. Duck was developed as a suspect, charged and convicted as described above. Duck timely appealed and presents two issues on appeal: (1) the circuit court erred in denying Duck's motion to exclude the State's expert witness's testimony and motion for mistrial based on an alleged discovery violation and (2) the circuit court erred by admitting text messages that were obtained through a subpoena and not a warrant.
I. Brady Violation
For his first point on appeal, Duck contends that the circuit court erred by denying Duck's motions to exclude testimony of expert witness Agent William Shute of the FBI and his motion for mistrial for use of Shute's testimony. Both motions were made based on alleged discovery violations.
"To establish a violation of Brady v. Maryland , 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215]... (1963) by the State's withholding of evidence, the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; the evidence must have been suppressed by the State, either willfully or inadvertently; prejudice must have ensued. Howard v. State , 2012 Ark. 177, at 8, 403 S.W.3d 36 [38], 44." Isom v. State , 2015 Ark. 225, at 2, 462 S.W.3d 662, 663. " Brady ... requires the State to disclose all favorable evidence material to the guilt or punishment of an individual. For a true Brady violation, [t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued. Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.... The reasonable probability standard is applied collectively, not item by item, such that the cumulative effect of the suppressed evidence, and not necessarily each piece separately, must be material. The rule set out in Brady also encompasses evidence known only to police investigators and not to the prosecutor. In order to comply with Brady , therefore, the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in this case, including the police." Newman v. State , 2009 Ark. 539, at 13-14, 354 S.W.3d 61, 69 (internal citations and quotations omitted).
On appeal, "the standard of review for imposing sanctions for discovery violations is whether there has been an abuse of discretion. A prosecutorial discovery violation does not automatically result in reversal. The key in determining if a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor's failure to disclose. Absent a showing of prejudice, we will not reverse." Hicks v. State , 340 Ark. 605, 612, 12 S.W.3d 219, 223 (2000) (internal citations omitted).
At issue are the Verizon records for Duck's cellular phone and Agent Shute's report generated based on the records. This issue was litigated at the circuit court level and the procedural history is as follows. On November 25, 2013, Duck was charged with first-degree murder and the affidavit for arrest provided that the State used Agent Shute to analyze Duck's cell phone. On December 4, 2013, Duck filed a discovery motion seeking the report. On December 9, 2013, Duck filed a second discovery motion seeking the report. On February 10, 2014, the circuit court held a status hearing and Duck requested the report, but the State responded that a formal report had not been completed at that time and anticipated having the report completed in one month. The circuit court ruled that if the report was not available in three weeks the trial would be rescheduled. On January 27, 2015, Duck filed a motion to exclude Agent Shute's report, asserting that the State had not timely turned over Shute's report. On February 3, 2015, the State provided Duck with the Shute's report in the form of a PowerPoint presentation. On February 9, 2015, the circuit court held a hearing and denied Duck's motion to exclude Shute's report. Duck sought a continuance, which was granted.
On January 29, 2016, Duck filed a motion for supplemental discovery seeking cell phone records and cell phone triangulation and alleging that he needed the original digital files from the phone company. On March 14, 2016, Duck filed a motion to compel request for supplemental discovery asserting that the State had not complied with its January 29, 2016 request for supplemental discovery. On March 18, 2016, the circuit court held a hearing regarding the motion for supplemental discovery and the motion to compel regarding the cell phone records. Duck relied on an affidavit from his expert witness, Ben Levitan, that contended the cell phone records he had received were not adequate. Levitan's affidavit contended that the documents Levitan received from the State did not show the cell tower used by Duck for each call on the dates in question, and that the order of records was not in the order normally used by Verizon and was not the original document. The affidavit also stated that the records indicated that the State received the original text messages. In sum, the affidavit stated that the documents received were not the originals and were scanned, marked up, and highlighted copies. Further, the affidavit opined that based on the documents shared with Duck, it is unclear how the State could arrive at specific opinions about Duck's location and movements of Duck on December 22, 2011. The circuit court ruled that a new subpoena was to be issued to Verizon and Duck's expert would be allowed to generate what information the subpoena requested from Verizon so there would be no dispute as to what had been submitted or provided by Verizon; and that it would be accessible to Duck in the form delivered by Verizon. The circuit court entered an order requiring the State to immediately supply Duck with a complete set of all original and unaltered phone records subpoenaed in the case.
On March 20, 2016, the State provided Duck with additional telephonic records. On March 24, 2016, Duck filed a motion to exclude the State's expert-witness testimony, or in the alternative, motion for continuance. The circuit court denied the motion to exclude and granted the continuance. On June 20, 2016, Duck filed an additional motion for continuance to allow Duck's expert to complete his analysis. On October 5, 2016, the State filed a motion titled "Statement on Phone Records" stating that it had subpoenaed Duck's cell phone records from Verizon in accordance with the circuit court's March 2016 order and that Duck's phone records were kept by a third party, not Verizon, and were only retained for one year. Duck responded and stated that he had the four cell phone site locations Agent Shute used but that his expert witness believed that the cell phone information provided by the State was still incomplete. Duck requested a continuance. On October 10, 2016, Duck again requested another continuance asserting that the State had recently delivered additional discovery to him.
Prior to the commencement of Duck's 2017 trial, Duck renewed his motions to exclude Agent Shute from testifying, alleging that the State had failed to timely provide all cell phone records. The State responded that it had provided all of the records that Agent Shute relied on in forming his opinion. The circuit court denied the motion. Finally, at trial, Karen Milbrodt, custodian of records for Verizon, testified for the State that she was the custodian of cell phone records. On cross-examination, she testified that the records had been preserved in raw form and that she printed a copy two days before trial. The following day, Duck requested an in-chambers conference and again asked either for Shute's testimony to be excluded or for a continuance to retrieve records, which were denied. Duck requested a mistrial, which was also denied.
With this procedural history in mind, we turn to Duck's argument on appeal. Duck asserts that the circuit court erred in allowing Agent Shute's testimony and erred in not granting a mistrial. Here, in support of his claim of a Brady violation, Duck asserts that because he received the data from the State and not directly from Verizon, a Brady violation occurred. Duck's argument is that he "[d]id not receive discovery he repeatedly requested. The discovery he needed was unaltered Verizon records. These records were essential for [Duck's] expert to form an opinion. [Duck] filed an Affidavit with the Court, the State filed a pleading with the Court stating the records [Duck's] expert needed were not available. Based on that information the trial court judge concluded that discovery was complete. During trial the records keeper for Verizon testified the records had been saved and she printed unaltered copy of the records two days before trial." Based on this assertion, Duck asserts that the circuit court erred. We disagree.
Here, Duck has failed to meet the Brady standard. Duck has failed to allege the evidence that was withheld. The record demonstrates that neither at trial nor on appeal does Duck identify the evidence he was not provided. At trial, during an in-chambers conference regarding Duck's motion to exclude Shute's testimony, Duck did not identify which records may be missing. Rather, Duck alleged that the subpoenaed records were sent from Verizon to Shute and then to Duck. Duck claimed he is entitled to a copy directly from Verizon and, specifically, an unaltered raw copy without highlighting. The State responded that every document the State was provided by Verizon, the State had shared with Shute and with Duck. In sum, the State contended that it provided to Duck all of the records it had received from Verizon.
On appeal, Duck neither develops the argument nor cites convincing authority in support of his assertion. This court will not develop arguments for parties. Pokatilov v. State , 2017 Ark. 264, at 12, 526 S.W.3d 849, 858. Further, based on our standard of review and the record before us, we cannot say that the circuit court abused its discretion. Accordingly, we affirm on this point.
II. Text Messages
For his second point on appeal, Duck asserts that the circuit court erred in allowing the admission of "content" based text messages in response to a subpoena without a warrant. At issue are text messages retrieved from Duck's cell phone from dates surrounding the crime and were admitted into evidence-specifically, the text messages retrieved from December 21, 2011, through January 4, 2012. Duck contends that the text messages were supplied based on an exigent-circumstances subpoena, which violated his constitutional rights to privacy. Duck asserts that the messages were "content" based and should be afforded protection under search-and-seizure laws, which require a warrant. In sum, Duck contends that the messages have a reasonable expectation of privacy and require a proper warrant, and he urges this court to reverse the circuit court's ruling that allowed the admission of the messages. The State responds that the issue is not preserved and is without merit. We agree with the State for the reasons that follow.
At trial, Milbrodt testified that she was a records custodian of business records of Verizon's customers' activity on Verizon's network. Milbrodt testified that she received a subpoena for information for Duck's account and that Verizon provided that information. Milbrodt further testified that she had provided call-detail records, which includes all of the incoming and outgoing call records, the corresponding cell site locations, and the incoming and outgoing information of text messages that were sent. Milbrodt further testified that Verizon provided text-message content, which included the actual words that were texted back and forth. Finally, Milbrodt testified that Verizon provided an RTT log, range-to-tower log, real-time tool or real-time tracking, which is a log of all activity that a particular phone used, including texts, data sessions and phone calls.
Additionally, during her testimony, the State introduced exhibits Nos. 49-52, which contained call and text logs, the contents of the messages, and the RTT log. Specifically, State's exhibit No. 49 contained the text-time log and the actual words that were sent in the messages to and from the phone. These exhibits were introduced and admitted without objection, including the text log and the contents of the text messages. In addition, the record demonstrates that Duck questioned Milbrodt about the text messages and State's Exhibit No. 49.
Turning to Duck's argument on appeal, the record demonstrates that Duck did not object at his first opportunity at trial. "A defendant must object at the first opportunity, and he must then renew his objection each time the issue is raised; otherwise, he has waived his argument regarding that issue on appeal. Vaughn v. State , 338 Ark. 220, 992 S.W.2d 785 (1999). To preserve an issue for appeal, a defendant must object at the first opportunity. Holt v. State , 2011 Ark. 391, 384 S.W.3d 498. A party who does not object to the introduction of evidence at the first opportunity waives such argument on appeal. Id. " Conte v. State , 2015 Ark. 220, at 29, 463 S.W.3d 686, 704.
In the case before us, Duck failed to object to the introduction of the content of the text messages at the first opportunity. Rather, the day after the introduction of the evidence during an in-chambers conference, Duck sought to exclude the text messages that had been admitted into evidence the previous day. Accordingly, Duck did not object at the first opportunity and the issue is not preserved. Further, Duck neither develops his argument regarding the text messages nor cites convincing authority in support of his assertion. This court will not develop arguments for parties. Pokatilov , 2017 Ark. 264, at 12, 526 S.W.3d at 858. Therefore, we affirm on this point.
Pursuant to Arkansas Supreme Court Rule 4-3(i) (2018), the record has been reviewed for all objections, motions, and requests that were decided adversely to Duck, and no prejudicial error has been found.
Affirmed.
Hart, J., dissents.
Josephine Linker Hart, Justice, dissenting.
Mr. Duck's appellate counsel has failed to fulfill the obligations imposed by Arkansas Supreme Court Rule 4-3(i). The rule states:
Court's Review of Errors in Death or Life Imprisonment Cases. When the sentence is death or life imprisonment, the Court must review all errors prejudicial to the appellant in accordance with Ark. Code Ann. § 16-91-113(a). To make that review possible, the appellant must abstract, or include in the Addendum, as appropriate, all rulings adverse to him or her made by the circuit court on all objections, motions and requests made by either party, together with such parts of the record as are needed for an understanding of each adverse ruling. The Attorney General will make certain and certify that all of those objections have been abstracted, or included in the Addendum, and will brief all points argued by the appellant and any other points that appear to involve prejudicial error.
The trial transcript exceeds 1500 pages. and motions and exhibits account for nearly 1700 additional pages. Yet Mr. Duck's appellate counsel submitted to this court a 74-page abstract and a 66-page addendum. I am mindful that the State has supplemented with a 35-page abstract and a 66-page addendum; however, this effort has not satisfied Rule 4-3(i).
Although numerous examples exist, the deficiency in the abstract and addendum is conclusively proven by a single example. Much of Duck's argument concerned Special Agent William Shute's cell-phone-tower analysis. However, the addendum contains only two copies of page 1 of his 2-page report and no page 2. I checked the transcript, and it had the identical defect-two copies of the first page and no second page. Accordingly, an addendum that satisfied Rule 4-3(i) could only be executed after a remand to settle the record. In my view, this defect is serious enough to order rebriefing pursuant to Supreme Court Rule 4-2 as well.
Accordingly, this court should order that appellate counsel submit a complete abstract and addendum.
I respectfully dissent. | [
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JOSEPHINE LINKER HART, Justice
Bruce Earl Ward appeals from an order of the Pulaski County Circuit Court dismissing with prejudice his civil rights case in which he challenged the conditions of his confinement in the Varner Supermax Unit of the Arkansas Department of Correction. On appeal, Ward argues that the order of dismissal with prejudice should be vacated because the circuit court lacked jurisdiction to enter it.
Ward is a prisoner on death row, awaiting execution for the August 11, 1989 capitol murder of Rebecca Doss. On October 12, 2015, Ward submitted a document captioned "Petition for Leave to Proceed In Forma Pauperis (IFP)" to the Pulaski County Circuit Court. Along with this petition, Ward tendered a complaint asserting a civil rights claim under 42 U.S.C. § 1983. Ward had filed an identical complaint in federal court but had voluntarily nonsuited his federal case before he attempted to file his complaint in state court. Several state officials were named as defendants. Ward did not attempt to serve any of the named defendants.
Although both the IFP and the complaint were electronically stamped with the date and time, neither was assigned a civil case number by the clerk's office, as no filing fee had been paid. Instead, the pleadings were given an administrative, or miscellaneous, number that the circuit clerk's office used to keep track of nonfiled documents.
On October 12, 2015, the circuit court denied Ward's IFP with no explanation. Like the IFP and the complaint, the order bore an administrative, or miscellaneous number. On October 13, 2015, Ward submitted to the circuit clerk's office a motion for reconsideration or clarification of the order denying his IFP. Attached to the motion for reconsideration was an affidavit in support of the IFP indicating that Ward was a prisoner on death row at the Varner Supermax Unit, that he was not employed, that he received no money from business or self-employment, and that as of September 30, 2015, he had $43.72 in his prison account. Ward also sought clarification of the IFP denial-whether the court found that he did not qualify financially or that he failed to make a colorable showing of a cause of action as required by Rule 72 of the Arkansas Rules of Civil Procedure. The circuit court denied Ward's motion for reconsideration without making findings on October 14, 2015.
Although Ward filed a notice of appeal from the IFP and reconsideration denials on October 14, 2015, there is no evidence that a record on appeal was prepared or lodged. On February 24, 2016, appellees used the administrative case number to file a motion to dismiss. In that motion, appellees argued that because Ward failed to serve them with process within 120 days from the "filing of the complaint," the circuit court was obligated to dismiss the suit under Arkansas Civil Procedure Rule 4(i)(1) and that the dismissal would operate as an adjudication on the merits under Arkansas Civil Procedure Rule 41(b) because Ward had previously voluntarily dismissed a similar claim in federal court. No action was taken on this motion by any judge at the circuit court.
On May 26, 2017, appellees filed a second motion to dismiss, again using the administrative case number. In that motion, appellees asserted that their first motion to dismiss was still pending and that because Ward had "taken no action" on the case for one year, dismissal was proper under Rule 41(b). Appellees also repeated the assertion that the dismissal was an adjudication on the merits because of the previous voluntary dismissal in federal court. Ward did not respond to this motion.
On May 31, 2017, the circuit court dismissed Ward's complaint with prejudice. The order recited that the "cause of action" was "dismissed with prejudice for failure to prosecute." The order further noted that the dismissal served as an "adjudication on the merits." The written order was filed under the administrative case number.
On June 13, 2017, Ward asked the circuit court to reconsider. He argued that because he never paid a filing fee or was granted indigent status, the complaint was never officially filed; therefore, no cause of action had been commenced, and there was no case to dismiss. On July 10, 2017, the circuit court denied the motion for reconsideration without explanation. Ward timely filed a notice of appeal
On appeal, Ward argues that the circuit court's order dismissing his "cause of action" should be vacated for lack of jurisdiction because Ward never filed a complaint for the circuit court to dismiss. Ward asserts that he submitted a motion to proceed in forma pauperis along with a complaint to the Pulaski County Circuit Clerk; however, the circuit court did not grant his motion. Accordingly, because the circuit court declined to find him indigent, and because Ward never paid a filing fee to the circuit clerk, the complaint was never filed and no action was commenced. Ward cites Arkansas Code Annotated section 16-58-101(a) (Repl. 2005) to support this proposition. It states in pertinent part: "No action shall be entered upon the docket of any court nor any original mesne or final process issued ... until the fees for entering the case upon the docket ... [are] paid." Arguing further, Ward notes that the record supports this assertion because the complaint bears no file mark, and the clerk's office did not assign the case a civil case number, only a "generic number" assigned to all similar cases. Furthermore, Ward argues that because his complaint was not filed, he was not obligated to act further, for instance, to serve the named defendants. This argument is persuasive.
Jurisdiction is the power or authority of the court to act. W. Memphis Sch. Dist. v. Circuit Court of Crittenden Cty. , 316 Ark. 290, 871 S.W.2d 368 (1994). When a circuit court acts without jurisdiction, its orders and judgments are void. Rose v. Harbor E., Inc. , 2013 Ark. 496, 430 S.W.3d 773. A circuit court acquires jurisdiction over a cause of action when a complaint is filed with the circuit clerk. Ark. R. Civ. P. 3(a). The payment of a filing fee, or waiver of that fee pursuant to Rule 72 of the Arkansas Rules of Civil Procedure, is required before a civil action will be filed. Ark. Code Ann. § 16-58-101(a) ; see McClellan v. Young , 232 Ark. 679, 339 S.W.2d 624 (1960). We hold that Ward's case was never "filed"; therefore, the circuit court never acquired jurisdiction. We therefore vacate the circuit court's order of dismissal.
Reversed; circuit court order vacated.
In an opinion handed down on December 10, 2015, Penn v. Gallagher , 2015 Ark. 472, this court ended the practice by the Pulaski County Circuit Clerk of not filing for record petitions to proceed in forma pauperis and the orders denying the petitions. The disposition of Ward's IFP predated Penn by nearly two months.
Prior to this court's decision in Penn, supra , orders denying IFPs were not appealable, in part, because they contained only a miscellaneous file number and not a case number; thus, were not considered "filed of record." | [
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RAYMOND R. ABRAMSON, Judge
Hickory Heights Health and Rehab, LLC; Central Arkansas Nursing Centers, Inc.; Nursing Consultants, Inc.; and Michael Morton jointly appeal the Pulaski County Circuit Court order denying their motion to compel arbitration. On appeal, they argue that the circuit court erred in denying their motion. We affirm.
Hickory Heights is a nursing-home facility where Ida Adams is currently a resident. On November 6, 2017, Ida's son and guardian, Lemarion Adams, filed suit on her behalf against Hickory Heights, alleging claims for negligence, medical malpractice, breach of contract, and a violation of the Arkansas Deceptive Trade Practices Act.
In response, on December 29, 2017, Hickory Heights filed a motion to compel arbitration and stay the proceedings. It attached an arbitration agreement signed by Lemarion at Ida's admission to Hickory Heights. The arbitration agreement provides in part as follows:
Signing this Arbitration Agreement, as an addendum to and part of the Admission Agreement is a condition of admission . Once signed, this Arbitration Agreement governs the resolution of claims.
....
It is understood and agreed by Facility and Resident and/or responsible party that any and all claims, disputes, and controversies arising out of, or in connection with, or relating in any way to the Admission Agreement or any service or health care provided by the Facility to the Resident that would constitute a cause of action in a court of law that the Facility may have now or in the future against you or any of your representatives, or that you or any of your representatives may have now or in the future against the Facility, as defined above, and involving an amount of or greater than thirty-thousand dollars and no cents ($30,000) shall be resolved exclusively by binding arbitration and not by a lawsuit or resort to court process.
....
By signing this agreement, the Parties acknowledge their understanding and agreement that all disputes will be resolved by binding arbitration:
THE PARTIES FURTHER ACKNOWLEDGE THAT THEY ARE GIVING UP AND WAIVING THEIR CONSTITUTIONAL RIGHT TO HAVE THEIR DISPUTES DECIDED IN A COURT OF LAW BEFORE A JUDGE AND A JURY, AND ARE INSTEAD ACCEPTING THE USE OF ARBITRATION.
On January 19, 2018, Lemarion filed a response and argued that the arbitration agreement was invalid for two reasons: (1) the agreement lacked mutuality of obligation among the parties because it allowed Hickory Heights to sue in court for the types of claims it would likely have against residents, but it required injured residents to arbitrate their likely claims; and (2) the agreement was unconscionable and therefore unenforceable as a matter of law.
On January 26, 2018, the circuit court entered an order without written opinion denying Hickory Heights' motion to compel. Hickory Heights timely appealed the order to this court. On appeal, Hickory Heights argues that the circuit court erred in denying its motion to compel arbitration because the agreement mutually obligated the parties and was not unconscionable.
When a circuit court denies a motion to compel arbitration without expressly stating the basis for its ruling, that ruling encompasses the issues presented to the circuit court by the briefs and arguments of the parties.
Asset Acceptance, LLC v. Newby , 2014 Ark. 280, 437 S.W.3d 119. On appeal, we review a circuit court's order denying a motion to compel arbitration de novo on the record. HPD, LLC v. TETRA Techs., Inc. , 2012 Ark. 408, 424 S.W.3d 304.
We first address Hickory Heights' argument that the arbitration agreement mutually obligates the parties. The parties in this matter do not dispute that the Federal Arbitration Act (FAA) applies in this case. Congress enacted the FAA, 9 U.S.C. §§ 1 - 16 (2006), to overcome judicial resistance to arbitration. Buckeye Check Cashing, Inc. v. Cardegna , 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006). The FAA establishes a national policy favoring arbitration when the parties contract for that mode of dispute resolution. Preston v. Ferrer , 552 U.S. 346, 128 S.Ct. 978, 169 L.Ed.2d 917 (2008)(citing Southland Corp. v. Keating , 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984) ). So, too, in Arkansas, arbitration is strongly favored as a matter of public policy and is looked upon with approval by courts as a less expensive and more expeditious means of settling litigation and relieving docket congestion. Asset Acceptance , 2014 Ark. 280, 437 S.W.3d 119. Although an arbitration provision is subject to the FAA, courts look to state contract law to decide whether the parties' agreement to arbitrate is valid. Reg'l Care of Jacksonville, LLC v. Henry , 2014 Ark. 361, 444 S.W.3d 356.
Our supreme court has observed that a threshold inquiry is whether a valid agreement to arbitrate exists; that is, whether there has been mutual agreement, with notice as to the terms and subsequent assent. See Alltel Corp. v. Sumner , 360 Ark. 573, 203 S.W.3d 77 (2005). Our supreme court has said that the essential elements for an enforceable arbitration agreement are (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligation. Bank of the Ozarks, Inc. v. Walker , 2014 Ark. 223, 434 S.W.3d 357.
In Arkansas, the element of mutuality of contract means that an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other; that is, neither party is bound unless both are bound. The Money Place, LLC v. Barnes , 349 Ark. 411, 78 S.W.3d 714 (2002). A contract, therefore, that leaves it entirely optional with one of the parties as to whether that party will perform the promise would not be binding on the other. Showmethemoney Check Cashers, Inc. v. Williams , 342 Ark. 112, 27 S.W.3d 361 (2000). There is no mutuality of obligation when one party uses an arbitration agreement to shield itself from litigation while reserving to itself the ability to pursue relief through the court system. Cash in a Flash Check Advance of Ark., L.L.C. v. Spencer , 348 Ark. 459, 74 S.W.3d 600 (2002). Thus, under Arkansas law, mutuality requires that the terms of the agreement impose real liability upon both parties. E-Z Cash Advance, Inc. v. Harris , 347 Ark. 132, 60 S.W.3d 436 (2001).
In this case, Hickory Heights argues that the agreement mutually obligates the parties to submit any disputes to arbitration when the amount in controversy is greater than $30,000. It maintains that the agreement does not specifically exclude a type of claim from its scope nor does it require only one party to forgo its right to the court system.
Lemarion argues that the agreement shields Hickory Heights from litigation while reserving its ability to pursue relief against its residents through the court system. Specifically, he asserts that the agreement relegates residents' likely claims-tort claims-to binding arbitration but allows Hickory Heights to retain the right to litigate its likely claims-matters for less than $30,000, such as billing and collection matters-through the court system. He points out that the maximum debt that Ida would likely accumulate to Hickory Heights is $9,400. He further notes that the admission agreement disclaims all liability for property not delivered to an employee for safekeeping and that Hickory Heights reserves the right to refuse the safekeeping of personal property over $50.
In making his argument, Lemarion relies on Regional Care , 2014 Ark. 361, 444 S.W.3d 356, and E-Z Cash , 347 Ark. 132, 60 S.W.3d 436. In Regional Care , the arbitration agreement provided for arbitration of any dispute arising out of the nursing home residency but preserved the facility's ability to sue in court for disputes concerning billing or collection services. Id. Our supreme court held that the agreement lacked mutual obligation because, by excluding any billing or collection disputes, the nursing home did not bind itself to the same obligations that it imposed on the resident. Id.
In E-Z Cash , our supreme court held that an arbitration clause lacked mutual obligation because the clause allowed the check casher the right to all civil remedies, including a return-check fee, court costs, and attorney's fees, when a check was returned, but limited the customer to arbitration. E-Z Cash , 347 Ark. 132, 60 S.W.3d 436. Although the arbitration clause allowed both parties access to small-claims court, the court held that any argument that this provision supplied the necessary mutuality was disingenuous in light of the other provision allowing the check casher to go to court for returned checks because "[t]aking into account their line of business, it is difficult to imagine what other causes of action against a borrower remain that E-Z Cash would be required to submit to arbitration." Id. at 141, 60 S.W.3d at 442. "In other words, mutuality was deemed lacking because the check casher could litigate the only kind of claim that it might have against a borrower." Reg'l Care , 2014 Ark. 361, at 8, 444 S.W.3d at 361.
In the case at bar, we also conclude that the arbitration agreement lacks mutuality. As in E-Z Cash , Hickory Heights' argument that the agreement supplied the necessary mutuality is disingenuous. Even though the arbitration agreement did not explicitly exclude a type of claim from its scope or require only one party to forgo its right to the court system, the arbitration provision was obviously drafted to shield Hickory Heights from defending itself in the court system against the majority of residents' potential claims while maintaining its right to utilize the court system for its likely claims against residents. Our supreme court has held that such arbitration agreements lack mutuality. See Reg'l Care , 2014 Ark. 361, 444 S.W.3d 356 ; E-Z Cash , 347 Ark. 132, 60 S.W.3d 436. Accordingly, it is not a valid and enforceable arbitration agreement. Because no valid arbitration agreement exists due to lack of mutuality of obligation, we need not address Hickory Heights' unconscionability argument. See Reg'l Care , 2014 Ark. 361, 444 S.W.3d 356.
Affirmed.
Virden and Hixson, JJ., agree.
For simplicity, we will hereinafter refer to the appellants jointly as "Hickory Heights."
To calculate that sum, Lemarion cites the admission agreement, which requires Ida to pay the facility's monthly bill in advance on the first day of the month. If the resident fails to pay by the tenth day, Hickory Heights can discharge the resident thirty days later. Thus, Lemarion asserts that Ida's account can remain delinquent for only forty days. Hickory Heights' daily rate is $235. Accordingly, Lemarion multiplied $235 by 40, which equals $9,400.
In its brief, Hickory Heights relies on Diversicare Leasing Corp. v. Nowlin , No. 11-CV-1037, 2011 WL 5827208 (W.D. Ark. Nov. 18, 2011). In that case, the federal district court applied Arkansas law and held that an arbitration agreement that required all claims in excess of $15,000 be submitted to arbitration satisfied the mutual-obligation requirement. While our supreme court often looks to federal court decisions, they are not precedent and not binding on our supreme court. See Sheridan v. State , 368 Ark. 510, 247 S.W.3d 481 (2007). We further note that the Diversicare decision preceded our supreme court's decision in Regional Care . | [
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N. MARK KLAPPENBACH, Judge
Reshord Demone Riley appeals from the revocation of his probation. Pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals, Riley's counsel has filed a no-merit brief and a motion to withdraw asserting that there is no issue of arguable merit to raise on appeal. Although Riley was sent a copy of his counsel's brief and motion by mail, notifying him of his right to present pro se points for reversal, he did not file any pro se points. We previously ordered supplementation of the record and rebriefing in this matter. See Riley v. State , 2018 Ark. App. 27. Because the deficiencies have now been corrected and the appeal is wholly without merit, we affirm the revocation and grant counsel's motion to withdraw.
Riley was originally convicted of breaking or entering, a Class D felony, in 2012. He was sentenced to two years' probation and ordered to pay court costs, fines, and fees totaling $1920. In 2013, Riley's probation was revoked and continued. In 2015, his probation was again revoked and extended for two years. He was ordered to pay all previously assessed fines, costs, and fees along with additional costs and fees. In November 2016, the State filed a petition for revocation, alleging that Riley had violated his probation by committing a new offense, testing positive for alcohol, and failing to pay financial obligations as ordered. After a hearing, the Miller County Circuit Court revoked Riley's probation due to his failure to pay as ordered and sentenced him to six years' imprisonment.
As counsel notes, the only adverse ruling was the decision to revoke Riley's probation. The burden on the State in a revocation proceeding is to prove by a preponderance of the evidence that the defendant inexcusably failed to comply with at least one condition of his or her probation. Trotter v. State , 2015 Ark. App. 408, 465 S.W.3d 860. This court will not reverse unless the circuit court's findings are clearly against the preponderance of the evidence, and our court defers to the credibility determinations made by the circuit court and the weight it assigns to the evidence. Id. Once the State introduces evidence of nonpayment, the defendant then has the burden of going forward with some reasonable excuse for failing to pay as ordered. Id. The ultimate burden of persuasion remains on the State, but it need only prove one violation in order to support the revocation of probation. Id.
Riley's probation officer, Laura Hanna, testified that Riley had received credit for some of his financial obligations by performing community service and had made some payments toward his probation supervision fees; however, he currently owed $207.20 to the probation department and $1960 to the circuit clerk's office. Hanna testified that Riley reported having two part-time jobs in August 2016 and a full-time job in September 2016. Riley acknowledged that he owed the money but claimed that he had not received credit for all of the community service he had performed. He also testified that he was arrested based on false accusations a few weeks after obtaining his full-time job and had been incarcerated since October 2016. The circuit court found that Riley had been given ample time to satisfy his obligations and that the failure to make payments to the circuit clerk's office was inexcusable.
Counsel correctly explains why the circuit court's decision is not clearly against the preponderance of the evidence. Although Riley offered various excuses, the circuit court did not find these excuses reasonable given the many opportunities afforded to Riley to make payments and his ability to work a full-time job. If the alleged violation involves the failure to pay court-ordered fines and costs, the court may revoke probation if it finds the defendant has failed to make a good-faith effort to pay the obligation. London v. State , 2017 Ark. App. 585, 534 S.W.3d 758.
From our review of the record and the brief presented to us, we find that counsel has complied with the requirements of Rule 4-3(k)(1) and hold that there is no merit to this appeal. Accordingly, we affirm the revocation of Riley's probation and grant counsel's motion to withdraw.
Vaught and Murphy, JJ., agree. | [
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PHILLIP T. WHITEAKER, Judge
Shawn Seth Hansen appeals from a decision of the Arkansas Workers' Compensation Commission (Commission), which affirmed and adopted the decision of the administrative law judge (ALJ) and which found that Hansen had failed to prove he sustained a compensable injury to his left foot. We affirm.
I. Facts
In November 2015, Hansen was employed by the City of Siloam Springs as a firefighter and an emergency medical technician. In that capacity, he worked in 24-hour shifts, and during his shift, he was required to stay on premises unless he was performing a work-related function or errand. As a result, his employer provided him with sleeping accommodations and encouraged sleep during the nighttime hours.
Hansen was working one of his 24-hour shifts on November 5, 2015. At approximately 1:30 or 2:00 in the morning, he awoke from a bad dream in which he believed spiders were crawling on him. In his sleepy stupor, he jumped from his bed and injured his foot, suffering a fracture of his left fifth metatarsal. He ultimately required surgery for his injury.
Hansen filed a claim for benefits, but his request was controverted on the basis that his injury was not work related but rather was idiopathic in origin. The ALJ agreed, finding that, while his sleep benefited his employer, his dream about spiders was idiopathic in nature. It was his dream that caused him to jump out of bed and injure himself. Thus, because his injury was idiopathic in nature and because sleeping in the employer-provided facilities did not increase his risk of harm, he failed to prove that he had suffered a compensable injury. Hansen appealed the denial of benefits to the Commission, which affirmed and adopted the findings of the ALJ. He now appeals that decision.
II. Standard of Review
In reviewing decisions from the Commission, we view the evidence and all reasonable inferences in the light most favorable to the Commission's decision and affirm if it is supported by substantial evidence.
Garcia v. Jensen Constr. Co. , 2017 Ark. App. 450, at 3-4, 527 S.W.3d 749, 752. Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Id. We defer to the Commission's findings of credibility and the resolution of conflicting evidence. Id.
III. Analysis
Hansen alleges that he suffered a compensable injury. A compensable injury is an accidental injury causing internal or external harm that arises out of and in the course of employment. Garcia, supra. A compensable injury must be established by medical evidence supported by objective findings, which are findings that cannot come under the voluntary control of the patient. Id. As the claimant, Hansen bears the burden of proving a compensable injury by a preponderance of the credible evidence. Id.
Hansen first claims that the Commission erred in finding that he suffered a noncompensable idiopathic injury. The Commission found that the cause of Hansen's injury was his dream about spiders. Because it was the dream that caused him to jump from his bed, not any work-related function, the Commission determined his injury was idiopathic in origin; thus, not compensable.
Hansen argues that his injury was not idiopathic. An idiopathic injury is one whose cause is personal in nature, or peculiar to the individual. Crawford v. Single Source Transp. , 87 Ark. App. 216, 189 S.W.3d 507 (2004). He disagrees that his injury was caused by his dream. Instead, he takes the position that the injury was due to his employer-provided sleeping arrangements.
Essentially, Hansen's first argument requests that we reweigh the evidence and reach a different conclusion. While we might have reached a different conclusion, there was substantial evidence to support the Commission's decision in this regard. Under our standard of review, the issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, we must affirm its decision. Bennett v. Tyson Poultry, Inc. , 2016 Ark. App. 479, 504 S.W.3d 653.
Hansen next argues that, even if his injury is deemed to be idiopathic, his work conditions contributed to his risk of injury; therefore, it should have been deemed compensable. Because an idiopathic injury is not related to employment, it is generally not compensable unless conditions related to the employment contribute to the risk. Garcia, supra. Employment conditions can contribute to the risk or aggravate the injury by, for example, placing the employee in a position that increases the dangerous effect of a fall, such as on a height, near machinery or sharp corners, or in a moving vehicle. Id.
Here, the Commission found that there was no added danger or risk from Hansen's employer-provided sleeping quarters and that it was reasonable to conclude that he would have experienced the same type of sleeping conditions at home in his own bed. Thus, his work conditions did not add to or contribute to his risk of injury. Again, the issue here is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; it is whether reasonable minds could reach the Commission's conclusion. As reasonable minds could reach the Commission's conclusion under the facts presented to us, we must affirm its decision based on our standard of review.
Hansen's final argument is that he was entitled to medical and temporary total-disability benefits as a result of his specific-incident injury. However, because we affirm the Commission's finding that Hansen failed to prove he sustained a compensable injury, we need not reach the merits of his final argument.
Affirmed.
Gladwin and Brown, JJ., agree. | [
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RITA W. GRUBER, Chief Judge
Appellant Tami Darr appeals from the Pulaski County Circuit Court's order setting aside a will, removing Ms. Darr as personal representative, and appointing the son of appellee Francis Jean Billeaudeau as personal representative. Ms. Darr contends that the court erred in setting aside the will and in excluding an audiotape recording of the execution of the will. We affirm the circuit court's order.
The decedent, Stephen Michael Herman, passed away on April 18, 2014, leaving a will that he executed on January 14, 2014, of which Ms. Darr was the sole beneficiary. Ms. Darr's mother had been married to Mr. Herman for three years in the 1970s; Ms. Billeaudeau was Mr. Herman's older half sister. Mr. Herman had no other family.
At trial, James Drew testified that he was a close friend of Mr. Herman's, had known him for more than thirty years, and had worked with him for almost nineteen years. He testified that he spoke to Mr. Herman weekly during 2013 and noticed in late 2013 that Mr. Herman was in a state of physical decline. He also testified that Mr. Herman's short-term memory "was gone" and that, on Veterans' Day in November 2013, while they were having lunch, Mr. Herman had a seizure after which paramedics took him to Baptist Hospital where he remained for at least a week.
Hospital records introduced at trial revealed that Mr. Herman was later admitted to UAMS Medical Center on December 18, 2013, suffering from memory loss, confusion, paranoia, and inability to care for himself. He remained hospitalized until December 27, 2013, and was diagnosed with "moderate to severe dementia." On December 26, 2013, Ms. Darr visited Mr. Herman in the hospital after having been contacted by Mr. Drew. It is not clear from the record exactly when Ms. Darr and Mr. Herman had been in touch before then. Ms. Darr testified that she had spoken sporadically with Mr. Herman by phone over the years but that neither she nor Mr. Herman had ever visited the other's home. She also said that she and her husband had visited with Mr. Herman on a bench in Park Hill after seeing each other walking in November 2013.
Ms. Darr said that when she returned to the hospital on December 27, 2013, Mr. Herman asked her to contact an attorney to prepare a power of attorney to assist with his transfer to a rehabilitation center. Ms. Darr had a power of attorney prepared and brought the document to Mr. Herman for execution on December 29, 2013. Sometime between December 27 and 29, 2013, Ms. Darr assisted Mr. Herman in moving from UAMS to Sandalwood Healthcare, a residential rehabilitation facility. Ms. Darr's husband, Andrew Darr, began visiting Mr. Herman regularly, and on January 2, 2014, he learned that Mr. Herman did not have a will. Later that week, Ms. Darr scheduled an appointment with an attorney, Lisa Douglas, regarding preparation of a will for Mr. Herman. Ms. Darr testified that she never discussed a will with Mr. Herman or made him aware that she had made an appointment with Ms. Douglas regarding a will.
On January 10, 2014, the Darrs met with Ms. Douglas. Ms. Darr testified that she provided Ms. Douglas with the power of attorney and with information about Mr. Herman's estate, including his property, his financial accounts, his retirement accounts, and land he owned in Roland, Arkansas. She said that she never spoke with Mr. Herman about the meeting or informed him that the meeting had taken place. Ms. Douglas drafted Mr. Herman's will, which comprised one page and provided in pertinent part as follows:
ARTICLE II.
I have no children. I give, devise, and bequeath all my property whether real, personal, or mixed, wherever, or however situated or located to Tami Thomas Darr. Because of Tami's love, care, and devotion to me, I leave all my property to her.
ARTICLE III.
I hereby nominate, constitute and appoint Tami Thomas Darr, as Executor of my estate under this, my Last Will and Testament, to serve without bond and without compensation.
Ms. Darr testified that she was not aware until after Mr. Herman's death that she was the primary beneficiary, and she stated that she thought Ms. Douglas had "assumed" that Ms. Darr would be the primary beneficiary. Ms. Darr, having power of attorney for Mr. Herman, wrote a check to Ms. Douglas to pay for her services.
Mr. Darr testified that he retrieved the will from Ms. Douglas and secured witnesses for its execution-his friend and coworker, John Spencer, and the office manager at Sandalwood, Pamela Ford-and a notary, Mr. Spencer's wife. On January 14, 2014, Mr. Herman executed the will at Sandalwood in the presence of the two witnesses, the notary, and Mr. Darr. Mr. Darr testified that he recorded the event because it was "common practice" from his former training in law enforcement. Mr. and Ms. Spencer and Ms. Ford testified that, in their opinions, Mr. Herman had a general idea of what he owned, knew that he was executing a will, and knew to whom he wanted to give his property. All also testified that he was able to communicate and ask questions and appeared to know what he was doing. None of the three knew whether he had been diagnosed with dementia or felt qualified to testify regarding such a diagnosis. Mr. Darr stated that Ms. Darr did not attend the event because he had told her that Ms. Douglas had advised him she should not be there. Mr. Darr said he put the will in their safe after it had been executed. He also said that he did not recall whether he told Ms. Darr that she was the sole beneficiary of the will because they did not "spend much time discussing the will." Ms. Darr testified that, while she was aware the will was in their safe, she had never read it and did not know that she was the sole beneficiary.
Finally, the parties entered certain stipulations verified by Ms. Douglas regarding the drafting of Mr. Herman's will. According to the stipulations, Ms. Douglas never met or spoke with Mr. Herman; she was contacted by the Darrs regarding Mr. Herman's will and drafted Mr. Herman's will "after gathering information provided to her by Tami Darr and Andrew Darr"; she did not receive any written form of communication from Mr. Herman; she "received all information and knowledge she ha[d] regarding Mr. Herman through communications with Tami and Andrew Darr"; and she was not present at the execution of the will.
In early January, Ms. Darr began writing checks for several thousand dollars each from Mr. Herman's account to Mr. Darr and herself for "estate expenses" as "payment for services." There were also several notations on the Darrs' "receipts" for these checks regarding fast food, gas, groceries, and sundries. Ms. Darr continued to issue these checks through the end of March 2014. On January 28, 2014, the Darrs assisted Mr. Herman in moving from Sandalwood to Andover Place, a senior-living apartment complex that provided meals and transportation for its residents. A discharge summary from the Sandalwood director of rehabilitation stated that Mr. Herman demonstrated mild to moderate cognitive-linguistic deficits, mild to moderate deficits in short-term-memory recall, and extreme deficits in tasks that required sustained attention.
In mid-March, Ms. Darr sold Mr. Herman's home, resulting in net equity of $48,000. On March 17, 2014, Ms. Darr wrote a check from Mr. Herman's account to Absolute Construction, a business owned by the Darrs, for $50,000. She testified that $32,000 was for a home for Mr. Herman and $18,000 was to rehabilitate the home. On March 21, 2014, she purchased a home "for Mr. Herman's benefit." The warranty deed listed the Darrs as grantees. At the time of Mr. Herman's death, the property had not been transferred into Mr. Herman's name. Ms. Darr testified that the home was purchased in the Darrs' name so they could rehabilitate the property as homeowners because Mr. Darr did not have a contractor's license. Ms. Darr gave Mr. Herman a copy of the contract on March 31, 2014. Mr. Herman revoked Ms. Darr's power of attorney on April 1, 2014.
Mr. Drew testified that he had visited Mr. Herman weekly at Sandalwood and then at Andover Place. He said sometime while Mr. Herman was at Andover Place, Mr. Herman stopped returning his phone calls. He said Mr. Herman's attitude toward him was not typical and that they renewed their normal friendship shortly before Mr. Herman's death, about the time that Mr. Herman revoked Ms. Darr's power of attorney.
Mr. Herman passed away on April 18, 2014, and Ms. Darr filed a petition for probate of will and appointment of personal representative on April 29, 2014. The court opened probate on April 30, 2014, and issued letters testamentary to Ms. Darr as personal representative on May 2, 2014. On May 14, 2014, Ms. Billeaudeau filed a motion to contest probate and remove Ms. Darr as personal representative. After hearing testimony and reviewing the evidence presented, the court granted Ms. Billeaudeau's motion to set aside the will, removed Ms. Darr as personal representative, and approved Ms. Billeaudeau's nomination of her son as personal representative of Mr. Herman's estate. The court specifically found that Ms. Darr had procured the will. Because she procured the will, there existed a rebuttable presumption that Mr. Herman lacked testamentary capacity and that the will was obtained through undue influence, which must be rebutted by proof beyond a reasonable doubt. The court found that Ms. Darr had failed to rebut this presumption. The court specifically noted the "questionable credibility and the testimony of the Darrs" concerning the unexplained selection of Ms. Darr as the sole beneficiary of the will, the obtaining by Ms. Darr of a power of attorney before the will was drafted, and the "propriety of the flurry of financial activity" involving Mr. Herman's funds and assets by Ms. Darr immediately prior to Mr. Herman's revocation of her power of attorney. The court found that all of these supported Ms. Billeaudeau's allegation of undue influence and lack of testamentary capacity.
We review probate matters de novo but will not reverse the circuit court's findings of fact unless they are clearly erroneous. Shepherd v. Jones , 2015 Ark. App. 279, at 9, 461 S.W.3d 351, 357. A finding is clearly erroneous when, although there is evidence to support it, the appellate court is left on the entire evidence with the firm conviction that a mistake has been committed. Id. We must also defer to the superior position of the lower court sitting in a probate matter to weigh the credibility of the witnesses. Robinson v. Estate of Robinson , 2016 Ark. App. 130, at 5, 485 S.W.3d 261, 264.
I. Whether Circuit Court Erred in Finding That Ms. Darr Procured the Will and Failed to Rebut Presumption
Ms. Darr argues that she met her burden of proving the elements of a valid will, placing the burden on Ms. Billeaudeau to present evidence to rebut this evidence. She contends that Ms. Billeaudeau called no witness to do so and thus failed to meet her burden to show lack of capacity or undue influence. She also contends that the circuit court erred in applying its "subjective interpretation" into the "objective proof of a valid will." We turn first to the relevant law.
Specifically, Ms. Darr contends that she provided witnesses to demonstrate that Mr. Herman had testamentary capacity. This means that the testator must have been able to retain in his mind, without prompting, the extent and condition of his property, to comprehend to whom he was giving it, and relations of those entitled to his bounty. Noland v. Noland , 330 Ark. 660, 665, 956 S.W.2d 173, 176 (1997). Ms. Darr is correct that in a typical will contest, once this has been shown, the party contesting the validity of the will has the burden of proving by a preponderance of the evidence that the testator lacked mental capacity at the time the will was executed or that the testator acted under undue influence. Looney v. Estate of Wade , 310 Ark. 708, 839 S.W.2d 531 (1992). We have long held, however, that the proponent of a will who is a beneficiary and who drafted the will or "caused it to be drafted" has the burden to prove beyond a reasonable doubt that it was not the result of undue influence and that the testator had the mental capacity to make the will. Bell v. Hutchins , 100 Ark. App. 308, 311, 268 S.W.3d 358, 361 (2007) (citing Park v. George , 282 Ark. 155, 159, 667 S.W.2d 644, 647 (1984) ); see also Robinson , 2016 Ark. App. 130, at 10, 485 S.W.3d at 268. In addition, the existence of a confidential relationship between a primary beneficiary and a testator gives rise to a rebuttable presumption of undue influence. Simpson v. Simpson , 2014 Ark. App. 80, at 25, 432 S.W.3d 66, 81. A confidential relationship arises between a person who holds power of attorney and the grantor of that power. Shepherd , 2015 Ark. App. 279, at 12, 461 S.W.3d at 358.
In this case, Ms. Darr held the power of attorney for Mr. Herman at the time the will was executed. Thus, a confidential relationship existed between her, as sole beneficiary of the will, and Mr. Herman, giving rise to a rebuttable presumption of undue influence. Further, we hold that the circuit court's determination that Ms. Darr procured the will in this case is not clearly erroneous. Ms. Darr obtained a power of attorney for Mr. Herman within days of seeing him in the hospital. Within a week of obtaining this document, she contacted an attorney to draft a will for Mr. Herman. Indeed, the Darrs orchestrated the drafting and execution of Mr. Herman's will within three weeks of Ms. Darr's first visit with him in the hospital. Ms. Darr admitted that she had not spoken with Mr. Herman about a will before making the appointment with the attorney, that Mr. Herman did not ask her to have a will drafted for him, that she did not inform him that she had contacted an attorney regarding his will, that only she and Mr. Darr were present at the meeting with the attorney, and that she never spoke with Mr. Herman about either the document or the meeting. She also admits that after the will was executed, it was placed in the Darrs' safe, to which she had access. Mr. Darr obtained witnesses and a notary and told Ms. Darr not to attend the execution of the will because the attorney had said Ms. Darr should not be present. Both Darrs testified that they did not know how Ms. Douglas decided to make Ms. Darr the sole beneficiary of the will. Ms. Douglas did not testify, but the parties entered stipulations verified by her that she never met or had any contact with Mr. Herman, that her information about the will came solely from the Darrs, and that she did not attend the execution of the will.
Ms. Darr argues that because she was not present at the execution of the will, she did not procure the will. We disagree. Ms. Darr was the sole beneficiary of Mr. Herman's will, she held his power of attorney, and she "caused" the will to be drafted. Indeed, we can think of no clearer case of procurement than when the party holding a power of attorney for a testator that has been diagnosed with dementia independently contacts an attorney to draft a will for the testator; fails to inform the testator that she has contacted an attorney; meets with the attorney without the testator's knowledge or presence; provides all of the information regarding the will to the attorney; fails to disclose to, or discuss any of this with, the testator; and retains the executed will in her personal safe. The attorney who drafted the will never spoke with, or had any written or other communication from, the testator. Indeed, Ms. Douglas had never even met Mr. Herman. The mere fact that it was Mr. Darr rather than Ms. Darr who presented the will to the testator, obtained the witnesses, read the will to the testator and witnesses, and orchestrated the execution does not, on the facts of this case, negate that Ms. Darr caused the will to be drafted. To hold otherwise would make a mockery of the law of procurement.
Consequently, the burden was on Ms. Darr to prove beyond a reasonable doubt that the will was not the result of undue influence and that Mr. Herman had the mental capacity to make the will. We have set forth the following precepts in reviewing the evidence in such cases:
The questions of mental competency and undue influence are so closely related and interwoven that we consider them together. Sullivant v. Sullivant , 236 Ark. 95, 364 S.W.2d 665 (1963). In a case where the mind of the testator is strong and alert, the facts constituting undue influence would be required to be far stronger than a case in which the mind of the testator was impaired, such as by disease or advancing age. Short v. Stephenson , 238 Ark. 1048, 386 S.W.2d 501 (1965). Testamentary capacity means that the testator must be able to retain in his mind, without prompting, the extent and condition of his property, to comprehend to whom he is giving it, and relations of those entitled to his bounty. Id. The relevant inquiry is not the mental capacity of the testator before or after a challenged will is signed, but rather the level of capacity at the time the will was signed. Pyle v. Sayers , 344 Ark. 354, 39 S.W.3d 774 (2001). Undue influence is defined as "not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property." Short , 238 Ark. at 1049, 386 S.W.2d at 501 (citing McCulloch v. Campbell , 49 Ark. 367, 5 S.W. 590 (1887) ). Undue influence may be inferred from the facts and circumstances of a case, and cases involving questions of undue influence will frequently depend on a determination of witness credibility. Simpson v. Simpson , 2014 Ark. App. 80, 432 S.W.3d 66.
Shepherd , 2015 Ark. App. 279, at 10, 461 S.W.3d at 357.
The medical records from UAMS indicate that Mr. Herman had been diagnosed with dementia weeks before he executed the will and that he suffered from memory loss, confusion, and impaired judgment. The records from Sandalwood where Mr. Herman executed the will report that he had confusion, decreased judgment, cognitive decline, deficits in short-term-memory recall, and deficits in tasks that require sustained attention. Mr. Drew testified that Mr. Herman's short-term memory "was gone" by the end of 2013. Although Ms. Darr introduced the testimony of the Spencers and Ms. Ford, all of whom testified that Mr. Herman seemed fine and alert when he executed his will, none of them testified that he discussed what property he owned and therefore that he was able to retain in his mind, without prompting, the extent and condition of his property. Further, the court recognized, after reviewing the proffered audiotape of the execution, that Mr. Herman "was responsive and alert in general" but found that this simply did not suffice to rebut the presumptions of lack of testamentary capacity and undue influence beyond a reasonable doubt.
Financial documents were entered into evidence showing that Ms. Darr began writing monthly checks to herself and Mr. Darr from Mr. Herman's account for "estate expenses" immediately after she obtained the power of attorney. For example, on January 6, 2014, a week after she obtained a power of attorney, she issued a check in the amount of $3,000.66 to Mr. Darr for estate expenses, which appeared to include $1500 in payment for his management, labor, and administrative assistance at $50 per hour. The remainder included meals, toiletries and cleaning supplies, gas, storage, and payment for help in cleaning Mr. Herman's house. The amounts were detailed on a "service invoice" submitted by Mr. Darr but did not otherwise include receipts. Ms. Darr issued a check to herself on January 6, 2014, for $2,612.24 for estate expenses, with an attached "service invoice" that included parking at UAMS, postal expenses, food, and $1300 as payment for her management, administrative, and labor skills (which included visiting the lawyer and the bank and doing laundry). Checks for similar amounts for "estate expenses" were also issued by Ms. Darr to her and Mr. Darr in early February, early March, and mid-March.
At the same time, Ms. Darr sold Mr. Herman's home, purchased a new home with Mr. Herman's funds, and had the deed designate her and Mr. Darr as owners of the property. While they testified that the home was purchased for Mr. Herman, the home was still titled in the Darrs' name at Mr. Herman's death. Mr. Herman terminated Ms. Darr's power of attorney the day after she provided him with a copy of the contract of the home purchase.
The circuit court stated that the legal and medical factors-together with the "questionable credibility" of the Darrs' testimony regarding the will, the unexplained selection of Ms. Darr as the sole beneficiary, and the flurry of financial activity involving Mr. Herman's funds and assets-were all consistent with, and supportive of, Ms. Billeaudeau's allegations of undue influence and lack of testamentary capacity. The court found that Ms. Darr failed to meet her burden to rebut these presumptions beyond a reasonable doubt. Our review of the record does not convince us that the circuit court's determination is clearly erroneous, that the circuit court relied on an incorrect burden of proof, or that it applied a "subjective interpretation" of the facts and law in this matter.
II. Exclusion of Audiotape of Execution of Will
Ms. Darr also contends that the circuit court abused its discretion in excluding the audiotape of the execution of the will, the vast majority of which consists of Mr. Darr reading the will aloud. Circuit courts are accorded wide discretion in evidentiary rulings, which we will not reverse absent a manifest abuse of that discretion. Primerica Life Ins. Co. v. Watson , 362 Ark. 54, 59, 207 S.W.3d 443, 447 (2004). Abuse of discretion is a high threshold that does not simply require error in the circuit court's decision, but requires that the circuit court act improvidently, thoughtlessly, or without due consideration.
Schwyhart v. J.B. Hunt, LLC , 2014 Ark. App. 324, at 10, 436 S.W.3d 173, 179. Additionally, we will not reverse a circuit court's ruling on the admission or rejection of evidence absent a showing of prejudice. Id. We also note that an evidentiary error is harmless if the same or similar evidence is otherwise introduced at the trial. Eft v. Rogers , 2012 Ark. App. 632, at 9, 425 S.W.3d 1, 6.
In this case, Ms. Darr argued to the circuit court and argues to us that the audiotape was admissible under the hearsay exceptions set forth in Arkansas Rules of Evidence 803(3) and 804(b)(5). She argues that the tape demonstrates Mr. Herman's mental acuity and demonstrates that he had the testamentary capacity to execute the will. She cites a case in which videotaped evidence of the execution of a will was relied on by the court. See Noland , 330 Ark. 660, 956 S.W.2d 173. The circuit court found the hearsay exceptions inapplicable to the audiotape. Rather, the court thought the exceptions applied to dying declarations when there was impending death, and it excluded the tape.
We hold that the circuit court did not abuse its discretion in excluding the audiotape. First, Noland is not persuasive: it concerned a videotape, not an audiotape, and the opinion did not concern a challenge to the introduction of the evidence, as it did here. Moreover, here, the circuit court actually reviewed the proffered transcript of the audiotape and recognized that Mr. Herman was "responsive and alert in general" but found this did not rebut the presumptions beyond a reasonable doubt. Finally, both of the witnesses to the will and the notary testified that Mr. Herman was alert, asked questions, knew that he was executing a will, and knew to whom he wanted to give his property. Thus, not only did the court actually review the evidence, it was cumulative, and Ms. Darr has failed to show she was prejudiced by its exclusion.
Affirmed.
Harrison and Glover, JJ., agree.
Ms. Spencer also notarized the durable power of attorney signed by Mr. Herman.
803(3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
804(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
...
(5) Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact; (ii) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statements into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant. | [
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RITA W. GRUBER, Chief Judge
Appellant Patrick McElroy pleaded guilty on February 13, 2017, to the offenses of first-degree battery and second-degree unlawful discharge of a firearm from a vehicle. After conducting a sentencing hearing before a jury, the Garland County Circuit Court entered several orders imposing judgment and sentences. Appellant has filed an appeal from one of those orders-a "Judgment and Conditions of Suspension," entered on March 6, 2017-alleging that his sentences are illegal. We affirm his convictions.
We set forth the relevant procedural history because it is important to our disposition in this case. Both counts for which appellant pleaded guilty are Class B felonies and carry an authorized sentence of not less than five years nor more than twenty years in prison. Ark. Code Ann. § 5-4-401 (Repl. 2013). At the conclusion of the sentencing trial on February 14, 2017, the jury returned verdict forms fixing appellant's sentences at twenty years in the Arkansas Department of Correction on the battery count and ten years in the Arkansas Department of Correction on the firearm count, to be served consecutively. The jury also returned a verdict form recommending the alternative sentence of probation.
On March 6, 2017, the circuit court held a hearing to impose the sentence. The court stated that it had considered the jury's verdict and determined what was "appropriate under the circumstances." On count one, first-degree battery, the court sentenced appellant to 180 months' imprisonment with an additional 60 months' suspended imposition of sentence (SIS). On count two, it sentenced appellant to ten years' SIS. The judge explained that the sentence was "fifteen years in the custody of the Department of Correction" with an additional fifteen years' SIS and that the ten years' SIS on count two would run consecutively to the five years' SIS on count one, which would both begin to run on the date appellant is released from custody.
The circuit court entered a document entitled "Judgment and Conditions of Suspension" on March 6, 2017, which states that appellant had executed a guilty-plea agreement and the court had "adjudged" that appellant was, in fact, guilty of first-degree battery and unlawful discharge of a firearm; pronounces a judgment of conviction; and, in accordance with the circuit court's oral ruling, commits him to the Department of Correction for a term of 180 months on count one and to suspended sentences of 60 months on count one and 120 months on count two. It does not indicate whether the sentences run concurrently or consecutively. The document then lists the conditions of suspension and is signed by the circuit judge and the appellant's attorney.
Two weeks later, on March 22, 2017, the court entered a sentencing order sentencing appellant to ten years' imprisonment and ten years' SIS for first-degree battery and to five years' imprisonment and five years' SIS for a "terroristic act," to run consecutively. Finally, on March 29, 2017, the court entered a first amended sentencing order sentencing appellant to ten years' imprisonment and ten years' SIS on the battery conviction and five years' imprisonment and five years' SIS on the conviction for unlawful discharge of a firearm, to run consecutively. Appellant filed a notice of appeal on March 29, 2017, from the "Judgment" entered on March 6, 2017.
On appeal, appellant argues that the sentences are illegal. First, because the circuit court disregarded Arkansas Code Annotated section 16-90-107(d) (Repl. 2016). He contends this statute required the court to sentence him to the minimum sentence allowed for each count, five years. Section 16-90-107(d) provides, "If the jury in any case assesses a punishment ... below the limit prescribed by law for offenses of which the defendant is convicted, the court shall render judgment and pronounce sentence according to the lowest limit prescribed by law in such cases." Appellant contends that the jury's recommendation of probation is below the limit for the offenses to which he pleaded guilty and that, by statute, the court must sentence him to the lowest allowable sentence for each offense, that is, five years.
We disagree. Section 16-90-107 is not applicable here. The jury in this case did not "assess[ ] a punishment" of probation. Rather, the jury fixed appellant's sentences at twenty years' imprisonment on the battery count and ten years' imprisonment on the firearm count and recommended those terms be served consecutively. The jury also entered a verdict form recommending an "alternative sentence of probation." This recommendation is not binding on the court. Hayes v. State , 2018 Ark. App. 158, at 1, 544 S.W.3d 587 ; Ark. Code Ann. § 16-97-101(4) (Repl. 2016). The actual assessment of probation is a matter that lies within the discretion of the circuit court. Rodgers v. State , 348 Ark. 106, 109, 71 S.W.3d 579, 581 (2002). In sentencing, there must be an exercise of judgment by the circuit court, not a mechanical imposition of the sentence suggested by the jury in every case. Id.
Second, appellant contends that his sentences are illegal because the circuit court cannot "stack" suspended sentences. He argues that the circuit court's sentence on the firearm conviction-for which the court imposed ten years' SIS to run consecutively to the sentence of fifteen years' imprisonment plus five years' SIS on the battery conviction-violates Arkansas Code Annotated section 5-4-307. Appellant is correct that a circuit court may not "stack" suspended sentences imposed for different convictions. See Walden v. State , 2014 Ark. 193, 433 S.W.3d 864. Section 5-4-307 provides specifically as follows:
(a) Except as provided in subsection (c) of this section, a period of suspension or probation commences to run on the day it is imposed.
(b)(1) Whether imposed at the same or a different time, multiple periods of suspension or probation run concurrently.
(2) The period of a suspension or probation also runs concurrently with any federal or state term of imprisonment or parole to which a defendant is or becomes subject to during the period of the suspension or probation.
(c) If a court sentences a defendant to a term of imprisonment and suspends imposition of sentence as to an additional term of imprisonment, the period of the suspension commences to run on the day the defendant is lawfully set at liberty from the imprisonment.
The State acknowledges that the circuit court's oral pronouncement appears to run afoul of this statute. However, the State claims that the circuit court's final sentencing order-the first amended sentencing order dated March 29, 2017-"controls" and does not impose an illegal sentence.
Generally, a circuit court will enter a "Sentencing Order" to reflect its judgment of conviction and the sentence imposed and to put the sentence into execution. Conditions of any suspension or probation are often attached. In this case, however, the court combined a "Judgment and Conditions of Suspension" into one document. The document adjudges appellant guilty of first-degree battery and unlawful discharge of a firearm; pronounces a judgment of conviction; and commits him to the Department of Correction for a term of 180 months plus an additional suspended sentence of 60 months on count one and sentences him to a suspended sentence of 120 months on count two. This is a judgment, and it puts the sentence into execution. Once a sentence is put into execution, the circuit court loses jurisdiction to modify or amend the sentence. Gavin v. State , 354 Ark. 425, 429, 125 S.W.3d 189, 191 (2003). Thus, the circuit court lost jurisdiction to modify that sentence, and its sentencing order and first amended sentencing order purporting to do so are null and void. Piper v. Potlatch Fed. Credit Union , 2009 Ark. App. 701, at 7, 371 S.W.3d 704, 709 (holding that actions taken by a court without jurisdiction are null and void).
With respect to this judgment, it sentences appellant to fifteen years' imprisonment plus five years' SIS on first-degree battery and to ten years' SIS on second-degree unlawful discharge of a firearm. It does not state whether these sentences are to run consecutively or concurrently. Unless a court orders multiple sentences of imprisonment to run consecutively, the sentences for a defendant convicted of more than one offense shall run concurrently. Ark. Code Ann. § 5-4-403 (Repl. 2013). Regarding suspended sentences specifically, section 5-4-307 provides that a period of suspension begins to run on the day it is imposed and that a period of suspension runs concurrently with any state term of imprisonment to which a defendant is or becomes subject to during the period of the suspension or probation. Thus, unless the order states otherwise-and this order does not-appellant's sentences run concurrently and are not illegal. See Dodds v. State , 2018 Ark. App. 86, 543 S.W.3d 513. Accordingly, we affirm the convictions.
Affirmed.
Harrison and Brown, JJ., agree.
Although there is generally no right to appeal from a guilty plea, appeals are allowed in certain instances, including but not limited to, when the issue is "nonjurisdictional" and arose "during the penalty phase of the trial," Hill v. State , 318 Ark. 408, 413, 887 S.W.2d 275, 278 (1994), or involves an appeal from a decision that was "neither a part of the guilty plea acceptance nor the sentencing procedure which was an integral part of the guilty plea acceptance." Burgess v. State , 2016 Ark. 175, at 6, 490 S.W.3d 645, 649. Because this appeal challenges the legality of the sentence and is from a sentencing hearing before a jury after acceptance of the guilty plea, it is properly before us.
Appellant was charged with first-degree battery and terroristic act, a Class Y felony, but pleaded guilty to first-degree battery and the lesser charge of second-degree unlawful discharge of a firearm from a vehicle.
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I. Factual Background
Cantrell's injuries resulted from a single-car rollover accident that occurred in an eastbound lane of Interstate 630 in Little Rock on December 27, 2006. A truck driver who witnessed the accident testified that he saw Cantrell attempt to merge into the middle lane from the left side of the highway. A car was already in the middle lane when Cantrell attempted to merge, causing her to abruptly steer her Tundra back into the left lane. Cantrell appeared to lose control as she did so, and the truck collided with the median barrier of the highway. Cantrell's truck started to roll when it hit the barrier, and according to the witness, Cantrell was ejected from the vehicle after the first roll.
Cantrell's expert in accident reconstruction, Bruce Enz, agreed that the Tundra's collision with the median barrier induced a "passenger-side-leading roll." The vehicle rolled twice, ejecting Cantrell in the latter part of the roll sequence. The front wheel of the Tundra fell off in the collision, and the vehicle's subsequent contact with the ground produced approximately "8 to 12 g's of force" at the Tundra's center of gravity. The gravitational forces were carried through the Tundra's suspension system and frame, eventually reaching the seat-belt restraint system. While Mr. Enz could not determine the amount of gravitational force absorbed by the restraint system, he opined, based on the bent appearance of the seat-belt stalk and the lack of damage to other interior structures in the passenger compartment, that Cantrell had been wearing her seat belt during the accident. Mr. Enz also opined that a circular breakage pattern on the windshield did not indicate that Cantrell failed to use her seat belt, as Toyota alleged.
Cantrell offered her inertial-unlatching theory principally through the testimony of Stephen Syson, a former design engineer at General Motors. Mr. Syson testified that the driver's seat belt in Cantrell's Tundra had an end-release buckle that was manufactured by QSS, a Canadian company. The driver unlatches the buckle with a press of a button that is supported by plastic "Delrin" springs that are manufactured by DuPont. Mr. Syson testified that the Delrin spring was prone to sag or break with repeated use, and DuPont had long warned that the Delrin spring should not be used in any application that would subject it to continuous force. According to Mr. Syson, the button and supporting springs in the QSS buckle are subjected to continuous force even when the latch is not inserted in the buckle.
Mr. Syson also testified that Toyota failed to adequately test the buckle while the Tundra was in preproduction, and his own testing of the QSS buckle-including dropping it from a height of one meter-indicated that it would inertially unlatch when subjected to forces that were less than those present in the rollover of Cantrell's Tundra. According to Mr. Syson, the Tundra dropped more than a meter after losing its right front wheel, causing approximately 86 to 100 g's of vertical force to unlatch Cantrell's seat belt. Finally, Mr. Syson testified that his inspection of the seat belt and buckle from Cantrell's Tundra, as well as the interior of the passenger compartment, indicated that she regularly wore her seat belt and that she was wearing it when the accident occurred.
Cantrell also introduced the testimony of Dr. Joseph Burton, who testified that his inspection of the Tundra's windshield did not reveal any indication that Cantrell's head hit the windshield, as Toyota alleged. He also opined that various injuries that she suffered during the accident, including a crack in her breastbone and a hematoma on her left adrenal gland, were consistent with seat-belt use.
Toyota introduced the testimony of Dr. William Van Arsdell, who also conducted an inspection of Cantrell's Tundra and opined, from the absence of "load marks" on the seat belt, that Cantrell was not actually wearing her seat belt at the time of the accident. Dr. Van Arsdell also explained that the only function of the Delrin spring is to return the buckle's end-release button to its original position, and contrary to Dr. Syson's testimony, the springs are under load only when the button on the buckle is depressed. His inspection of the buckle from Cantrell's Toyota indicated that the spring was intact. The doctor also explained that the seat belt is unlikely to inertially unlatch during a rollover accident because the load resulting from the belt's restraint of the occupant makes it harder to release the belt, and he declared that the inertial-unlatching theory involving the end-release buckle is not generally accepted in mainstream science.
Toyota also introduced the testimony of Dr. Michael Carhart, who disagreed with Dr. Burton's assessment that the damage to the Tundra's windshield was not a "head strike" indicating that Cantrell was not wearing her seat belt. Using Dr. Burton's photographs of the windshield after the accident, Dr. Carhart testified that the pattern consisted of concentric, radial cracks with a pulverized-glass center that was indicative of a head strike. Dr. Carhart was unable to personally inspect the windshield in the same condition that Dr. Burton did, however, because he found it "in the rear of [the Tundra] folded and balled up" when he subsequently inspected the Tundra in 2010.
Finally, Toyota introduced the testimony of Motori Shibata, a safety engineer at Toyota. Like Dr. Van Arsdell, Mr. Shibata explained that the function of the Delrin spring is simply to return the push button on the end-release buckle, and it does not have any function in keeping the seat belt latched. The components responsible for keeping the seat belt latched are made of steel. Mr. Shibata further testified that Toyota used several methods to thoroughly test the seat belt in the 2000 Tundra, including a series of voluntary rollover tests. Mr. Shibata explained that while the rollover tests had been filmed at the time Toyota conducted them, Toyota judged that it was unnecessary to keep the film because (1) none of the components failed, (2) Toyota's engineers could understand the results from the still photographs and the data, and (3) the federal government did not require the tests.
As indicated above, the jury ultimately found for Toyota, responding "No" to jury interrogatory No. 1, asking whether the jury found "from a preponderance of the evidence that the driver's seat-belt buckle in the 2000 Toyota Tundra manufactured, assembled, sold, or distributed by Toyota was in a defective condition that rendered it unreasonably dangerous." The circuit court entered the judgment on September 26, 2016.
II. Direct Appeal
A. AMI Civ. 106
At the close of the evidence, both parties proffered jury instructions according to AMI Civ. 106, allowing juries to draw adverse inferences from parties' intentional destruction or suppression of evidence (otherwise known as spoliation). Cantrell proffered the instruction based on Mr. Shibata's testimony that Toyota destroyed the video recordings of the rollover testing that it performed while the 2000 Tundra was in preproduction, arguing that good engineering practice and Toyota's alleged awareness of unrelated claims involving the QSS buckle required Toyota to retain the recordings. Toyota, on the other hand, proffered the instruction based on the deterioration of the windshield while it was in Cantrell's custody. According to Toyota, the windshield was material to the issue of whether Cantrell had been wearing her seat belt at the time of the accident, and Cantrell and her counsel failed to maintain it in a condition that allowed a meaningful inspection by Toyota's expert, Dr. Carhart.
The circuit court denied Cantrell's requested instruction, finding that there was no evidence that Toyota had destroyed the recordings with any knowledge of a pending or potential claim. The circuit court granted Toyota's request to instruct the jury according to AMI Civ. 106, however, rejecting Cantrell's argument that there was no evidence that she intentionally destroyed the windshield. The jury was instructed as follows:
If you find that a party intentionally destroyed, discarded or lost the 2000 Toyota Tundra or any component of the 2000 Toyota Tundra with knowledge that it may be material to a potential claim, you may draw the inference that an examination of it would have been unfavorable to that party's claim. When I use the term "material" I mean evidence that could be a substantial factor in evaluating the merit of a claim or defense in this case.
Cantrell now appeals both rulings. Because the circuit court abused its discretion when it granted Toyota's request for a spoliation instruction, we reverse the judgment and remand the case for a new trial.
This court will not reverse a circuit court's decision to give or reject an instruction unless the court abused its discretion.
Bunn Builders, Inc. v. Womack , 2011 Ark. 231, at 5, 2011 WL 2062393. "An abuse of discretion occurs when the circuit court acts improvidently, or thoughtlessly, [or] without due consideration." Milner v. Luttrell , 2011 Ark. App. 297, at 3, 384 S.W.3d 1, 3. "[A] party is entitled to a jury instruction when it is a correct statement of the law and when there is some basis in the evidence to support giving the instruction." Bunn Builders,Inc. , 2011 Ark. 231, at 5. While the supreme court has not required circuit courts to make specific findings of bad faith on the part of spoliators before submitting spoliation instructions to juries, see id. at 11, it has nonetheless defined spoliation as "the intentional destruction of evidence," Id. at 7, and has required circuit courts to find some evidence of intentional conduct before instructing juries on spoliation of evidence. Id. at 11 ; see also Rodgers v. CWR Constr., Inc. , 343 Ark. 126, 133, 33 S.W.3d 506, 511 (2000) (holding that the circuit court did not abuse its discretion by declining to give the instruction when there was no indication that the evidence was intentionally lost or destroyed); see also Tomlin v. Wal-Mart Stores, Inc. , 81 Ark. App. 198, 209, 100 S.W.3d 57, 64 (2003) (same).
In this case, there was no evidence that Cantrell or her counsel gave an order to destroy the windshield or that she engaged in any intentional conduct that warranted the instruction. The evidence showed, at most, that the windshield fell away from the truck's frame-and that someone placed the windshield in the bed of the truck-while the truck was in Cantrell's custody. Because the circuit court did not make any finding of intentional conduct that supported giving the instruction, and there is no evidence of intent that would permit such a finding, the circuit court abused its discretion by granting Toyota's request to instruct the jury according to AMI Civ. 106. Accordingly, we reverse and remand for a new trial.
Additionally, because the issue is likely to occur on retrial, we further hold that the circuit court did not err by refusing Cantrell's proffered instruction. While there is no dispute that Toyota intentionally ordered the destruction of the video recordings of the rollover tests, there was no evidence that there was any pending litigation or potential claims involving the Tundra's QSS buckle at the time that Toyota destroyed the recordings or that the destruction of the videos was anything outside of Toyota's routine practice. See Tomlin , 81 Ark. App. at 209, 100 S.W.3d at 64. Therefore, the circuit court properly refused to instruct the jury to consider whether Toyota spoliated evidence.
B. Additional Issues Likely to Occur on Retrial
Cantrell raises several additional issues that are likely to occur on retrial, including that the circuit court abused its discretion when it denied her motion for a mistrial after Toyota's counsel made a reference to her insurance company during his opening statement to the jury. Cantrell also challenges several of the circuit court's evidentiary rulings, including the court's decision to allow Corporal Cleary Chapman, the police officer who investigated the accident, to state his opinion that Cantrell was not wearing her seat belt. She also argues that the circuit court erred by excluding extrinsic evidence demonstrating the bias and dishonesty of defense witness Lucy Claeys and by curtailing her attempts to establish Mr. Syson's and Mr. Burton's expert qualifications. Finally, Cantrell argues that the circuit court should have allowed her to introduce evidence of other similar incidents involving the same or a substantially similar seat-belt buckle. We address each of these issues below.
1. Reference to insurance during opening statements
During the defendant's opening statement, Toyota's counsel said the following to the jury:
This vehicle was not preserved post-accident. How did that happen? It happened because about three months after the accident, Ms. Cantrell signed over the title to her Tundra to her insurance company[.]
Cantrell's counsel immediately moved for a mistrial, arguing that "mentioning Arkansas liability insurance in this matter is not proper[;]" consequently, the jury "is contemplating an insurance settlement may or may not have occurred and there is nothing [he] can do to fix it." Toyota's counsel responded that "Cantrell's insurance is not an issue here," and that he made the statement-apparently in furtherance of Toyota's case for spoliation of the windshield-to explain "why [Cantrell] signed over title." The circuit court denied Cantrell's motion for a mistrial and gave the following instruction to the jury:
I will remind you that the statements of counsel made during opening statements are not evidence and therefore, I am going to remind you that you don't treat them as evidence. Secondly, we're not going to have any more conversations about disposition of the vehicle or how the vehicle was disposed of. We're not going to deal with that any more. Disregard any statements about disposition of the vehicle.
Additionally, the circuit court later stated the following on the record:
I have considered the issue raised by the motion for mistrial. The motion for mistrial as to the issue of insurance is denied for the same reasons that I denied it previously.
All of the cases that have been shown to me involve reference[s] to insurance that were made during the course of evidence. Not a single case was presented to the Court that involved a situation where insurance was mentioned in opening statement or closing argument, which ... the jury instructions plainly indicate are not evidence.
Cantrell now appeals the circuit court's denial of her motion for a mistrial, arguing that the circuit court's instruction distinguishing the statements of counsel from evidence was insufficient to cure the prejudice that resulted from the reference to her insurance. We hold that the circuit court did not abuse its discretion by denying Cantrell's motion for a mistrial.
This court does not reverse the denial of a motion for a mistrial in the absence of an abuse of discretion or manifest prejudice to the movant. Milner , 2011 Ark. App. 297, at 3, 384 S.W.3d at 3. Additionally, "[a] mistrial is a drastic remedy that should be granted only when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when the fundamental fairness of the trial itself has been manifestly affected." Id. at 4, 384 S.W.3d at 4.
Further, "[a]s a general rule, it is improper for either party to introduce or elicit evidence of the other party's insurance coverage," and "[t]he injection of insurance coverage is proper only when it is relevant to some issue in the case."
Synergy Gas Corp. v. Lindsey , 311 Ark. 265, 269, 843 S.W.2d 825, 828 (1992). "The crux of the matter ... is whether ... the reference to insurance is relevant to an issue or is designed to skew the jury's thinking because of the presence or absence of a deep pocket." Id. at 269, 843 S.W.2d at 828 (internal quotation marks omitted). The supreme court has held that a mistrial is the proper remedy when there is "an intentional and deliberate reference to insurance when it [is] not an issue in the case and when the opposing party [has] not opened the door for its admission[.]" Id.
The reference to Cantrell's insurance company was deliberate to the extent that counsel made it-by his own admission-to explain "why [Cantrell] disposed of the vehicle and failed to preserve it." Cantrell is also quite correct that Toyota's counsel could have made the same point by invoking a generic third party in place of Cantrell's insurance company. Additionally, Cantrell's suggestion that Toyota's counsel should have known to avoid the reference is well taken, because "[t]he rule against mentioning insurance when it is not relevant is well known in this state." Hacker v. Hall , 296 Ark. 571, 576, 759 S.W.2d 32, 35 (1988).
Nevertheless, we cannot agree that the circuit court abused its discretion by denying the motion for a mistrial. It does not appear that the reference, while deliberate, "was designed to skew the jury's thinking because of the presence or absence of a deep pocket," Synergy Gas Corp. , 311 Ark. at 269, 843 S.W.2d at 828, and for that reason, it is not at all like the closing argument in Vermillion v. Peterson , 275 Ark. 367, 368, 630 S.W.2d 30, 30 (1982), or the questions pursuing responses about the parties' insurance coverage in Hacker , 296 Ark. at 575-77, 759 S.W.2d at 35, and Synergy Gas Corp. , 311 Ark. at 268-69, 843 S.W.2d at 828. Moreover, it was a brief reference to insurance during an opening statement of a two-week trial; therefore, is more akin to the brief display of the letter containing the words "insurance company" that did not warrant a mistrial in Milner , 2011 Ark. App. 297, at 5, 384 S.W.3d at 4. Accordingly, the circuit court did not abuse its discretion by denying Cantrell's motion for a mistrial. Toyota's counsel, however, should take caution at retrial to avoid such a reference. The argument to this court that the reference was relevant to explain the condition of the Tundra is belied by the argument that the alleged destruction of evidence occurred after the insurance company had returned custody of the Tundra to Cantrell.
2. Corporal Cleary Chapman
Corporal Chapman testified that he was the first state trooper on the scene of the accident. When he arrived, he found that EMTs had already moved Ms. Cantrell to an ambulance. Corporal Chapman's investigation of the scene revealed, consistent with other testimony, that Cantrell's Tundra rolled twice after striking the median barrier. The corporal testified that he did not examine the Tundra's seat belts during his investigation, and he was not a "seat-belt expert of any kind." Nevertheless, over Cantrell's objection, the circuit court allowed Corporal Chapman to testify on cross-examination that "based on [his] investigation into [the] accident, [he] determined that [Cantrell] was not wearing her seat belt." Cantrell now contends that the circuit court erred because Corporal Chapman was not qualified to give that opinion. We agree.
Rule 701 of the Arkansas Rules of Evidence provides that "[i]f a witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) [r]ationally based on the perception of the witness; and (2) [h]elpful to a clear understanding of his testimony or the determination of a fact in issue." Opinion testimony that embraces an ultimate issue, however, is properly admitted only if the opinion is "otherwise admissible." Ark. R. Evid. 704 (2017).
Corporal Chapman's opinion fails to meet the first criterion of Rule 701 because it is based only on a fireman's hearsay report that Cantrell was found outside the vehicle when emergency services arrived. Even overlooking the secondhand nature of the report, the information that Cantrell was ejected from the vehicle would-at most-allow Corporal Chapman to give an opinion on a point that neither party disputes-that Cantrell was unrestrained at some point during the accident. To be qualified to give an opinion on the ultimate issue in the case-whether Cantrell was unrestrained because she was not wearing a seat belt (or because the seat belt failed)-Corporal Chapman had to personally observe facts bearing on that issue. He did not, since he admitted that he did not examine the seat belt or, it appears, observe the types and locations of Cantrell's injuries. Accordingly, the circuit court erred when it permitted Corporal Chapman to give his opinion that Cantrell was not wearing her seat belt at the time of the accident.
3. Lucy Claeys
Ms. Claeys is Ms. Cantrell's former sister-in-law whose video-recorded deposition was played for the jury at trial. According to the parties, Ms. Claeys testified on direct examination that she saw Cantrell's seat belt in an unlatched and stowed condition when she and another family member viewed the Tundra shortly after the accident. She apparently also testified that Cantrell urged her to lie regarding the appearance of the seat belt, as well as the frequency of her seat-belt use.
Cantrell sought to impeach Ms. Claeys's video-recorded direct examination in two ways. First, Cantrell wanted to introduce the testimony of Pastor Greg Mills, who would have testified about the events that ensued after Ms. Claeys told him that her new husband was selling drugs and abusing her children. According to Pastor Mills, Ms. Claeys was hostile toward Cantrell's family after her first husband died, and she had the mistaken impression that Cantrell, rather than Pastor Mills, called the Department of Humans Services (DHS) to report the alleged child abuse and drug use. Second, Cantrell sought to introduce portions of the deposition in which she cross-examined Ms. Claeys about the contents of the report and her mistaken belief that Cantrell made the report to DHS. Applying Arkansas Rule of Evidence 608(b), the circuit court granted Toyota's motion in limine regarding Pastor Mills's testimony and denied Cantrell's request to cross-examine Ms. Claeys about the details of the report. Cantrell now argues that the circuit court abused its discretion because Pastor Mills's testimony about the events underlying the DHS report, as well as Ms. Claeys's misplaced hostility toward Cantrell, was admissible evidence of Ms. Claeys's bias against her.
As an initial matter, "impeachment by proof of conduct under Rule 608(b) is a separate matter from impeachment by proof of bias," Fowler v. State , 339 Ark. 207, 219, 5 S.W.3d 10, 16 (1999), and the arguments below, as well as the circuit court's rulings, appear to have conflated the two. Because it nonetheless appears that Cantrell advanced her current argument that Pastor Mills's testimony was admissible as proof of bias, we address it here.
In civil and criminal cases alike, "evidence of a witness's bias or prejudice is not a collateral matter, and if a witness denies or does not fully admit the facts claimed to show bias, the attacker has a right to prove those facts by extrinsic evidence." Wood v. White , 311 Ark. 168, 170, 842 S.W.2d 24, 26 (1992). Moreover, "hostility of a witness toward a party is evidence of bias and may be shown by the fact that the witness has had a fight or quarrel with the party." Id. at 170, 842 S.W.2d at 26. The circuit court did not err by excluding Pastor Mills's testimony.
A circuit court has wide latitude to impose reasonable limits on cross-examination based on concerns over confusion of the issues, see Gordon v. State , 326 Ark. 90, 93, 931 S.W.2d 91, 94 (1996), and the circuit court was within that discretion when it limited Cantrell's predicate questions about Ms. Claeys's bias to whether there was "an acrimonious or unpleasant relationship" between them. Additionally, Cantrell did not establish the foundation for admitting Pastor Mills's testimony because Ms. Claeys acknowledged her hostile relationship with Cantrell on cross-examination. The circuit court, therefore, did not abuse its discretion.
4. Expert witnesses
Cantrell next contends that the circuit court erred when it "arbitrarily curtailed [her] counsel's attempt to establish [the] background and qualifications" of her expert witnesses, Mr. Syson and Dr. Burton. The record demonstrates, however, that both experts testified extensively about their background and qualifications, and the circuit court simply exercised its wide discretion to limit further inquiry on an undisputed issue. See Ark. R. Evid. 610(a) (2017) (requiring courts to exercise reasonable control over the interrogation of witnesses and presentation of evidence to avoid needless consumption of time, among other things). Cantrell's argument, therefore, lacks merit.
5. Other similar incidents
Before trial, Toyota filed a motion in limine to exclude evidence of other rollover accidents involving seat-belt buckles that were either identical or substantially similar to the QSS buckle in Cantrell's 2000 Tundra. The first accident-called the Denmark case-involved a 1996 Geo Prism that had the same seat-belt system and QSS buckle as Cantrell's 2000 Toyota Tundra. Cantrell alleged that the QSS buckle in the Prism released during a rollover after a severe ground impact to the wheels. The second accident, the Oliver case, involved a 1998 Toyota Camry that had the same QSS buckle as the 2000 Tundra. Cantrell alleged that the Camry "rolled over and it suffered an impact on the wheels, directly onto the wheels during that rollover, which caused the seat-belt buckle to unlatch much like the forces in [the Cantrell] accident." The third accident, called the Robinson case, involved a Toyota 4Runner that had a Tokai Rika buckle that according to Cantrell, was "built to the same design drawing as the QSS buckle involved in [the Cantrell] case, and that Tokai Rika buckle unlatched due to inertial forces during a ground impact which removed the wheel[.]" Finally, the Rodriguez case involved a 2000 Toyota Tundra, like Cantrell's, that had the same seat-belt system and buckle. As in the other accidents, the seat belt became unlatched during a rollover accident.
Cantrell sought to introduce the evidence of the other accidents during Mr. Syson's testimony. During his voir dire examination, Mr. Syson explained that he would testify about an inertial-release scenario in which "the forces that caused the buckle to release ... are transmitted up ... to the buckle through the stalk ... from the frame of the vehicle." After explaining that the accidents involved essentially the same buckle, Mr. Syson also testified on cross-examination that the Camry in the Oliver case has "a different body structure [and] different chassis than Cantrell's Tundra." In particular, the Camry "has a different buckle stalk" than Cantrell's Tundra, and the Camry is a unibody vehicle that does not have "a traditional ladder frame" like the Tundra. Likewise, the Geo Prism in the Denmark case was a sedan akin to the Toyota Corolla that, like the Camry, had a buckle stalk that was shorter than the stalk in Cantrell's Tundra. Mr. Syson also conceded that the Tokia Rika buckle's mechanism was not identical to the mechanism in the QSS buckle, and the rollover accident in the Rodriguez case, which did involve a 2000 Toyota Tundra, had several circumstances that were not present in Cantrell's accident; most notably that the truck in Rodriguez rolled over as it towed a loaded U-Haul trailer down a steep hill.
The circuit court denied the motion in limine, initially ruling, in pertinent part, as follows:
[T]he Supreme Court in [ Ford Motor Co. v. Massey , 313 Ark. 345, 855 S.W.2d 897 (1993) ] dealt with the identical nature of the equipment at issue and in this-in the instant case, case before me, [Cantrell] contend[s] that the seat-belt mechanism involved in Ms. Cantrell's case are substantially similar to the seat-belt mechanisms in Oliver, Rodriguez-Russo-there was a third one-Denmark and Robinson.
....
As I heard the witness's testimony, I heard reference to whether or not the makeup of the seat-belt mechanism was plastic or the witness appears to take the view that the makeup of the seat-belt mechanism in the cases were substantial-were substantially the same, although the dynamics of the collisions or the accidents that occurred were different.
Based on that, I'm going to allow the witness to testify as to those [incidents] and find that the plaintiffs have laid an adequate foundation to allow the witness to testify. That's the [c]ourt's ruling.
Nevertheless, the circuit court later changed its ruling on the Oliver , Denmark , and Robinson accidents and permitted Mr. Syson to testify only about the Rodriguez accident involving a 2000 Toyota Tundra. After Cantrell proffered the circumstances of each of those accidents, the circuit court explained its ruling as follows:
The Court's ruling as to the other similar incidents through Mr. Syson was that the other similar incidents were not substantially similar to Ms. Cantrell's vehicle so as to pass the relevancy test.
For purposes of the record, a 1997 Geo Prism, a 1998 Toyota Camry are both passenger sedans, compact, subcompact passenger sedans, which the witnesses have testified talked about the particular rollover tendency of light trucks and high center of gravity vehicles.
And with regards to a Toyota 4Runner, there had been no showing that the Toyota 4Runner was a substantial[ly] similar vehicle to Ms. Cantrell's vehicle so as to meet the foundational standard of relevancy as to that.
On appeal, Cantrell argues that the circuit court abused its discretion when it reversed its initial ruling and excluded Mr. Syson's proffered testimony regarding the accidents in Oliver , Denmark , and Robinson. Specifically, Cantrell argues that she met her burden of showing substantial similarity when she established that the Oliver and Denmark accidents involved the same QSS buckle that was in her Tundra and when she established that the Robinson accident involved a buckle whose mechanism was substantially similar to the QSS buckle. Toyota asserts in response that the accidents were not substantially similar because they involved different vehicle frames, different seat-belt stalks, and, in the Robinson case, a different type of buckle.
" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Ark. R. Evid. 401 (2017). "Although relevant," however, "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury[.]" Ark. R. Evid. 403.
Generally, "evidence of similar occurrences is admissible only upon a showing that the events arose out of the same or substantially similar circumstances." Ford Motor Co. v. Massey , 313 Ark. 345, 354, 855 S.W.2d 897, 902 (1993). "The burden rests on the party offering the evidence to prove that the necessary similarity of conditions exists." Id. at 354, 855 S.W.2d at 902. Additionally, "the relevancy of such evidence is within the [circuit court's] discretion, subject to reversal only if an abuse of discretion is demonstrated." Id. at 354-55, 855 S.W.2d at 902.
"Whether an occurrence is substantially similar to the matter at hand depends on the underlying theory of the case." Id. at 354-55, 855 S.W.2d at 902. "For example, evidence submitted to demonstrate a dangerous condition necessitates a high degree of similarity because it weighs directly on the ultimate issue to be decided by the jury." Id. "[T]he requirement of substantial similarity is relaxed," however, "when the evidence of other incidents is used to show notice or awareness of a potential defect in the product." Id.
The circuit court did not abuse its discretion when it excluded Mr. Syson's testimony about the rollover accidents in the Oliver , Denmark , and Robinson cases. Cantrell's theory for proving the buckle's defective condition depended on the transmission of gravitational forces through the frame of the vehicle to the buckle stalk. While the Oliver , Denmark , and Robinson cases involved the same or substantially similar seat-belt buckles, there were notable differences in the length of the buckle stalks and the frames of the vehicles involved. The Rodriguez case, on the other hand, involved a 2000 Toyota Tundra that obviously had the same buckle, stalk, and frame as the Tundra that was at issue in Cantrell's case. Under these circumstances, we cannot say that the circuit court acted "thoughtlessly, improvidently, or without due consideration." Milner , 2011 Ark. App. 297, at 3, 384 S.W.3d at 3, when it limited Mr. Syson's testimony to the rollover accident that occurred in Rodriguez.
III. Toyota's Cross-Appeal
Finally, Toyota conditionally cross-appeals the circuit court's denial of its motion for a directed verdict, arguing that Cantrell failed to introduce substantial evidence establishing that the seat-belt buckle was defective. Because Toyota's argument attacks the weight of the evidence, rather than its sufficiency, we affirm the circuit court's denial of the motion for a directed verdict.
"In determining whether a directed verdict should have been granted, [the court] reviews the evidence in a light most favorable to the party against whom the verdict is sought and give[s] it its highest probative value, taking into account all reasonable inferences deducible from it." Morehart v. Dillard Dep't Stores , 322 Ark. 290, 292, 908 S.W.2d 331, 333 (1995). Additionally, "[a] motion for a directed verdict should be granted only if there is no substantial evidence to support a jury verdict." Id. at 292, 908 S.W.2d at 333. "When the evidence is such that fair-minded persons might reach different conclusions, then a jury question is presented[.]" Id. Applying these deferential standards of review, we affirm the circuit court's denial of Toyota's motion for a directed verdict.
Toyota principally argues that Cantrell failed to prove that the Tundra's seat-belt buckle was defective because she failed to introduce any evidence that the Delrin spring in her seat-belt buckle was broken or sagging, or that the gravitational forces of her accident reached the level that Mr. Syson testified was necessary for the buckle to inertially unlatch. Looking at the evidence in the light most favorable to Cantrell, however, Mr. Syson testified that according to his tests, a QSS buckle like the one installed in Cantrell's Tundra became inertially unlatched at forces less than those that were present in Cantrell's rollover accident. He further testified that the buckle was prone to fatigue, and his inspection of the buckle in Cantrell's Tundra indicated that she habitually used her seat belt. Cantrell also offered evidence that she had been restrained by her seat belt at some point during the accident, and despite that, she was ejected from the vehicle. Indeed, it appears that Toyota's attack on the sufficiency of the evidence goes more to the weight of Mr. Syson's expert testimony, which is a matter for a jury. See Wal-Mart Stores, Inc. v. Williams , 71 Ark. App. 211, 215, 29 S.W.3d 754, 756 (2000). Accordingly, the circuit court's denial of Toyota's motion for a directed verdict is affirmed.
IV. Conclusion
Because we hold that the circuit court abused its discretion when it submitted Toyota's spoliation instruction to the jury, we reverse and remand the case for a new trial. The circuit court's denial of Toyota's motion for a directed verdict is affirmed on Toyota's cross-appeal because Toyota's challenge goes more to the weight of the evidence rather than its sufficiency.
Reversed and remanded on direct appeal; affirmed on cross-appeal.
Vaught and Murphy, JJ., agree.
One additional issue, an allegation that the circuit court demonstrated prejudicial bias against Cantrell's counsel, is not preserved for our review. See Neumann v. Smith , 2016 Ark. App. 14, at 15, 480 S.W.3d 197, 206.
While Ms. Claeys's cross-examination was transcribed for the record, her direct examination, for whatever reason, was not. See Ark. Sup. Ct. Admin. Order No. 4(a). | [
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PHILLIP T. WHITEAKER, Judge
Appellant James Pilkinton and appellee Hope Pilkinton were divorced by a decree of the Baxter County Circuit Court. James appeals the final decree, arguing that the circuit court erred in the division of the couple's marital and nonmarital property. We find no error and affirm.
Hope and James began living together in 2002 and married in 2011. They subsequently separated, and Hope filed a complaint for divorce in 2014; James answered and filed a counterclaim for divorce. The parties proceeded to a contested hearing on the issues of their real and personal property. As to the real property, Hope testified that she owned the land on which she and James lived before they were married, and his name was never placed on the real estate. James did not contest the evidence that Hope owned the real estate before the marriage and that his name was not on the deed. He did present evidence that he had made contributions to the value of the real estate during the marriage.
Regarding their personal property, Hope testified that she owned a small hay-farming business called Steel Dust Farms before the marriage. She acknowledged that in 2005 or 2006, before they were married, James founded a lawn-care business called James Tree and Lawn Service. She contended, however, that during the marriage she and James together purchased items to be used for that business. Hope presented the court with a list, designated Plaintiff's Exhibit 1, of the property and equipment that she contended were purchased for James's business during the marriage. James did not object to the exhibit. Likewise, James described some of the equipment that he used for his business. He asserted that he had paid for some of the equipment but admitted that Hope had paid for some. He further testified about some of the equipment that was on Hope's exhibit 1 without disputing her inclusion of the equipment on that list or her characterization of it.
With regard to other personal-property interests, Hope introduced Plaintiff's Exhibit 2, which was a handwritten list of personal property that James removed from their house after she filed for divorce; she captioned this list "A tentative list of what he took (there is so much more)." On this list, she denoted items that were hers before the marriage, items she considered to be James's nonmarital property, and items that were deemed marital property. James did not object to the introduction of the exhibit.
In connection with exhibit 2, Hope explained that she had inherited much of her personal property from her father. She reported that many of the items were no longer present on the property because James had removed them before the hearing. She asked the court to order that all of the items on the list that had been bought during the marriage be returned and sold, the items of personal property that were hers returned to her, and the items that belonged to James awarded to him. At the end of the hearing, the circuit court invited both parties to submit briefs on some "recent developments in the marital property law." Neither party submitted a brief.
The circuit court entered a final decree on July 11, 2017, addressing the nonmarital-and marital-property interests of the parties. As to the nonmarital property, the court found the home and land on which the couple resided and their individually owned and operated businesses to be nonmarital property. The court noted that both parties contributed to improvements to both the land and the businesses but concluded as follows:
Without more evidence than [was] presented at trial, the contributions Mr. Pilkinton and Ms. Pilkinton made to the improvement of the other's property or business can only be considered voluntary and in the nature of gifts. Thus, Mr. Pilkinton has no interest in Ms. Pilkinton's real property and the improvements thereon, and Ms. Pilkinton is awarded the same. Neither party has an interest in the other's business. Therefore, Ms. Pilkinton is awarded the assets of Steel Dust Farms. Mr. Pilkinton is awarded the assets [of] James Lawn and Tree Service, including the equipment listed on Exhibit "A" attached hereto and incorporated herein.
The court then went on to award to Hope, as her nonmarital property, the items she identified on plaintiff's exhibit 2 as belonging to her, including the items that she had inherited from her father; the court awarded to James, as his nonmarital property, the items Hope had marked as "his" on the same exhibit.
As to the marital property, the court attached to its decree an exhibit "B." The items on the court's exhibit "B" were the remaining items from Hope's exhibit 2 that she had designated as marital property-i.e., those that were designated neither Hope's nor James's individual property. Regarding these items, the court provided as follows:
The items listed on Exhibit "B" which is attached hereto and incorporated herein are marital property. The items listed in Exhibit "B" shall be assembled and sold at public auction within forty-five days of the filing of this Decree. Any sums remaining after the costs of sale shall be divided equally between the parties.
From this decree comes the instant appeal.
On appeal, James argues that the circuit court erred in its division of the marital and nonmarital property. This court reviews cases involving the division of marital property de novo. Beck v. Beck , 2017 Ark. App. 311, 521 S.W.3d 543. With respect to the division of property in a divorce case, we review the circuit court's findings of fact and affirm them unless they are clearly erroneous or against the preponderance of the evidence. Franks v. Franks , 2018 Ark. App. 266, 548 S.W.3d 871. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id.
James's primary point heading is that the circuit court erred by "not dividing all property in the decree and not awarding [James] all of his business property." Under this heading, he raises a number of somewhat disjointed issues. For example, he complains that the circuit court's final decree "does not address property mentioned but not included on [Hope's] Exhibit 2." He does not, however, identify the specific property that he believes is omitted. We therefore cannot conclude, on this bare assertion of error, that the circuit court's findings were clearly erroneous.
James also argues that many of the items listed on the court's exhibit B "are tools clearly used in [his] lawn care and tree service business," such as garden tools, air compressors, tree nippers, and the like. He did not object, however, to the introduction of Hope's exhibit 2 that enumerated these items, and he did not present any evidence at trial whatsoever that these were items he used in his business. The circuit court therefore had no evidence before it that would have supported a contrary conclusion. See, e.g. , Hix v. Hix , 2015 Ark. App. 199, at 12, 458 S.W.3d 743, 749 (refusing to find error in circuit court's conclusion in a child-support case that mother had not artificially inflated her expenses when father presented no evidence of such inflation).
James next contends that the circuit court made no inquiry into Hope's notation of "there is so much more" at the top of her exhibit 2. He asserts that the circuit court was "aware of the additional property" but failed to address it. As noted above, however, James did not object to the introduction of this exhibit, nor did he inquire at trial what this phrase might mean. Essentially, his argument is being made for the first time on appeal, and we therefore decline to consider it. See McCoy v. Robertson , 2018 Ark. App. 279, at 16-17, 550 S.W.3d 33, 42 ("It is well settled the appellate courts will not consider arguments made for the first time on appeal; an appellant is limited by the scope and nature of the objections and arguments presented at trial.") (citing Cox v. Miller , 363 Ark. 54, 210 S.W.3d 842 (2005) ).
Finally, James repeats his argument that the circuit court erred in decreeing certain items, such as garden tools, to be marital property when they were "clearly not for personal use." Once more, James had the opportunity below to challenge Hope's characterization of these specific items of property, but he did not. He may not be heard to do so for the first time on appeal. McCoy, supra.
Affirmed.
Vaught and Murphy, JJ., agree.
The circuit court entered an initial decree of divorce on May 3, 2016, granting Hope's complaint for divorce but reserving jurisdiction of the matter to issue further orders on the division of real and personal property.
We previously ordered supplementation of the addendum because of deficiencies therein. Pilkinton v. Pilkinton , 2018 Ark. App. 475, 2018 WL 4763136. James has remedied those deficiencies, and we now reach the merits of his appeal.
Hope explained that in April 2015, while she was at work, James and some of his friends loaded up a couple of U-Haul trailers with belongings from inside the house and from a trailer on the property.
The court's "Exhibit A" was virtually identical to Hope's exhibit 1, listing the equipment purchased for the business.
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RITA W. GRUBER, Chief Judge
Larry Hamilton appeals from the Pulaski County Circuit Court's denial of his challenges to the summons and complaint in this trust lawsuit. We hold that the circuit court did not abuse its discretion in denying his motions, and we reject Mr. Hamilton's interpretation of the relevant rules of civil procedure. Accordingly, we affirm.
We set forth the relevant facts of this case in our opinion ordering rebriefing- In re Matter of the Hamilton Living Trust , 2018 Ark. App. 415, 2018 WL 4473503 ( Hamilton I )-but we restate them for convenience here. Margaret and Frank Hamilton created the Hamilton Living Trust, dated September 22, 2003 (the "Trust"), and Bank of the Ozarks (the "Trustee") became the successor trustee of the Trust after their deaths. Larry Hamilton and his sister, Susan Cossey, are qualified beneficiaries of the Trust. The Trustee initiated this lawsuit because Mr. Hamilton had been living in a home owned by the Trust located at 207 Beckwood Drive in Little Rock without the Trustee's authority or consent. Despite the Trustee's request for Mr. Hamilton to vacate the property, he refused to leave. So on March 31, 2016, the Trustee filed a "Complaint for Declaration of Rights" with respect to administration of the Trust pursuant to Ark. Code Ann. § 28-73-201(c) (Repl. 2013). The caption on the complaint is "In the Matter of the Hamilton Living Trust Dated September 22, 2003. " Mr. Hamilton and Ms. Cossey were named in the complaint as qualified beneficiaries of the Trust. The Trustee attached a deed showing ownership of the Beckwood Drive residence in the Trust and alleged that Mr. Hamilton was living in the residence despite its oral and written request to vacate the property. The Trustee sought a declaratory judgment from the court that Mr. Hamilton was not entitled to reside or otherwise occupy the property, that the Trustee was entitled to take reasonable steps to remove him and any other person occupying the property, and that Mr. Hamilton vacate the property immediately. The Trustee also alleged, upon information and belief, that Mr. Hamilton intended to sell the Trust's personal property located at the Beckwood Drive residence and asked the court for a temporary restraining order or a preliminary injunction to prevent Mr. Hamilton from residing in or otherwise occupying the property.
On May 4, 2016, a process server served Mr. Hamilton with a copy of a summons and the complaint. Along with a timely answer, Mr. Hamilton filed a "Motion for Declaration of Insufficiency of Process and Insufficiency of Service of Process," asserting that the summons was defective because it did not contain the name of the party bringing the action or list Susan Cossey as required by Rule 4(b) of the Arkansas Rules of Civil Procedure. Although Mr. Hamilton did not dispute that he was correctly identified on the summons, he argued that his summons was defective because it failed to name Ms. Cossey and to identify the Bank of the Ozarks, and thus, the court did not have personal jurisdiction over him. He requested the court to declare the process and service invalid and void.
The circuit court held a hearing on August 8, 2016, and ruled from the bench that the summons complied with Rule 4(b) of the Arkansas Rules of Civil Procedure and that service was proper, reasoning as follows:
[T]he whole purpose of the summons is to let the parties be put on notice. It is clear from the record that even on the return by the process server and by the answer that was filed in response to the summons and the complaint that the complaint was served. That the complaint does name everyone that the common sense application here is to put the party on proper notice and that was done. On the basis of whether or not "In the Matter of" is left off that would render summons invalid. I think it would be an absurd result and require some herniated stretching by the Court.... And I believe when you look at the return of service by the process server that is filed with the Court which I assume you have reviewed. It indicates everything that was attached and even the summons refers to the fact that the complaint, et cetera. So, the summons contains every reference, everything necessary, and even refers the party being served to the additional documents that are part of that particular service. For all those reasons I find that service was proper.
On August 22, 2016, the court entered an order denying Mr. Hamilton's motion "[f]or the reasons set forth by the Court on the record at the hearing."
On September 21, 2016, Mr. Hamilton filed a motion to dismiss, arguing that the complaint failed to comply with Rule 10(a) of the Arkansas Rules of Civil Procedure because the caption does not contain the names of the parties-that is, the Bank of the Ozarks, Mr. Hamilton, and Ms. Cossey. The court held a hearing on November 28, 2016, on the Trustee's preliminary injunction, where Mr. Hamilton also made arguments in support of his motion to dismiss. At the hearing, the court said that Mr. Hamilton's motion was merely a "rehash" of his earlier motion, that he appeared to be "barking up basically the same tree" but referring to the caption on the complaint rather than on the summons, and that the court had already ruled on it. In an order entered on December 9, 2016, the court denied the motion "for the reasons set forth by the Court on the record at the hearing."
The court held a final hearing on the merits of the complaint in April 2017 and entered an order on May 4, 2017. Mr. Hamilton filed a timely appeal from that order. See Hamilton I (denying appellee's motion to dismiss the appeal). The issues on appeal concern only the court's orders denying Mr. Hamilton's motions.
In cases in which the appellant claims that the circuit court erred in denying a motion to dismiss based on alleged errors in the process of service, our standard of review is whether the circuit court abused its discretion in denying the motion to dismiss. Nobles v. Tumey , 2010 Ark. App. 731, at 9, 379 S.W.3d 639, 646. When there are no disputed issues of fact and the issue presented involves only the correct interpretation of an Arkansas court rule, the issue is a question of law that we review de novo. Dobbs v. Discover Bank , 2012 Ark. App. 678, at 2, 425 S.W.3d 50, 52.
Appellant's first point on appeal is that the summons is defective pursuant to Rule 4(b) of the Arkansas Rules of Civil Procedure because the caption does not contain the parties' names but rather states "Hamilton Living Trust" and because the summons fails to contain the Trustee's name, "Bank of the Ozarks." We turn first to Rule 4(b), which provides that
[t]he summons shall be styled in the name of the court and shall be dated and signed by the clerk; be under the seal of the court; contain the names of the parties ; be directed to the defendant; state the name and address of the plaintiff's attorney, if any, otherwise the address of the plaintiff; and the time within which these rules require the defendant to appear, file a pleading, and defend and shall notify him that in case of his failure to do so, judgment by default may be entered against him for the relief demanded in the complaint.
Ark. R. Civ. P. 4(b) (2018) (emphasis added). We recognize that service of valid process is necessary to give a court jurisdiction over a defendant, Earls v. Harvest Credit Mgmt. VI-B, LLC , 2015 Ark. 175, at 5, 460 S.W.3d 795, 798, and that the summons is a process used "to apprise a defendant that a suit is pending against him and afford him an opportunity to be heard." Solis v. State , 371 Ark. 590, 596, 269 S.W.3d 352, 356 (quoting Nucor Corp. v.Kilman , 358 Ark. 107, 186 S.W.3d 720 (2004) ). The summons that was issued to Mr. Hamilton in this case reads in its entirety as follows:
The Trustee argued below and continues to argue on appeal that it is proper in a trust-administration case to identify the trust in the caption section of the summons. It argues that, like a probate case, there is no traditional plaintiff versus defendant. The Trustee points to the official form of summons adopted by our supreme court for probate cases, on which the caption on the summons provides "In the Matter of __________" rather than a plaintiff versus a defendant. In contrast, Mr. Hamilton argues that a trust case is not a probate case and that probate forms do not govern trust cases. We agree with Mr. Hamilton that a trust case is not a probate case, but we recognize that a trust-administration case, like a probate case, is also not a typical lawsuit involving a plaintiff versus a defendant. The official form of summons provides that it "may be modified as needed in special circumstances." Ark. R. Civ. P. 4, "Form of Summons" (2018). The summons in this case is such a special circumstance.
We turn to Rule 1 of the Arkansas Rules of Civil Procedure, which provides that the Rules of Civil Procedure "govern the procedure ... in all suits or actions of a civil nature with the exceptions stated in Rule 81." Ark. R. Civ. P. 1 (2018). Rule 81(a) excludes the application of the Rules "in those instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure in which event the procedure so specified shall apply." Ark. R. Civ. P. 81(a) (2018). Our supreme court addressed the distinction between an "action" and a "special proceeding" in Coleman v. Coleman , 257 Ark. 404, 407, 520 S.W.2d 239, 241 (1974), defining an action as "an ordinary proceeding in a court of justice by one party against another for the enforcement or protection of a private right or the redress or prevention of a private wrong." The court said in In re Adoption of Martindale , 327 Ark. 685, 689, 940 S.W.2d 491, 492-93 (1997), that all proceedings that are not ordinary proceedings are "special proceedings" created exclusively by statute. For example, adoption proceedings are "special proceedings" without utilizing the label "special proceeding." Id. (citing Poe v. Case , 263 Ark. 488, 490, 565 S.W.2d 612, 613 (1978) ); see also Screeton v. Crumpler , 273 Ark. 167, 617 S.W.2d 847 (1981) (stating that a proceeding to probate a will and a will contest are special proceedings); Nelson v. Cowling , 89 Ark. 334, 116 S.W. 890 (1909) (holding guardianship cases are special proceedings). While we can find no case from our supreme court stating that a trust-administration proceeding is a special "right, remedy or proceeding" under Rule 81, we hold that, at a minimum, such a case qualifies as a "special circumstance" for purposes of the official form of summons. Ark. R. Civ. P. 4, "Form of Summons."
The Trustee in this case filed a "Complaint for Declaration of Rights" specifically stating that it was requesting a declaration of rights pursuant to Ark. Code Ann. § 28-73-201(c) and alleging that the court had jurisdiction over Mr. Hamilton and Ms. Cossey pursuant to Ark. Code Ann. § 28-73-202. Those statutes are found in the Arkansas Trust Code and provide as follows:
Ark. Code Ann. § 28-73-201. Role of court in administration of trust.
(a) A court may intervene in the administration of a trust to the extent its jurisdiction is invoked by an interested person or as provided by law.
(b) A trust is not subject to continuing judicial supervision unless ordered by the court.
(c) A judicial proceeding involving a trust may relate to any matter involving the trust's administration, including a request for instructions and an action to declare rights.
Ark. Code Ann. § 28-73-201 (Repl. 2012) (emphasis added).
Ark. Code Ann. § 28-73-202. Jurisdiction over trustee and beneficiary.
(a) By accepting the trusteeship of a trust having its principal place of administration in this state or by moving the principal place of administration to this state, the trustee submits personally to the jurisdiction of a court of this state regarding any matter involving the trust.
(b) With respect to their interests in the trust, the beneficiaries of a trust having its principal place of administration in this state are subject to the jurisdiction of the courts of this state regarding any matter involving the trust. By accepting a distribution from such a trust, the recipient submits personally to the jurisdiction of a court of this state regarding any matter involving the trust.
(c) This section does not preclude other methods of obtaining jurisdiction over a trustee, beneficiary, or other person receiving property from the trust.
Ark. Code Ann. § 28-73-202 (emphasis added).
A trustee is a representative and does not file a lawsuit to redress a wrong or protect a right for its own interest. A trustee acts to protect the interests of the beneficiaries, to manage the trust property, and to carry out the terms and purposes of the trust. See Restatement (Third) of Trusts § 70 (2007). Moreover, the trustee may be replaced by another person or entity, as occurred here. A trustee, as a representative, is entitled to seek instructions whenever he or she has reasonable doubt regarding any matter relating to administration of the trust. Taylor v. Woods , 102 Ark. App. 92, 106, 282 S.W.3d 285, 295 (2008) (citing Ark. Baptist State Convention v. Bd. of Trs. , 209 Ark. 236, 189 S.W.2d 913 (1945) ). The Trustee did exactly that in this case, specifically pursuing this right under Ark. Code Ann. § 28-73-201. Moreover, Ark. Code Ann. § 28-73-202(b) provides that the court has jurisdiction over the beneficiaries of the trust for these proceedings.
In this case, the summons contained the name of the trust and was directed to Mr. Hamilton. In no way did the form of the summons fail to apprise Mr. Hamilton of the pendency of the suit and afford him an opportunity to be heard. See Nucor Corp. , 358 Ark. at 123, 186 S.W.3d at 730. Indeed, he does not dispute that he received the summons and complaint; he filed a timely answer. His argument is that the summons was defective because it failed to contain the "names of the parties"-that is, it failed to name Bank of the Ozarks. However, "Bank of the Ozarks" was not a "party." Bank of the Ozarks was the acting trustee at the time the request for instructions was filed. The Trustee filed a complaint and had a summons issued in the name of the Trust as Ark. Code Ann. § 28-73-201 gives it the right to do. We decline to interpret Rule 4(b) in a manner that "leads to absurd consequences" by holding the summons was defective for failing to name the acting trustee as a party under these circumstances. Solis , 371 Ark. at 597, 269 S.W.3d at 357. Accordingly, we hold that the summons in this case qualified as a special circumstance and that the circuit court did not abuse its discretion in denying Mr. Hamilton's motion to declare the service and process void and invalid.
For his second point on appeal, Mr. Hamilton contends that the court abused its discretion in denying his motion to dismiss because the complaint failed to comply with Rule 10(a) of the Arkansas Rules of Civil Procedure, specifically arguing that the caption does not contain the names of the parties. For the reasons set forth above, we hold that the circuit court did not abuse its discretion in denying his motion to dismiss.
Affirmed.
Hixson and Brown, JJ., agree.
Bank of the Ozarks is no longer the trustee of the Trust. On March 7, 2018, the Pulaski County Circuit Court entered an order releasing and discharging Bank of the Ozarks as trustee and appointing a new trustee. This occurred after the appeal in this case had already been filed.
Ms. Cossey was also served with a copy of a summons and complaint, but she did not answer or otherwise appear.
While not applicable to this case, we note that subsection (k) has been added to Ark. R. Civ. P. 4. It provides for a substantial-compliance standard when the defendant received actual notice of the complaint and filed a timely answer. Ark. R. Civ. P. 4(k) (2019). The reporter's notes state that a strict-compliance standard in non-default situations is "at odds with the guiding principle of Rule 4-ensuring due process by giving adequate notice of the suit and an opportunity to respond before a judgment is entered." Ark. R. Civ. P. 4(k) addition to rprt's notes, 2019 amend. (subdiv. (k) ). | [
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MIKE MURPHY, Judge
Appellant Donna Bennett is the personal representative of the estate of Leon Bennett. Leon Bennett was killed when the boom of a crane broke, fell, and struck him while he was working on a construction site. Leon's estate brought a wrongful-death suit against Graves & Associates, the general contractor for the construction project. Graves moved for summary judgment, which was granted, and Bennett appealed. We agree with Bennett that summary judgment was inappropriate. Specifically, we hold that the circuit court erred when it concluded that Graves owed no duty in tort to Leon in the circumstances this case presents, and we reverse and remand.
According to the complaint, Leon worked for Mobley Contractors, Inc. Mobley was a subcontractor hired by Graves to construct a bridge as part of a project for the Arkansas Highway and Transportation Department (now Arkansas Department of Transportation) (ADT) and for which Graves was the prime contractor. Mobley's task required crane work. On the date of the accident, Leon was working below the boom of a Mobley crane helping stage a concrete pile for use in the construction of the bridge. The Occupational Safety and Health Administration (OSHA) report indicated that some soil had settled under one of the crane's tracks and tilted the crane approximately ten inches, or three degrees, out of level. When the operator lifted the concrete pile into position, the boom became side loaded, with the center of the load about seven feet off the center of the boom. The boom sheared, broke, fell on Leon, and killed him.
After litigation ensued, Graves filed a third-party complaint against Mobley asserting that Mobley had overseen the crane operations and safety and had contracted to indemnify and hold Graves harmless for any claims arising out of Mobley's work on the job site. Graves and Bennett then filed competing motions for summary judgment, in part on whether Graves owed the deceased any duty of care. Graves argued that contractors have no duty to protect employees of subcontractors from "risks inherent in the jobs they are hired to perform" and thus could not be liable for Leon's death as a matter of tort law because Graves owed no duty to Leon. The circuit court granted Graves's motion for summary judgment in its entirety and denied Bennett's motion for summary judgment. It dismissed Bennett's complaint and Graves's third-party complaint. Bennett now appeals, arguing that Graves owed a duty of care to Leon because it assumed such a duty in its contract with the ADT.
Summary judgment is to be granted by a circuit court only when there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Shook v. Love's Travel Stops & Country Stores, Inc. , 2017 Ark. App. 666, 536 S.W.3d 635. Because the underlying cause of action is based in negligence, the existence of a duty of care is crucial. Under Arkansas law, to prevail on a claim of negligence, the plaintiff must prove that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach was the proximate cause of the plaintiff's injuries. Id. Because the question of what duty is owed is one of law, we review it de novo. Id. If the court finds that no duty of care is owed, the negligence count is decided as a matter of law. Id.
When a prime contractor has hired an independent contractor to perform work, the prime contractor has a duty to exercise ordinary care and to warn if there are any unusually hazardous conditions existing that might affect the welfare of the employees. Constr. Advisors, Inc. v. Sherrell , 275 Ark. 183, 628 S.W.2d 309 (1982). In cases such as the one before us, when there is no demonstration of an exercise of actual control or violation of the duty to warn by the one engaging an independent contractor to perform work, we must turn to the contract to see if the prime contractor or owner retained the right of control or supervision and thus assumed an additional duty of care toward employees of the subcontractors doing the work. See, e.g. , Williams v. Nucor-Yamato Steel Co. , 318 Ark. 452, 454-55, 886 S.W.2d 586, 587 (1994).
Construction Advisors , supra , and Williams , supra , are illustrative. In Construction Advisors , the appellants contracted with Baxter-Travenol Laboratories to build a plant. Construction Advisors, acting as either the prime or the general contractor, agreed to hire all contractors and subcontractors to do the work, agreed to have all supervisory responsibility over the work, and assumed "the specific duty of seeing that there was compliance with all safety laws and regulations." Constr. Advisors , 275 Ark. at 184, 628 S.W.2d at 310. Charles Sherrell, a subcontractor's employee, was hurt doing construction work and sued Construction Advisors, which argued it owed no duty to Sherrell because the subcontractor had agreed to comply with all safety codes. Rejecting the general contractor's attempt to shift all potential tort liability to the subcontractor as a matter of law, our supreme court wrote:
Here, Baxter-Travenol entered into a contract with Construction Advisors by which Construction Advisors undertook to supervise the construction and see that there was compliance with all safety laws and regulations. The safety codes are for the benefit of workers like Charles Sherrell and those workers were the third-party beneficiaries of the contract. Construction Advisors was liable to any worker injured as a result of its negligent failure to perform its contract. The fact that the subcontractor also agreed to comply with the safety codes does not absolve the prime contractor of liability.
Id. at 188, 628 S.W.2d at 312.
Compare this with Williams . There, Cache Valley Electric Company (a subcontractor) had been hired to do electrical work in the construction of a Nucor mill. During construction, Williams, an electrician for Cache Valley, died from electrocution while he was attempting to ground a fence near an electrical substation. 318 Ark. at 453, 886 S.W.2d at 586. Williams's personal representative brought a wrongful-death action against Nucor, and Nucor moved for summary judgment. The circuit court ruled in Nucor's favor because, in its contract with Cache Valley, Nucor retained no control over the work or authority to supervise the employees doing it. It was important to our supreme court that "the contract appear[ed] to have been drafted carefully to assure that all control and supervision other than priorities of projects remained with Cache and not with Nucor." Id. at 456, 886 S.W.2d at 588. In affirming, our supreme court wrote that
[i]t is not enough that [the employer] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be a retention of a right of supervision that the contractor is not entirely free to do the work his own way.
Id. at 455-56, 886 S.W.2d at 587 (citing Restatement (Second) of Torts § 414 cmt. C (1965) ).
On appeal, Bennett argues that Graves assumed a duty of care to employees of its subcontractors in the contract it had with the ADT. That contract incorporated standard specifications for highway construction and contained provisions that imposed duties on Graves to "comply with applicable Federal, State, and local laws governing safety" and to "provide safeguards ... and take any other action necessary to protect the life and health of employees on the project and the safety of the public ... in connection with the performance of the work covered by the Contract." Graves was required to "keep fully informed of all Federal and State laws, local laws, ordinances, and regulations" and "at all times observe and comply with all such laws, ordinances, regulations, quarantines, orders, and decrees." Consistent with these duties and to facilitate fulfilling them, Graves was required to employ "a competent superintendent or supervisor" who had "full authority to direct performance of the work in accordance with the contract requirements and is in charge of all construction operations (regardless of who performs the work)." Graves was to be "responsible for compliance by any subcontractor or lower tier subcontractor with these Required Contract Provisions."
Given these sweeping contractual provisions, we agree with Bennett that by this contract, Graves assumed liability to any worker injured because of its alleged negligent failure to perform its contract.
Graves argues that one section of the contract between it and the ADT warrants particular attention: section 107.14, which provides that
[i]t is specifically agreed between the parties executing the contract that it is not intended by any of the provisions of any part of the contract to create [in] the public or any member thereof a third party beneficiary thereunder, or to authorize anyone not a party to the contract to maintain a suit for personal injuries or property damage pursuant to the terms or provisions of the contract.
Graves contends that this provision insulates it from any tort liability owed to the subcontractors' employees. We disagree; as in Construction Advisors , the duty issue does not turn solely on who the beneficiaries are and what duties might be owed to them specifically but what duties are imposed on, or assumed by, a prime contractor. Here, Graves contracted to comply with safety laws, provide safeguards, and protect the health and life of employees. It also retained a right of supervision. This imposed a duty in tort on Graves.
Graves next argues that the contract between it and the ADT does not control this case. Graves asserts that the contract to analyze is the one between it and Mobley. We are not persuaded for two reasons. First, because the contract between Graves and Mobley contained many of the same provisions as the one between Graves and the ADT regarding control of the job site and safety; and second, because our case law has not limited its review to just the contracts between the prime contractor and the subcontractor. See, e.g. , Constr. Advisors , supra ;
Muskogee Bridge v. Stansell , 311 Ark. 113, 842 S.W.2d 15 (1992) (holding that a prime contractor had assumed a duty of care to the public through its contract with the Arkansas Highway Department despite the dangerous condition having been created by a subcontractor).
Graves asserts that we should not consider Muskogee Bridge persuasive authority. Graves contends that the critical difference between the current case and Muskogee Bridge is that in Muskogee Bridge , it was a member of the public who was injured and not a subcontractor's employee. Graves argues that a prime contractor is not liable for injuries sustained by subcontractor employees from "obvious hazards which are an integral part of the work the contractor was hired to perform." Graves's general recitation of the law is correct. See, e.g. , Jackson v. Petit Jean Elec. Coop. , 270 Ark. 506, 606 S.W.2d 66 (1980) (holding that an employer was not liable when an electrician was electrocuted and injured because electrocution is an obvious hazard integral to the job of electrical work). However, the current case does not fit into this framework for two reasons. First, as we have recited, the contract between Graves and the ADT specifically contemplates Graves's providing safeguards and taking actions to protect the life and health of employees on the project; and second, a crane arm shearing and falling on someone is not an obvious hazard integral to the job of building bridges. Cf. id.
Finally, Graves makes the following arguments in support of affirming: (1) it did not fail to provide any necessary safeguards or safety devices that caused or contributed to the accident and (2) it did not violate the specific OSHA regulations that apply to crane operations. These arguments, however, concern issues of proximate cause and breach and are thus more appropriate for a jury than for summary judgment. See, e.g. , Stacks v. Ark. Power & Light Co. , 299 Ark. 136, 771 S.W.2d 754 (1989). These arguments also overlook the main point that Graves can and did assume additional liability in its contract with the ADT. For these reasons we reverse and remand.
Reversed and remanded.
Abramson and Harrison, JJ., agree.
The horizontal arm supporting the hoist.
Later, an operator stated the manufacturer allows the crane to operate up to .9 degrees out of level.
Cranes are designed to lift loads centered under the hoist. Side loading occurs when a crane is attempting to lift any load that is not located directly under the hoist.
Usage note: the terms "prime contractor" and "general contractor" in this opinion are interchangeable and mean "[s]omeone who contracts for the completion of an entire project, including purchasing all materials, hiring and paying subcontractors, and coordinating all the work." Black's Law Dictionary 400 (10th ed. 2014).
In Williams , the contract the court reviewed was the one between the prime contractor and the subcontractor. In Construction Advisors , supra , and in Muskogee Bridge , infra , the contracts the courts looked to for guidance were ones between the prime contractor and the project owner/contractee. | [
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BART F. VIRDEN, Judge
Roger Pleasant, James Hinton, Brian Hinton, and Accident Claim Service, LLC, appeal the Pulaski County Circuit Court's award of $ 115,200 in attorney's fees and $ 6,247.47 in costs for the State's successful claim against appellants for violations of the Arkansas Deceptive Trade Practices Act (ADTPA). We affirm.
I. Relevant Facts
A Pulaski County Circuit Court jury found that Roger Pleasant violated the ADTPA eight times, that James Hinton violated the ADTPA three times, and that Brian Hinton and Accident Claim Service, LLC, were each liable for one violation of the ADTPA. The jury found that, pursuant to Arkansas Code Annotated section 4-88-113(d)(1) (Supp. 2017), Pleasant was vicariously liable for all thirteen violations because he directly or indirectly controlled the other defendants. The circuit court assessed civil penalties of $ 2000 per violation against appellants. Appellants filed a timely notice of appeal, and we affirmed the decision in Pleasant v. McDaniel , 2018 Ark. App. 254, 550 S.W.3d 8.
The State filed a petition for expenses, attorneys' fees, and costs, asserting that it began the formal investigation of the claims against Pleasant and his associates in December 2013 and filed the complaint in June 2014. After extensive discovery and investigation, the jury trial was held from October 4-6, 2016, and the jury reached the verdict set forth above. The State included timekeeping and accounting records and affidavits of the senior attorney general and the assistant attorney general who served as litigation counsel throughout the investigation and the trial. In the affidavit, each attorney listed his or her qualifications, experience, and hourly rate and described the complexity of the litigation. The State claimed costs of $ 6,247.47, senior attorney fees of $ 96,800, and assistant attorney fees of $ 18,400 for a total of $ 121,447.47.
Appellants responded that the State was not entitled to the expenses and costs claimed because it did not prevail on the "predominate issues" and opposing counsel cannot incur fees because they are salaried State employees. Appellants requested more time and filed a second response on December 19, 2016. In the supporting brief, appellants argued that (1) the opposing attorneys are paid by the State; thus, they cannot be awarded attorney's fees; (2) the State claimed over 100 violations of the ADTPA and "the vast majority of the claims were found without merit"; (3) the State forced this case to go to trial, refusing to settle; and (4) the request for fees and costs is unreasonable because the State "grossly inflated" the hours worked, recording ten-hour, twenty-hour, twenty-three-hour, twenty-five-hour, thirty-five-hour, forty-hour, and fifty-hour workdays. In the prayer for relief, appellants stated, "Wherefore, the defendants pray that this motion be deemed good and sufficient and that after due proceedings are had herein that their motion be granted...." (Emphasis added.)
The State responded that (1) the attorney's fees for this case are awarded to the attorney general pursuant to Arkansas Code Annotated section 4-88-113(e) ; (2) the ADTPA does not exclude state-employed attorneys from incurring attorney's fees; (3) the State was not required to settle this matter, the defendants had not made the necessary concessions to settle the case; moreover, the jury found in favor of the State; (4) the recorded hours exceeding twenty-four reflect multiple days' work that was completed on that date, not work done in a single day; and (5) other than this misapprehension of the timekeeping record, appellants had not asserted how the fees were excessive or unreasonable.
The circuit court entered an order on June 29, 2018, awarding $ 121,447.47 in fees and costs pursuant to section 4-88-113(e). On July 20, the circuit court entered an amended judgment and found the following: Roger Pleasant was adjudged liable for eight violations of the ADTPA, James Hinton was adjudged liable for three violations, Brian Hinton was adjudged liable for one violation, and Accident Claim Service, LLC, was adjudged liable for one violation. Roger Pleasant directly or indirectly controlled the other parties, and he knew or should have known about their deceptive practices. Pursuant to section 4-8-113(a), the court assessed civil penalties against all the defendants at $ 2000 per violation and found Pleasant jointly and severally liable for all thirteen violations and assessed $ 26,000 in penalties. The court held that State was entitled to expenses, attorney's fees, and costs pursuant to section 4-88-113(e), and "based on the submissions of Plaintiff's counsel and Defendants' responses thereto, the court awards the State $ 6,247.47 in expenses and $ 115,200 in attorneys' fees." Appellants filed a timely notice of appeal.
II. Discussion
A. Reasonableness of the Attorney's-Fees Award
Our general rule relating to attorney's fees is well established, and it is that attorney's fees are not allowed except when expressly provided for by statute. Hanners v. Giant Oil Co. of Ark., Inc. , 373 Ark. 418, 284 S.W.3d 468 (2008). An award of attorney's fees will not be set aside absent an abuse of discretion. Id. While courts should be guided by recognized factors in determining reasonableness of attorney's fees, there is no fixed formula to be used and an award of attorney's fees is a matter for sound discretion of the circuit court. State Farm Mut. Auto. Ins. Co. v. Brown , 48 Ark. App. 136, 892 S.W.2d 519 (1995).
First, we address appellants' argument that the circuit court erred because the State's fee request is unreasonable. Specifically, appellants assert that opposing counsel recorded workdays exceeding twenty-four hours. We disagree, and we affirm.
Arkansas has long followed the "American Rule" that attorney's fees are not chargeable as costs in litigation unless specifically permitted by statute or rule. Gill v. Transcriptions, Inc. , 319 Ark. 485, 892 S.W.2d 258 (1995). Pursuant to Arkansas Code Annotated section 4-88-113(e) the attorney general "shall be entitled to all expenses reasonably incurred in the investigation and prosecution of suits, including, but not limited to, expenses for expert witnesses, to be paid by the defendant when judgment is rendered for the State, and, in addition, shall recover attorney's fees and costs." The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. City of Little Rock v. Carpenter , 374 Ark. 511, 516, 288 S.W.3d 647, 651 (2008).
Appellants concede that section 4-8-113(a) allows the Attorney General to recover reasonable attorney fees; however, they argue that the attorney general blatantly lied when it reported several days' work exceeding twenty-four hours. The State responds, as it did below, that the practice of the attorney general is to record the cumulative hours regarding certain work on the day the work was completed, and we find no error in the circuit court's acceptance of the State's explanation. The circuit court's award of attorney's fees, costs, and expenses comports with the language of the statute.
B. Other Issues
The appellants make several other arguments regarding the circuit court's award of attorney's fees; however, all the issues raised are meritless, and we discuss them here.
Appellants argue that the State was required to provide proof of certain relevant factors regarding the reasonableness of attorney's fees listed in Chrisco v. Sun Industries, Inc. , 304 Ark. 227, 800 S.W.2d 717 (1990). However, because appellants did not raise the issue to the circuit court, they have waived any argument concerning the application of the Chrisco factors to this case. Arguments raised for the first time on appeal will not be considered. Burke v. Strange , 335 Ark. 328, 983 S.W.2d 389 (1998). If the record does not reflect that the argument, or any similar argument, was made to the circuit court, we will not reach the merits of the argument on appeal. Id. We do not address appellants' new or unsupported arguments.
In addition to the argument regarding the Chrisco factors, appellants assert for the first time that section 4-88-113(a) does not provide for costs such as depositions, mediation, and questionnaires; thus, this issue is also not properly before this court. Appellants also contend that the circuit court erred by not granting a hearing on attorney's fees. In fact, nothing in the record indicates that appellants requested a hearing. Appellants claim that the phrase in their response to the State's petition for attorney's fees "that after due proceedings are had herein that their motion be granted" constitutes a request for a hearing. It does not. Furthermore, the style of the filing states only that it is a "response" to the State's petition, and nothing in the pleading indicates that the respondent requests a hearing. Arkansas Rule of Civil Procedure 78(c) provides that "[u]nless a hearing is requested by counsel or is ordered by the court a hearing will be deemed waived and the court may act upon the matter without further notice after the time for reply has expired." Appellants waived the right to request a hearing, and we have no circuit court ruling to review. Appellants' argument is meritless. See Buckingham v. Gochnauer , 2017 Ark. App. 660, 536 S.W.3d 155.
Appellants argue on appeal that the circuit court failed to make the required findings of fact and conclusions of law. Appellants did not request additional findings on the ruling from the circuit court, and they made no objection below to the court's order; thus, we do not consider this argument on appeal. See Burke , supra. Moreover, appellants' contention that the circuit court made no findings of fact is incorrect. The reporter's notes accompanying Arkansas Rule of Civil Procedure 54 provide that findings regarding fee awards "will be quite brief in most cases." Ark. R. Civ. P. 54(e) rep. n. 1992 amend. In its order, the circuit court referred to the State's petition and the affidavit attached to it addressing both attorney's experience and ability, the time and labor required, the results obtained, the complexity of the issues, and the fee customarily charged.
One argument that appellant did raise to the circuit court that they appeal to this court is that because the State did not prevail on a majority of its claims, attorney's fees are inappropriate. Appellants fail to cite to authority in support of this argument. Appellants cite Thomas v. Olson , 364 Ark. 444, 220 S.W.3d 627 (2005), in which our supreme court held that because all of appellant's claims were dismissed, she was not a prevailing party entitled to attorney's fees. Thomas is distinguishable from the instant case because as we stated above, the State prevailed on many of the ADTPA claims. Appellants offer no other authority to support their argument, and arguments made without citation to authority or convincing argument will not be addressed on appeal. MDH Builders, Inc. v. Nabholz Constr. Corp. , 70 Ark. App. 284, 292, 17 S.W.3d 97, 103 (2000).
Last, appellants assert that the fees awarded are excessive, and this court could modify the award "to a reasonable amount." Appellants did not offer the circuit court or this court any evidence of what a reasonable fee might be or otherwise explain how the court might determine the matter. We will not develop an issue for a party at the appellate level. Alexander v. McEwen , 367 Ark. 241, 239 S.W.3d 519 (2006).
The circuit court's award of attorney's fees, costs, and expenses comports with section 4-88-113(e), and we affirm.
Affirmed.
Gladwin and Whiteaker, JJ., agree. | [
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N. MARK KLAPPENBACH, Judge
This is an interlocutory appeal concerning the denial of a motion to compel arbitration. Appellants are Hickory Heights Health and Rehab, LLC; Central Arkansas Nursing Centers, Inc.; Nursing Consultants, Inc. d/b/a Professional Nursing and Rehabilitation Services; Tina Lynette Beard, individually and as nursing home administrator for Hickory Heights Health and Rehab, LLC; Michael S. Morton; and John Doe Defendants 1-10 (collectively "Hickory Heights"). Appellee is Mabel Keller Cook ("Mabel"), an elderly woman who was a resident for a few months in 2015 at a Hickory Heights skilled-nursing facility while she recovered from a fractured hip. In 2017, Mabel filed a lawsuit in circuit court against Hickory Heights, and Hickory Heights filed a motion to compel her causes of action to be heard in arbitration, which the trial court denied. Hickory Heights appeals the denial of its motion. We affirm.
We begin with a more expansive view of the undisputed facts prior to our legal analysis. Mabel had a durable power of attorney that she executed in February 2014 appointing Charles A. Cook to act as her attorney-in-fact. In June 2015, Mabel's daughter Ethel Cook signed an Admission Agreement and an Arbitration Agreement as the "Responsible Party" upon Mabel's admission into the Hickory Heights facility.
The Arbitration Agreement recited that it was "an addendum to and part of the Admission Agreement" and "a condition of admission" that "governs the resolution of claims." The Arbitration Agreement set forth that "[t]he Resident and/or Responsible Party and the Facility shall be collectively referred to as the 'Parties.' " The terms "Resident and/or Responsible Party" are used throughout both documents to define rights and responsibilities among the parties. The Arbitration Agreement recited that "any and all claims, disputes, and controversies ... shall be resolved exclusively by binding arbitration and not by a lawsuit or resort to court process." The Admission Agreement begins as follows:
This Admission Agreement includes the terms and conditions agreed by____________, the undersigned resident, Ethel Cook, your Responsible Party, and Hickory Heights Health & Rehab the Nursing Facility ("Facility"), in your request for the admission of Mabel Cook (Resident Name) to the Facility for medical, nursing, and personal care.
Both the Admission Agreement and the Arbitration Agreement contain a definition of "Responsible Party" as follows:
Your Responsible Party is your legal guardian, if one has been appointed, your attorney-in-fact, if you have executed a power of attorney, or some other individual or family member who agrees to assist the Facility in providing for your health, care and maintenance.
The Arbitration Agreement and the Admission Agreement provide signature lines for the "Resident," the "Responsible Party," and the "Facility Representative." Ethel signed the Arbitration Agreement listing her relationship to Mabel as "daughter," and a Hickory Heights representative signed, but Mabel did not sign. Notably, at the end of the Arbitration Agreement just below the signature lines is the following language:
____ (Check if applicable): A copy of my guardianship papers, durable power of attorney or other documentation has been provided to the Facility and is attached.
This space was left blank.
The Admission Agreement further defined a "Responsible Party" to include "a person who manages, uses, controls, or otherwise has legal access to Resident's income or resources that legally may be used to pay Resident's share of cost or other charges not paid by the Arkansas Medicaid Program or any other source." Ethel signed her name as the "Responsible Party" on the Admission Agreement, and a Hickory Heights representative signed as well, but Mabel did not sign this document's signature line for the "Resident."
In May 2017, Mabel filed a lawsuit against Hickory Heights, claiming that during her approximately three months' stay while she recovered from a broken hip, she was sexually assaulted in the facility. Mabel's complaint asserted negligence, medical negligence, and breach-of-contract theories against Hickory Heights. Hickory Heights responded to the lawsuit by filing a motion to compel arbitration based on the documents signed by Ethel. Hickory Heights argued (1) that Mabel's causes of action fell within the ambit of the arbitration provision and (2) that although Mabel did not sign the documents, Ethel did so and bound her mother as the third-party beneficiary of those contracts. Mabel opposed the motion, arguing that Ethel did not have Mabel's power of attorney; that Ethel signed only in an attempt to be Mabel's representative but lacked authority to bind her mother; and that Ethel did not sign in her individual capacity so that the third-party-beneficiary doctrine did not apply. The trial court summarily denied the motion in a one-page order without explaining its reasoning. Hickory Heights appeals, asserting that the trial court erred because the third-party-beneficiary doctrine mandates that Mabel's causes of action be resolved in arbitration.
We review a trial court's order denying a motion to compel arbitration de novo on the record.
Courtyard Gardens Health & Rehab., LLC v. Quarles , 2013 Ark. 228, 428 S.W.3d 437. Arbitration is simply a matter of contract between parties. Id. Whether a dispute should be submitted to arbitration is a matter of contract construction, and we look to the language of the contract that contains the agreement to arbitrate and apply state-law principles. Id. The same rules of construction and interpretation apply to arbitration agreements as apply to agreements generally; thus, we will seek to give effect to the intent of the parties as evidenced by the arbitration agreement itself. Id. Finally, the construction and legal effect of an agreement to arbitrate are to be determined by this court as a matter of law. Id. In deciding whether to grant a motion to compel arbitration, two threshold questions must be answered. First, is there a valid agreement to arbitrate between the parties? Second, if such an agreement exists, does the dispute fall within its scope? GGNSC Holdings, LLC v. Lamb By & Through Williams , 2016 Ark. 101, 487 S.W.3d 348. In answering these questions, doubts about arbitrability must be resolved in favor of arbitration. Id. We are also guided by the legal principle that contractual agreements are construed against the drafter. Carter v. Four Seasons Funding Corp. , 351 Ark. 637, 97 S.W.3d 387 (2003).
Undoubtedly, Mabel's lawsuit falls within the scope of the arbitration agreement. The pointed question in the present appeal is whether Mabel is bound by the arbitration agreement by virtue of Ethel's having signed the agreement. Mabel contends that Ethel signed in solely a representative capacity for her but lacked the authority to act as a representative on her behalf. Mabel contends, therefore, that she is not bound by the arbitration agreement. Hickory Heights contends that Ethel signed the arbitration agreement in her individual capacity, not in a representative capacity, and that Mabel was the clearly intended beneficiary of those contracts. Hickory Heights contends this means that Mabel is a third-party beneficiary of the contracts and is bound to their terms requiring arbitration.
Generally, the terms of an arbitration contract do not apply to those who are not parties to the contract. Bigge Crane & Rigging Co. v. Entergy Ark., Inc. , 2015 Ark. 58, 457 S.W.3d 265 ; Amer. Ins. Co. v. Cazort , 316 Ark. 314, 871 S.W.2d 575 (1994). In Arkansas, the presumption is that parties contract only for themselves; thus, a contract will not be construed as having been made for the benefit of a third party unless it clearly appears that such was the intention of the parties. Bigge Crane , supra ; Elsner v. Farmers Ins. Group, Inc. , 364 Ark. 393, 220 S.W.3d 633 (2005).
In order to apply the third-party-beneficiary doctrine under Arkansas law, there must be an underlying valid agreement between two parties, and there must be evidence of a clear intention to benefit a third party. See Progressive Eldercare Servs.-Chicot, Inc. v. Long , 2014 Ark. App. 661, 449 S.W.3d 324. The salient question here is whether Ethel signed the documents in her individual capacity or in a representative capacity. We hold that there is ambiguity in this contract on the issue of whether Ethel signed these documents in an attempt to be a representative on behalf of Mabel or in her individual capacity. With that ambiguity, we construe the agreement against the drafter and conclude that Ethel attempted to act in a representative capacity. Lacking authority to so act, there is no valid underlying contract to enforce against Mabel.
Although these documents recite that Ethel signed as "Responsible Party" and not as the resident's "Representative," the definition of "Responsible Party" in these documents can reasonably be construed to indicate that such authority is being asserted:
Your Responsible Party is your legal guardian, if one has been appointed, your attorney-in-fact, if you have executed a power of attorney, or some other individual or family member who agrees to assist the Facility in providing for your health, care and maintenance.
The Arbitration Agreement requests documentation to support the asserted authority on which the person claims to be the "Responsible Party." Mabel did not have a legal guardian, but she did have a durable power of attorney vested in Charles A. Cook. Mr. Cook was the person who possessed legal authority and who was available to be the "Responsible Party." Ethel did not possess legal authority to bind her mother in a representative capacity, which is an undisputed fact.
Other cases on this topic reflect a consistent line of reasoning that family members do not possess the authority to bind the resident when that person attempts to act in a representative capacity. In Progressive Eldercare Servs.-Chicot, Inc. v. Long , 2014 Ark. App. 661, 449 S.W.3d 324, Mrs. Long signed admission and arbitration documents at the time her husband was admitted to Progressive's facility. When a lawsuit was filed regarding the care Mr. Long received, Progressive filed a motion to compel arbitration. The trial court found that the documents had been clearly designed to be signed by the "Patient or Legal Representative," and Progressive had argued that Mrs. Long was her husband's "representative." In Progressive's appeal, our court agreed that the documents were signed by Mrs. Long in a representative capacity, that Mrs. Long lacked the authority to execute these documents on her husband's behalf, and that consequently there was no binding arbitration agreement. Id. at 2, 449 S.W.3d at 325. Because there was an attempt to execute in a representative capacity, the third-party beneficiary-doctrine did not have to be addressed as there was no basis to hold that Mrs. Long signed the forms in an individual capacity.
In Courtyard Gardens Health & Rehabilitation, LLC v. Quarles , 2013 Ark. 228, 428 S.W.3d 437, our supreme court held that when Mr. Quarles signed admission and arbitration agreements on his mother's entry into a nursing home, he lacked authority as "Responsible Party" to be considered her agent. The supreme court held that Mr. Quarles, lacking such authority, could not bind his mother to arbitration with the nursing home. In the present appeal, there is no dispute that Ethel, also signing as a "Responsible Party" for her mother, lacked the authority to act as her mother's agent or representative in order to bind her mother to arbitration.
In Broadway Health & Rehab, LLC v. Roberts , 2017 Ark. App. 284, 524 S.W.3d 407, Ms. Roberts signed admission documents for her mother's admission into a nursing facility. The documents required the signature of the resident or the "Resident Representative," and it required a check mark to indicate the basis of authority: a power of attorney, an appointed guardian, or "other." The documents indicated that the first two authorities were to be supported by an attached document and that the "other" authority was to be accompanied by an explanation. Ms. Roberts checked the box marked "other" and listed herself as "daughter." The facility appealed the denial of its motion to compel arbitration. Our court held that Ms. Roberts lacked authority to bind her mother to the arbitration agreement in an attempt to act as her mother's agent. Our court further held that the third-party-beneficiary doctrine was inapplicable:
Two elements are necessary to apply the third-party-beneficiary doctrine: there must be an underlying valid agreement between two parties and there must be evidence of a clear intention to benefit a third party. Progressive Eldercare Servs.-Chicot, Inc. v. Long , 2014 Ark. App. 661, at 4, 449 S.W.3d 324, 327. The first element, a valid agreement between Ms. Roberts and Broadway, has not been shown to exist. The only evidence is the agreement itself, in which Ms. Roberts clearly indicated that she did not sign in her individual capacity. Ms. King was listed as the resident on the arbitration agreement above Ms. Roberts's signature. Under the request for the basis of Ms. Roberts's authority to sign the document, Ms. Roberts indicated "Daughter." The doctrine does not apply.
Id. at 7, 524 S.W.3d at 412.
In Pine Hills Health & Rehabilitation, LLC v. Talley , 2018 Ark. App. 131, 546 S.W.3d 492, our court held that a daughter could not bind her mother to arbitration by signing documents as "Responsible Party," listing herself as "daughter," prior to her mother's admission into the Pine Hills facility. There, the daughter did not check the space to indicate that "[a] copy of my guardianship papers, durable power of attorney or other documentation, has been provided to the Facility and is attached." Our court upheld the trial court's conclusion that the daughter did not intend to sign the documents in an individual capacity, noting that the agreement stated that it was between the facility and "the Resident or the Responsible Party." Our court held that there was consequently no valid agreement between the daughter and the facility; thus, the third-party-beneficiary doctrine did not apply.
In the present appeal, the parties to the arbitration agreement are recited to be the facility, and "The Resident and/or Responsible Party." Because there is no clear indication anywhere in this agreement to demonstrate whether Ethel was signing in an individual capacity or in a representative capacity, we hold that there is ambiguity in the agreement that must be construed against the drafter of the agreement.
"[O]ur laws require that if uncertainty or ambiguity exists within the terms of a contract, or if it is susceptible to more than one reasonable construction, then the courts must construe the contract most strongly against the party who drafted it." Price v. Willbanks , 2009 Ark. App. 849, at 6, 374 S.W.3d 28, 32. Therefore, we construe this contract most strongly against Hickory Heights and affirm the trial court's refusal to compel arbitration.
Affirmed.
GLADWIN and BROWN, JJ., agree.
There is no indication in the record that Mabel was incapacitated in any way at the time she was admitted into Hickory Heights.
"Findings of fact and conclusions of law are unnecessary on decisions of motions under these rules." Ark. R. Civ. P. 52(a). Although it may be the better practice for the circuit court to make findings on motions, the court's failure to do so is not error. Peterson v. Davis , 2012 Ark. App. 166, 2012 WL 559935. Unless the contrary can be shown, we presume that the circuit court acted properly and made such findings of fact as were necessary to support its judgment. Curry v. Pope Cty. Equalization Bd. , 2011 Ark. 408, 385 S.W.3d 130 ; Wyatt v. Wyatt , 2018 Ark. App. 177, 545 S.W.3d 796.
Hickory Heights refers us to federal district court opinions that interpret a similar contract more in line with its position. See , e.g. , Northport Health Servs. of Ark., LLC v. Cmty. First Tr. Co. , 2014 WL 217893 (W.D. Ark. Jan. 21, 2014) ; Northport Health Servs. of Ark., LLC v. Rutherford , 2009 WL 10673107 (W.D. Ark. March 17, 2009). Decisions of the federal courts, however, are not binding on this court. See Dickinson v. SunTrust Nat'l Mortg. Inc. , 2014 Ark. 513, 451 S.W.3d 576 ; Larry Hobbs Farm Equip., Inc. v. CNH Am. , LLC , 375 Ark. 379, 291 S.W.3d 190 (2009) ; Sheridan v. State , 368 Ark. 510, 247 S.W.3d 481 (2007). | [
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PHILLIP T. WHITEAKER, Judge
This appeal arises out of a dispute over the dissolution of a partnership between the appellant, Patricia Fudge, and the appellee, Eddie Parks. Fudge, in essence, claimed that Parks failed to properly account for partnership assets, misappropriated partnership funds and assets, breached his fiduciary duties, and improperly kept the proceeds from the sale of her personal vehicle. The Baxter County Circuit Court entered an order granting Fudge a judgment against Parks for the sale of her vehicle but denying Fudge relief on all other claims. On direct appeal, Fudge appeals the amount of damages awarded by the court as well as the court's denial of her other claims. On cross-appeal, Parks appeals the judgment entered against him. We affirm on both direct and cross-appeal.
In 2006, the parties entered into a partnership agreement for a cattle operation. Fudge was to contribute financially to the venture, while Parks, who was familiar with cattle farming, was to manage the operation. The relationship ultimately soured, and in 2015, the partnership was dissolved. Both Fudge and Parks signed a dissolution agreement that stated that the agreement constituted a "full and complete settlement of all issues, rights, claims or demands that each has against the other concerning the partnership known as 2 Bar P Farms" and that each party would completely release each other from "any claim, demand or liability derived from the operation of 2 Bar P Farms."
Despite signing the dissolution agreement, Fudge filed a complaint against Parks in the Baxter County Circuit Court alleging that Parks had fraudulently concealed some of the assets of the partnership prior to the signing of the dissolution agreement and that she had discovered his misappropriation of partnership property and assets after the dissolution agreement had been executed. She requested a reimbursement of at least $ 15,000. She further alleged that Parks had prevented the return of several items of her personal property and had sold her vintage 1967 Chevrolet Chevelle without her knowledge. She requested the return of those items as well as damages for the value of the car she alleged was worth $ 38,000. Finally, she requested reimbursement for the out-of-pocket expenses she incurred in conducting the investigation into Parks's fraudulent actions and misdeeds and her costs and attorney's fees.
Parks answered the complaint, denying the allegations. He further asserted that Fudge's claims were barred by the dissolution agreement, that her claims were frivolous and brought for the purposes of harassment, and that he was entitled to attorney's fees and costs.
Fudge subsequently amended her complaint to include allegations that Parks had received funds from the 2012 Livestock Forage Disaster Program and the 2012 Noninsured Crop Disaster Assistance Program that she maintained should have been paid to the partnership. As to this claim, she requested $ 11,380 in compensatory damages and $ 25,000 in punitive damages.
Parks again answered the complaint, denying the allegations and alleging that her claims were barred by the dissolution agreement.
The circuit court conducted a bench trial at which both Fudge and Parks presented their evidence. The evidence focused on four areas of disagreement: (1) disputed checks made on the partnership account; (2) the receipt of USDA funds; (3) the sale of cattle at dissolution; and (4) the sale of the 1967 Chevrolet Chevelle. After the hearing, the trial court entered an order denying Fudge's claims with respect to the disputed checks but granting her claim as to the sale of the Chevelle. On that claim, the court ordered Parks to pay Fudge $ 16,000. An amended order resolved the remaining issues by denying Fudge's claims as to the USDA funds and her claims of fraud and punitive damages. She appeals the trial court's denial of her claims, and Parks cross-appeals the judgment entered against him.
I. Standard of Review
Generally stated, our standard of review following a bench trial is whether the trial court's findings are clearly erroneous or clearly against the preponderance of the evidence. Bohannon v. Robinson , 2014 Ark. 458, 447 S.W.3d 585. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. Disputed facts and determinations of the credibility of witnesses are within the province of the fact-finder. Id.
II. Issues and Arguments on Appeal
The alleged error in this appeal can be divided into four distinct categories: (1) the court's order regarding the disputed checks written by Parks off the partnership account; (2) the court's order regarding USDA funds Parks deposited into his personal, rather than partnership, account; (3) the court's order regarding the sale of partnership cattle; and (4) the court's award of damages for the sale of the 1967 Chevelle.
Regarding the first three issues, Fudge argues that the trial court erred by not requiring Parks to provide a full accounting, including evidence of expenditures and proof of nonappropriation of partnership assets. She contends that as a fiduciary, it was Parks's burden to provide a full accounting of his actions and to prove that his actions did not amount to self-dealing. Accordingly, the court should have compelled Parks to account for misappropriation (i.e., disputed checks and USDA funds) and for the sale of the cattle on dissolution. She contends that the court did not hold Parks to his burden of proof; instead, the court effectively and erroneously resolved all partnership-related issues in the case by reference to the dissolution agreement. She argues that a remand is required for a full partnership accounting.
Concerning the fourth issue, Fudge argues that the trial court erred in not awarding her full damages regarding the sale of the 1967 Chevelle. Parks also challenges the trial court's award of damages with respect to the Chevelle. He contends that he proved an ownership interest in the car and that the court erred in the judgment amount awarded to Fudge.
III. Analysis
A. The Disputed Checks
The circuit court heard evidence related to several disputed checks paid on the partnership account. These included, among others, checks made payable to Parks, his wife, and others for such items as fertilizer, a lawn mower, and firearms. Fudge claimed that these checks were not proper partnership expenditures and that she did not have copies or knowledge of the checks prior to dissolution. In response, Parks testified that most of the disputed checks were either reimbursements for personal expenditures made on behalf of the partnership or were partnership related. Of those that were not partnership related, he claimed he reimbursed the partnership. He also disputed that Fudge had no knowledge of these checks prior to dissolution. He contended that during the partnership, Fudge was the partner who received the banks statements with copies of the canceled checks attached.
The trial court found that Fudge failed in her burden of proving that the disputed transactions were either illegal or improper and that she should be reimbursed for them. The court also found that the dissolution agreement clearly resolved the claims. Fudge claims that Parks, as a fiduciary, owed a duty to account for the transactions and therefore bore the burden of proving that the transactions were not the result self-dealing. Her argument fails in several respects.
First, the trial court was presented with sufficient evidence from which to conclude that Parks did not engage in self-dealing. The court heard conflicting evidence concerning the nature of the checks written, whether the checks pertained to personal or partnership interests, and whether appropriate reimbursements were made. The court weighed the conflicting evidence and found that Fudge had failed to prove that these transactions were improper. It is within the sole province of the fact-finder to weigh credibility and resolve disputed facts. Simmons v. Dixon , 96 Ark. App. 260, 267, 240 S.W.3d 608, 613 (2006). To reverse on this basis would be to require this court to act as a super fact-finder or to second-guess the trial court's credibility determination, which is not our function. Based on the evidence presented, we are not left with a firm conviction that a mistake was made.
More significantly, we note that the disputed checks were written on the partnership account and constitute partnership assets; therefore, absent fraud, they are governed by the provisions of the dissolution agreement. A settlement, accord and satisfaction, or release may be set aside for fraud. See Creswell v. Keith , 233 Ark. 407, 344 S.W.2d 854 (1961) ; Burke v. Downing Co. , 198 Ark. 405, 129 S.W.2d 946 (1939) ; Davenport v. Gray , 157 Ark. 1, 247 S.W. 81 (1923). Fraud must be proved by showing that (1) the defendant made a false, material representation (ordinarily of fact); (2) the defendant had knowledge that the representation was false or the defendant asserted a fact that he or she did not know to be true; (3) the defendant intended for the plaintiff to act on the representation; (4) the plaintiff justifiably relied on the representation; and (5) the plaintiff was damaged as the result of such reliance. See Malakul v. Altech Ark., Inc. , 298 Ark. 246, 766 S.W.2d 433 (1989). Fraud is never presumed but must be affirmatively proved, and the burden of proving it is on the party who alleges it. Ouachita Elec. Coop. Corp. v. Evans-St. Clair , 12 Ark. App. 171, 672 S.W.2d 660 (1984). Thus, the burden was on Fudge to prove that Parks committed fraud. The trial court found that she failed in her burden of proof. That finding is not clearly erroneous.
Here, the trial court specifically found that although Fudge did not actively participate in the day to day activities of the farm, she did receive all the bank statements and financial records pertaining to the business. The court's finding in this regard is supported by the evidence. The bank statements containing the disputed transactions were admitted into evidence. Those bank statements were addressed to Fudge at her mailing address. They contained copies of the canceled checks written on the account. Thus, Fudge knew or should have known of the disputed financial transactions prior to entering into the dissolution agreement. As these documents were readily available to her, there was no fraudulent concealment, and the dissolution agreement stands. While Fudge testified that she never received the statements until after the dissolution agreement was signed and when she requested them from the bank, the trial court was not required to believe her testimony in this regard. For us to find otherwise would result in an improper reweighing of the evidence.
Here, the trial court essentially determined that because Fudge had failed to prove fraud, the dissolution agreement controlled. The parties in this case entered into a dissolution agreement, resolving all claims the parties may have to the partnership and each other. In fact, the parties agreed that the dissolution agreement constituted a "full and complete settlement of all issues, rights, claims or demands that each has against the other concerning the partnership known as 2 Bar P Farms." The dissolution agreement further stated that upon the signing of the agreement, the partnership known as 2 Bar P Farms would fully and completely be dissolved with no assets remaining and that each party would completely release each other from "any claim, demand or liability derived from the operation of 2 Bar P Farms." These disputed checks occurred well before the dissolution of the partnership and the entry of the dissolution agreement. Thus, the court determined that the dissolution agreement, absent more, controlled. We agree and find no error in the court's ruling on this issue.
B. The USDA Funds
Fudge next claims that the trial court erred in failing to find that Parks breached his fiduciary duty by depositing USDA funds into his personal, rather than partnership, account. Like the disputed checks, the court heard conflicting testimony concerning these funds. Parks received two checks, one for $ 7810 from the Livestock Forage Disaster Program and one for $ 3570 from the Noninsured Crop Disaster Assistance Program. He deposited these funds into his own personal account and not into the partnership account. Parks testified that he placed the money in his personal account because (1) he paid the fees out of his personal account and (2) the program was tied to the land, not the cattle, and the partnership did not own the land. Fudge testified that the program funds were related to the number of cattle owned by the partnership, and she denied any knowledge of the payments until after dissolution. The court found Parks's explanation of the USDA program and payments more credible than Fudge's. As stated earlier, disputed facts and determinations of the credibility of witnesses are within the province of the fact-finder. Simmons, supra. Again, the trial court's decision is not clearly erroneous; thus, we find no error in the court's ruling on this issue.
C. The Cattle Sales
Fudge next contends that Parks manipulated the sale of the cattle on dissolution by splitting the herd in half and selling them separately instead of selling the cattle and dividing the proceeds fifty-fifty. By doing this, Fudge claims that it was clear that Parks had engaged in "veiled transactions" and self-dealing with regard to the sale of the cattle. Again, Fudge failed in her burden of proof. Patty Donalee of Gainesville Livestock Auction testified at the hearing about the sale of the cattle from the partnership dissolution. She testified that she only sold cattle for Fudge in October 2014. This sale would have been the sale of Fudge's one-half of the herd upon dissolution. Donalee brought records with her concerning the sale in question. She could have been questioned about the price of cattle obtained upon the sale of Fudge's one-half of the herd and the price of cattle obtained upon the subsequent sale of Parks's one-half of the herd. Neither Parks nor Fudge asked Donalee the price for which the cattle were sold. Although Fudge claims Parks engaged in self-dealing, she failed to offer any evidence that his method of dividing the cattle was in any way improper or resulted in an unfair advantage. Fudge simply failed in her burden of proving fraud, improper dealing, or breach of fiduciary duty. Moreover, once again, the cattle sales occurred prior to the parties' entry into the dissolution agreement. Thus, absent a showing of fraud, the agreement controls, preventing Fudge's claims in this regard. We find no error in the court's ruling on this issue.
D. The 1967 Chevrolet Chevelle
The last disputed item pertains to the proceeds from the sale of a 1967 Chevrolet Chevelle. The Chevelle was purchased in 2010 for $ 18,000, but both parties agree it was not an asset of the partnership. Without dispute, Fudge paid the purchase price out of her personal funds, but Parks was the person who made the purchase. Despite using her own funds to pay the purchase price, Fudge signed the registration as the owner of the vehicle, and the Chevelle was registered and titled to "Eddie Parks or Patricia Fudge." After the purchase, Fudge maintained the title and registration and paid the insurance and taxes. The Chevelle was stored in a garage on Parks's farm.
When the partnership began to unravel, Fudge instructed Parks to sell the Chevelle. Parks claims he sold the vehicle for $ 18,000 and used $ 12,000 of those funds to purchase a "farm truck," deposited $ 4,000 into the partnership account, and gave the remaining $ 2,000 to Fudge. Fudge stated she thought the vehicle sold for $ 18,500 and claimed she never received any money from the sale.
Based on this evidence, the court found that the vehicle had been purchased exclusively with Fudge's private assets; that Parks had no ownership interest in the vehicle; and that Parks had no right to use those funds to purchase a farm truck or to deposit the funds into the partnership account. The court then imposed a constructive trust on the $ 16,000 not returned to Fudge. Both parties disagree with the trial court's disposition as it relates to the 1967 Chevrolet Chevelle.
Fudge argues that she never received any money for the sale of the Chevelle and disagrees with the court's award of judgment in the amount of $ 16,000. Parks asserts that he was a part owner in the Chevelle and received nothing for his interest. At the very least, he argues that he is entitled to some offset for the amounts placed in the partnership account that was split equally between the parties on dissolution and for which the court did not give him any credit.
Based on the evidence before us, we are not left with a definite and firm conviction that a mistake has been made. We disagree with Fudge's contentions that the trial court erred. There was clearly evidence presented that the vehicle was purchased from Fudge's individual funds, that the vehicle was sold for $ 18,000, and that Parks gave Fudge $ 2,000 of those funds. Although Fudge disputes receiving the $ 2,000, the court weighed the evidence in favor of Parks.
We also disagree with Parks's contentions that the trial court erred. Granted, the Chevelle was titled in the name of both Fudge and Parks. However, the fact that the car was titled in both names is not conclusive of ownership; a certificate of title is only some evidence of ownership, and a vehicle registered to one person may be shown to be owned by another. See Akins v. Pierce , 263 Ark. 15, 563 S.W.2d 406 (1978) ; Robinson v. Martin , 231 Ark. 43, 328 S.W.2d 260 (1959). There was conflicting evidence presented as to whether Fudge intended to gift Parks an ownership interest in the car. The trial court weighed the evidence and resolved the ownership issue in Fudge's favor.
Likewise, we disagree with Parks that the court erred in not awarding any offset in relation to the $ 4,000 from the sale allegedly deposited into the partnership account. We note that Parks failed to provide any documentation of this deposit into the partnership bank accounts. While the court credited his testimony with regard to the $ 2,000 he paid to Fudge, the trial court was not required to credit the rest of his testimony. As the trier of fact, the trial court was entitled to accept or reject all the testimony or any part thereof that it believed to be true or false. Wal-Mart Stores, Inc. v. Thomas , 76 Ark. App. 33, 61 S.W.3d 844 (2001) ; White v. State , 39 Ark. App. 52, 837 S.W.2d 479 (1992). Given the state of the evidence before us and the deference accorded the trial court in determining the credibility of the witnesses and the weight to be given their testimony, we affirm on this point as well.
Affirmed on direct appeal; affirmed on cross-appeal.
Harrison and Murphy, JJ., agree.
The complaint was filed on September 9, 2016, almost eighteen months after the execution of the dissolution agreement.
The court ordered these items to be returned to her, and these items are not a part of this appeal.
There was some discussion that Fudge received more than $ 20,000 for her share of the cattle, but there was no testimony on how much Parks received for his.
The bill of sale showed a lower purchase price of $ 15,000. This was supposedly done to achieve a lower sales tax. | [
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DAVID M. GLOVER, Judge
Anthony Johnson argues he was sentenced as a habitual offender without evidence he had previously been convicted of more than one felony, and the St. Francis County Circuit Court erred in denying his motion to correct an illegal sentence. We affirm.
On April 24, 2012, the State filed a criminal information in the St. Francis County Circuit Court charging Johnson with capital murder, rape, and kidnapping, all Class Y felonies. On February 20, 2014, the parties reached a plea agreement. The State orally amended the information, reducing the charge of capital murder to manslaughter, a Class C felony, with a habitual-offender enhancement; nol prossing the rape charge; and amending the kidnapping charge to false imprisonment in the first degree, a Class C felony. Johnson entered nolo contendere pleas to the offenses of manslaughter, for which he was sentenced to twenty years based upon the habitual-offender enhancement, and false imprisonment, for which he was given a ten-year suspended imposition of sentence.
At the hearing, Johnson's attorney explained to the circuit court the habitual-offender penalty expanded the statutory maximum to twenty years, which would be what the plea agreement called for; counsel also waived arraignment, stated the allegations would not be contested, and stipulated there was sufficient evidence to support a conviction. The circuit court asked if Johnson waived presentation of the evidence, and Johnson's attorney stated they waived both proof and presentation. The circuit court then asked Johnson if he understood that a Class C felony normally carried a sentencing range of no less than three years and no more than ten years, but with the habitual-offender penalty, he could be sentenced to twenty years in prison. Johnson stated he understood. The circuit court then asked Johnson if he understood he had an absolute right to plead not guilty and have a jury trial, in which the State would be required to prove each element of the offense charged beyond a reasonable doubt; Johnson again stated he understood. Johnson told the circuit court he had fully and completely discussed the facts and circumstances with his counsel, and he was fully satisfied with his representation. Johnson then reiterated to the circuit court that he stipulated there was sufficient evidence to convict him and that his attorney had waived presentation of the evidence supporting his guilt. Johnson acknowledged to the circuit court that it was his signature on the "Nolo Contendere Plea Statement"; he had reviewed the document with his attorney; and he understood the information contained in the statement. The State then recommended Johnson be sentenced to twenty years for the offense of manslaughter, with a ten-year suspended imposition of sentence for the offense of false imprisonment to be served after Johnson's release from prison. The circuit court asked Johnson if he heard and understood the sentence, to which he replied yes. The circuit court then asked if the sentencing recommendation was what he thought it would be when he pleaded no contest; Johnson stated that it was. The circuit court proceeded to find Johnson guilty of both manslaughter with an enhanced penalty and false imprisonment, and he was sentenced to twenty years in prison for manslaughter, with a ten-year suspended imposition of sentence for false imprisonment. Johnson was credited with a total of 1095 days for time served, and the circuit court ordered the sentence to run concurrently with a sentence he was currently serving in the state of Indiana. On March 18, 2014, an order was entered reflecting Johnson was sentenced as a habitual offender pursuant to Arkansas Code Annotated section 5-4-501(d) (Supp. 2017) but indicating a criminal-history score of zero. An amended sentencing order was filed on April 22, 2014; this order did not indicate Johnson was sentenced as a habitual offender and still reflected a criminal-history score of zero.
On November 21, 2014, Johnson, acting pro se, filed a document entitled "Petition to Correct Illegal Sentence Pursuant to Ark. Code Ann. § 16-90-111" to correct what he contended was an illegal sentence. He argued he was not sentenced as a habitual offender; therefore, the twenty-year sentence he received for manslaughter is illegal, as the maximum sentence for a Class C felony is ten years.
On December 1, 2015, the circuit court held a hearing on Johnson's motion for new trial and his motion to correct an illegal sentence. The State did not object to Johnson's motion for a new trial, and the circuit court orally granted Johnson's motion for new trial. An order appointing Johnson a public defender was entered on December 9, 2015. On March 4, 2016, Johnson's counsel informed the circuit court he did not believe Johnson wanted a new trial; rather, he wanted his judgment and disposition order to be corrected. On March 10, 2016, Johnson's counsel argued the judgment should be amended to reflect a maximum sentence of 120 months, not 240 months. The State argued Johnson had originally been charged with capital murder; had pleaded nolo contendere to manslaughter; a new trial was granted; Johnson was now being held and awaiting trial on the original charge of capital murder; and therefore, his sentencing arguments were moot because he was going to receive a new trial. It became apparent Johnson did not want a new trial-he just wanted to address the manslaughter sentence.
On November 13, 2017, Johnson filed a pro se motion for a nunc pro tunc order to correct the judgment and commitment order to reflect that the circuit court intended to sentence him to ten years, not twenty, on the offense of manslaughter, as nothing in the record justified an enhanced habitual-offender penalty. Johnson asserted that the error was inadvertent; the circuit court could sentence him from three to ten years; the circuit court lacked jurisdiction, authority, or discretion to impose a twenty-year sentence for a Class C felony; and the twenty-year sentence was illegal.
At a hearing held on November 30, 2017, Johnson denied committing the crimes and instead accused the former prosecutor of perpetrating the crimes. The circuit judge recused at that time.
Honorable David Laser was assigned to Johnson's case, and a hearing was held on March 12, 2018. The history of the case was set out, and Johnson's counsel admitted that if a person was sentenced as a "small" habitual offender-more than one but fewer than four felonies-the sentencing range for a Class C felony was three to twenty years pursuant to Arkansas Code Annotated section 5-4-501(a)(2)(D). Johnson's counsel pointed out that the original order had one habitual-offender box checked but not the other, and the amended sentencing order had neither habitual-offender box checked. Johnson's counsel agreed that if Johnson was sentenced as a habitual offender, the twenty-year sentence was within the range of sentencing. However, counsel argued the criminal information listed no habitual-offender enhancements, and Johnson had not been apprised of the habitual-offender enhancement because it was not in the criminal information and because of the discrepancy in the amended order.
The circuit court noted that the February 20, 2014 plea stated Johnson was entering a nolo contendere plea for manslaughter, a Class C felony, and the word "habitual" was entered in parentheses beside that notation. The prosecutor noted both the plea statement and the docket sheet waived proof and presentation of the evidence, which he argued also waived presentation of proof as to the habitual-offender enhancement, and Johnson freely and voluntarily waived presentation of proof and evidence and agreed to be sentenced as a habitual offender on a Class C felony, for which he could be sentenced to twenty years in prison. The circuit court noted that when the plea was entered, Johnson was serving time in Indiana on another felony. The State agreed there were issues with the sentencing order, as the habitual-offender box was not checked on the amended sentencing order, but argued the sentencing order only needed to be corrected to reflect the plea agreement to which Johnson had agreed-being sentenced as a habitual offender on a Class C felony. When asked about the notation of "habitual" in parentheses after the offense of manslaughter on the signed plea statement, Johnson testified that the word "habitual" was not on the plea agreement when he signed it, and it was only inserted after he signed the plea. However, he agreed the plea agreement contained a handwritten statement on the second page, "Manslaughter, 20 years, with credit for 1,095 days served, concurrent with any sentence Defendant is serving in Indiana." Johnson testified that while the circuit court had explained the sentence to him, habitual offender was not mentioned, and he was never told he was sentenced as a habitual offender.
The circuit court ruled Johnson was legally sentenced, and there was no question he knew "full well" he was entering a guilty plea to an offense and was prepared to serve a twenty-year sentence, plus the ten-year suspended imposition of sentence. The circuit court denied Johnson's motion to vacate an illegal sentence and held that all remaining motions were moot. The circuit court determined a second amended sentencing order should be entered indicating Johnson was sentenced as a habitual offender under Arkansas Code Annotated section 5-4-501(a). An order was entered on March 21, 2018, denying Johnson's motion to correct an illegal sentence; finding that Johnson had entered a negotiated plea of nolo contendere to the charges of manslaughter and false imprisonment and had pleaded to the manslaughter charge as a habitual offender; determining that docket entries indicated Johnson waived presentation of proof and evidence as to the charges as well as the enhancement of the charges; and providing that a second amended sentencing order was to be entered reflecting Johnson was sentenced as a habitual offender under Arkansas Code Annotated section 5-4-501(a).
On appeal, Johnson argues the circuit court erred in denying his petition to correct an illegal sentence pursuant to Arkansas Code Annotated section 16-90-111 (Repl. 2016). In Henry v. State , 2017 Ark. 28, at 2, 509 S.W.3d 630, 631, our supreme court held:
There is a provision in section 16-90-111 that allows the trial court to correct an illegal sentence at any time because a claim that a sentence is illegal presents an issue of subject-matter jurisdiction. Williams v. State , 2016 Ark. 16, at 2, 479 S.W.3d 544 (per curiam). While the time limitations on filing a petition under section 16-90-111 on the grounds that the sentence was imposed in an illegal manner were superseded by Arkansas Rule of Criminal Procedure 37.2(c) (2015), the portion of section 16-90-111 that provides a means to challenge a sentence at any time on the ground that the sentence is illegal on its face remains in effect. Halfacre v. State , 2015 Ark. 105, 460 S.W.3d 282 (per curiam). For that reason, the trial court had authority to grant relief under the statute if the sentence imposed on Henry in either of the cases was indeed illegal on its face. Id. ; see also Hill v. State , 2013 Ark. 29 [2013 WL 396010] (per curiam).
A sentence is illegal on its face when it exceeds the statutory maximum for the offense for which the defendant was convicted. Latham v. State , 2018 Ark. 44, 2018 WL 897481. The petitioner who seeks relief under section 16-90-111 carries the burden to demonstrate that his or her sentence was illegal. Id. A circuit court's decision to deny relief regarding claims pursuant to Arkansas Code Annotated section 16-90-111 will not be overturned unless that decision is clearly erroneous. Lukach v. State , 2018 Ark. 208, 548 S.W.3d 810. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id.
The enhanced sentence of twenty years for a Class C felony is not illegal if a defendant has previously been convicted of more than one and fewer than four felonies. Ark. Code Ann. § 5-4-501(a)(2)(D). Johnson argues the criminal information contained no habitual-offender allegation; the State attempted to orally amend the information at the plea hearing to include a habitual-offender enhancement; but there was no allegation of the minimum number of prior convictions or that the circuit court had knowledge of any such convictions. However, challenges to the sufficiency of the charging instrument are not jurisdictional and must be raised prior to trial. Tolefree v. State , 2014 Ark. 26, 2014 WL 260990. When a defendant enters a plea of guilty, the plea is his or her trial.
Id. Johnson did not raise this issue prior to trial; therefore, he cannot now challenge the sufficiency of the charging instrument.
Johnson further complains that the circuit court did not require the State to prove or even state affirmatively he had two or more previous convictions. He argues because the record is "completely devoid" of any evidence he had more than one prior felony conviction, the twenty-year sentence for manslaughter was illegal, and the circuit court's denial of his petition to correct the sentence was clearly erroneous.
A review of the 2014 hearing in which Johnson pleaded nolo contendere to the manslaughter charge clearly indicates he waived presentation of such proof. When the prosecutor orally amended the capital-murder charge to manslaughter, the applicability of the sentencing enhancement for the habitual-offender penalty was noted. Johnson's counsel stated the enhancement expanded the statutory maximum penalty for manslaughter to twenty years, which was what the plea agreement called for; his counsel agreed Johnson would plead nolo contendere to the allegations, waive arraignment, and not contest the allegations; further his counsel stipulated there was sufficient evidence for a conviction; and his counsel waived proof and presentation of that evidence. The circuit court then addressed Johnson and engaged him independently in a litany of questions shown in detail above.
In denying Johnson's motion to correct an illegal sentence, the circuit court found he had entered a negotiated plea of nolo contendere to the charges of false imprisonment and manslaughter; had pleaded to the manslaughter charge as a habitual offender; and had waived the presentation of proof and evidence as to the charges to which he was eventually sentenced as well as the enhancement of the charges. A second amended sentencing order was filed, reflecting Johnson was sentenced as a habitual offender on the manslaughter charge to a term of twenty years in prison. Because he expressly waived presentation of proof as to both the charges and the enhancement, the circuit court's denial of Johnson's petition to correct an illegal sentence was not clearly erroneous.
Affirmed.
Gladwin and Vaught, JJ., agree.
In the March 21, 2018 order Johnson brings this appeal from, the circuit court found there was never an order entered granting Johnson a new trial; therefore, a new trial was never legally granted. | [
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JOSEPHINE LINKER HART, Associate Justice
This matter comes before us as an appeal from Jefferson County Circuit Court. Appellant, Alicia Morris, seeks reversal of the circuit court's March 10, 2017 order, which denied her motion to terminate a guardianship held by Jannelle Clark, who is Morris's niece, over J.M., who is Morris's minor child. The Arkansas Court of Appeals affirmed, and we then granted review. We vacate the opinion from the Arkansas Court of Appeals, and reverse and remand for an order consistent with this opinion.
I. Background
Before any pleadings or other documents related to this action were filed, on July 21, 2007, Morris signed what is titled a "Legal Document," that purported to confer a guardianship over J.M., an infant at the time, to either Collie Bland, who is Morris's sister, or Clark. Morris's statement in the document provides that she was presently "not stable," and that she that she believed Bland, her sister, was the one who would have guardianship over J.M. However, it is Clark's signature that appears on the line in the document for "adoptive parent."
On February 12, 2009, Clark filed a petition for guardianship over J.M., alleging that Morris had numerous criminal charges pending. On February 17, 2009, the circuit court held a hearing and entered an emergency order appointing Clark as J.M.'s temporary guardian. On April 27, 2009, Morris filed a pro se response stating that she was not relinquishing her parental rights and stating that she only intended for Bland to be J.M.'s guardian, not Clark.
On May 11, 2009, the circuit court held a hearing on Clark's petition at which Clark appeared with counsel and Morris, who had a pending felony charge of second-degree battery, appeared pro se. At the hearing, Morris notified the circuit court that she was contesting the petition. The circuit court found that Clark was qualified and that it was in J.M.'s best interests that Clark be appointed as guardian. The court awarded Morris visitation every other weekend with the option to the mother and guardian to agree to additional visitation. The court did not make any explicit finding to the effect that Morris was unfit to parent.
A little over seven years later, on August 18, 2016, Morris filed a Motion for Emergency and Ex Parte Order for Temporary Custody, Motion for Permanent Change of Custody and to Terminate Guardianship, for Contempt and to Abate or Dismiss Petition for Child Support. Alicia alleged, inter alia, that the felonies had been nolle prossed, she had no pending felony charges, and that Clark had willfully denied visitation. Clark responded generally denying the allegations. The circuit court set the matter for hearing on October 26, 2016.
It would be fair to say that the circuit court was presented with "mixed facts" at the October 26, 2016 hearing. In its order, the circuit court made a number of findings that were either favorable to Morris or unfavorable to Clark. For example, the circuit court found that "[t]he natural mother showed that the conditions that made it necessary for this guardianship no longer exist. The felony charge was nolle prossed. It would appear that the natural mother's personal life is stable." The circuit court also found that Clark had moved the child to Tennessee without permission and had the child using the last name of Clark's then-boyfriend, a convicted felon, both of which "caused (the) circuit court great concern in continuing custody with the guardian." The circuit court also noted, "[t]his court did not find the natural mother to be unfit in its order of May 27, 2009."
However, the circuit court also made several findings that were either unfavorable to Morris or favorable to Clark. The circuit court found that "[t]he natural mother failed to exercise regular visitation with JM through no fault of the guardian." Furthermore, notwithstanding its aforementioned finding that Morris's "personal life is stable," the circuit court noted that "[f]rom the proof, this court concluded that the natural mother is experiencing residential instability." The circuit court also found that "[t]he relationship between the mother and child has been extremely limited for a long time through no fault of the guardian," and that "[t]he minor wishes to live with his guardian." Finally, the circuit court found that "[t]he guardian has shown that it is in the welfare and best interest of the child that this guardianship continues."
Ultimately, the circuit court denied Morris's petition to terminate the guardianship. This appeal followed.
II. Applicable Legal Authority
Our assessment of this matter begins with a natural parent's constitutional right to raise his or her child without undue interference from government. The Supreme Court of the United States addressed this issue in Troxel v. Granville , 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). In Troxel , Eight Justices agreed that the Fourteenth Amendment protects a parent's right to raise his or her child without undue interference from government. Five Justices agreed that a fit parent is accorded a presumption that the parent acts in the child's best interests. Four Justices agreed that "special factors" must "justify" the state's intrusion, and that one of those factors is a finding of parental unfitness. This court has specifically embraced the presumption that a fit parent acts in his or her child's best interests. Linder v. Linder , 348 Ark. 322, 72 S.W.3d 841 (2002).
Morris filed her petition to terminate the guardianship pursuant to Ark. Code Ann. § 28-65-401(b)(3) (Repl. 2017) (the Termination Statute). The Termination Statute provides in relevant part as follows:
(b) A guardianship may be terminated by court order after such notice as the court may require:
...
(3) If, for any other reason, the guardianship is no longer necessary or for the best interest of the ward.
Ark. Code Ann. § 28-65-401(b)(3) (Repl. 2017) (emphasis added). The Termination Statute's plain language contemplates that one can petition a circuit court to terminate an existing guardianship in either of two separate circumstances: when the guardianship is "no longer necessary" or when termination of the guardianship is "for the best interest of the ward." The Termination Statute's plain language also contemplates that the circuit court retains some level of discretion in these cases; i.e., the guardianship "may be terminated by court order" under either of the statute's two prongs. This court's construction of the Termination Statute has evolved in recent years as litigants have raised new arguments concerning this provision's proper interpretation and its place alongside United States Supreme Court jurisprudence.
In Graham v. Matheny , 2009 Ark. 481, 346 S.W.3d 273, this court held that one can petition to terminate an existing guardianship when either the guardianship is no longer necessary or termination is in the best interest of the ward, per the Termination Statute. However, this court added that when the ward is a minor child, "[w]hat is in the best interest of the child must always be examined," without regard for which "prong" of the statute the petitioner relies upon. 2009 Ark. 481, 14, 346 S.W.3d 273, 281 (overruled by Matter of Guardianship of W.L. , 2015 Ark. 289, 467 S.W.3d 129 ) (emphasis added).
Then, in In re Guardianship of S.H. , 2012 Ark. 245, 409 S.W.3d 307 ( In re S.H. I ), this court was presented with the issue of whether a fit parent who consented to a guardianship had the burden to prove, under Graham , both prongs of the statutory test in order for the court to terminate the guardianship. We reasoned that "parents who have not been found unfit do not relinquish their fundamental liberty interest in raising their children by consenting to a guardianship." 2012 Ark. 245, at 14, 409 S.W.3d at 316. Accordingly, we adopted a two-step, burden-shifting procedure for when a fit parent who consented to a guardianship later moves to terminate that guardianship:
A natural parent who has not been deemed unfit is entitled to the presumption that he or she is acting in the child's best interest, even after consenting to a guardianship. Therefore, when a natural parent, who has not been deemed unfit and who has consented to a guardianship, files a petition to terminate that guardianship, that parent must put forth evidence that the guardianship is no longer necessary. Once the court is satisfied that the conditions necessitating the guardianship have been removed, the guardians shoulder the burden of rebutting the presumption that termination is in the child's best interest.
Id. at 15, 409 S.W.3d at 316. We remanded the case for the circuit court to reevaluate the case applying this procedure.
When that case returned to us after remand, we clarified the test in two ways. See In re Guardianship of S.H. , 2015 Ark. 75, 455 S.W.3d 313 ( In re S.H. II ). First, we said that a fit parent meets the burden of showing that a guardianship is "no longer necessary" under the statute simply by revoking consent to the guardianship. Id. at 14, 455 S.W.3d at 322. Second, we said that the guardian can rebut this presumption by proving best interests by clear and convincing evidence. Id.
Then in In re W.L. , 2015 Ark. 289, 467 S.W.3d 129, we did away with the burden-shifting/best interest analysis, overruling Graham and returning to the statute's plain language, which states that "a guardianship may be terminated by court order ... [i]f, for any other reason the guardianship is no longer necessary or for the best interest of the ward." Ark. Code Ann. § 28-65-401(b)(3) (Repl. 2017) (emphasis added). In reaching that decision, this court was concerned with the friction between the burden-shifting/best interest analysis and the United States Supreme Court's holdings in Troxel :
Parents have a fundamental right to raise their children. We will not lightly intrude on this fundamental right. We have already said that a guardianship is no longer necessary once a fit parent revokes an earlier-given consent. This is because a fit parent is presumed to be acting in the child's best interest. By petitioning to terminate the guardianship and revoking consent, the fit parent, who has the child's best interest at heart, informs the court that the guardianship is no longer necessary. That is sufficient to meet the statutory requirement where the court "may" terminate the guardianship. In other words, a guardianship is no longer necessary "per the statute" when a fit parent revokes consent. The fit parent does not have to prove anything else. The statute does contain another method for the guardianship to be terminated, that is, by showing it is no longer in the ward's best interest. However, given that the legislature has created a disjunctive test, the parent can move to terminate under either prong.
This ruling is consistent with the statutory text and a fit parent's fundamental liberty interest in the care, control, and custody of his or her child. Furthermore, the burden of proof does not and cannot shift to the guardians when a guardianship is terminated based on a fit parent's revocation of consent. Simply put, a fit parent's decision regarding his or her children is conclusive. See Troxel, 530 U.S. at 68-69, 120 S.Ct. 2054 ("[S]o long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children.").
2015 Ark. 289, at 6-8, 467 S.W.3d at 132-34. Additionally, in a footnote, the W.L. majority addressed a concern raised by the dissent; the dissent took issue with the majority's holding that "a fit parent's decision ... is conclusive," reasoning that this holding was inconsistent with the discretion afforded by the statute to a circuit court when determining whether to terminate a guardianship (See Ark. Code Ann. § 28-65-401(b)(3) (Repl. 2017) ("A guardianship may be terminated by court order ... if ... the guardianship is no longer necessary or for the best interest of the ward.") (emphasis added)). The majority wrote,
The dissent points out that the statute leaves the trial court with discretion even when the conditions necessitating guardianship no longer exist. This is a correct statement of the law; however, there were no other facts in front of the court that could overcome David's fundamental right to raise his child.
In re W.L. , 2015 Ark. 289, 15, 467 S.W.3d 129, 137 at n.6. Finally, this court most recently addressed the Termination Statute in Donley v. Donley , 2016 Ark. 243, 493 S.W.3d 762. There, this court cited favorably to the rationale set forth in W.L. , and then remanded "to the circuit court to enter an order applying the correct standard." Id. at 12, 493 S.W.3d at 769.
Acknowledging that our jurisprudence would benefit from further development on the Termination Statute analysis, we granted review in the present matter and now hold as follows.
A natural parent who has not been declared unfit is presumed to act in his or her own child's best interest. Troxel , supra. This presumption is applicable when such a parent seeks to terminate an existing guardianship over his or her minor child pursuant to the Termination Statute. In this situation, parent's petition to terminate the guardianship need only "inform the court that the guardianship is no longer necessary." W.L. , supra. This is an otherwise fit parent's only burden of proof; once that lack of necessity is communicated to the circuit court by a fit parent, the circuit court ordinarily would terminate the guardianship. W.L. , supra. The language contained in the Termination Statute does provide the circuit court some discretion in determining whether the guardianship should be terminated, but where the petitioner is a fit parent and the ward is the fit parent's minor child, the guardianship should only remain in place due to some circumstance "that could overcome (the petitioner's) fundamental right to raise (his or her) child." W.L. , supra.
We hold that a circuit court's determination that it would be in a minor ward's best interests for a guardianship to remain in place, standing alone, is insufficient to defeat a fit parent's substantive Due Process interest in raising his or her own child. There is a constitutional presumption that a fit parent acts in his or her child's best interests, so where the parent has not previously been found unfit, weighing "best interests" at the outset of the termination inquiry is inappropriate. The mere fact that a child may have more or better opportunities with another family cannot be enough to keep that child away from an otherwise fit parent.
None of this, however, should be construed to prohibit a guardian in such cases from actually raising and contesting the issue of the natural parent's "fitness" when the natural parent petitions to terminate the guardianship. Otherwise fit parents are presumed to be acting in their child's best interests, so the guardianship should only remain in place over the natural parent's wishes where the guardian defeats this presumption. To defeat this presumption, the guardian bears the burden of establishing that the natural parent is not fit. Importantly, whether a natural parent is "fit" is a very different question from whether it would be in a child's "best interest" to live with a natural parent or another family. Per the Troxel plurality, "fitness" asks whether a natural parent can "adequately care for his or her children." Troxel , supra. If the natural parent is found to be unfit, then the natural parent is not entitled to the constitutional presumption discussed in Troxel and Linder , and the circuit court accordingly has greater discretion to determine whether to terminate the guardianship based upon the specific circumstances of a given case, including the best interests of the ward. ,
Accordingly, when a parent who has not previously been determined to be unfit petitions for termination of an existing guardianship over his or her minor child, circuit courts ordinarily should only decline to terminate the guardianship where the guardian contests the parent's fitness and establishes that the parent is presently unfit. Where an otherwise fit natural parent seeks to terminate an existing guardianship and the scenario described above is not implicated, the circuit court should dispose of the guardianship routinely.
III. Application
Here, the circuit court's order denying Morris's petition indicates that the trial court followed the burden-shifting/best interest analysis that this court disposed of in W.L. The circuit court's order notes that while "[t]he natural mother showed that the conditions that made it necessary for this guardianship no longer exist," the guardianship should nonetheless continue because "[t]he guardian has shown that it is in the welfare and best interest of the child that this guardianship continues." Additionally, the circuit court's order states that it did not find Morris unfit in its prior order of May 27, 2009. The circuit court's order does not make any finding that Morris was unfit at the time of the October 26, 2017 termination hearing. Absent a finding of unfitness, then it was error for the circuit court to decline to terminate the guardianship by engaging in a best-interest analysis. As Morris argues, the Troxel plurality opined that some level of "special weight" must be afforded to a fit parent's preference as to what should happen to his or her child, and we agree with that proposition. Accordingly, we reverse and remand this matter to the circuit court for an order consistent with this opinion.
Reversed and remanded; Court of Appeals' opinion vacated.
By the terms of the statute, even where a parent petitioning to terminate an existing guardianship over his or her minor ward is found to be unfit, there could still be cause to terminate the guardianship if the parent establishes that termination would nonetheless be "for the best interests of the ward."
We are mindful that the Termination Statute now reads differently due to modifications implemented by the General Assembly in 2017. See Ark. Code Ann. § 28-65-401(b)(3). This opinion concerns the analysis of Ark. Code Ann. § 28-65-401(b)(3) (Repl. 2017), which was the law at the time of the October 26, 2016 hearing.
As stated above, our decision in W.L. did not foreclose the possibility that some extraordinary circumstance could potentially overcome even a fit parent's constitutional right to parent his or her child. W.L. , 2015 Ark. 289, at 18 n.6, 467 S.W.3d at 138 n.6. It suffices to say that no such circumstance was demonstrated here. | [
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ROBERT J. GLADWIN, Judge
Appellant Marleny Reyes-Ramos appeals the Pulaski County Circuit Court's May 16, 2018 order terminating her parental rights to her three children. On appeal, appellant argues that the circuit court erred by finding that appellee Arkansas Department of Human Services (DHS) offered her appropriate family services and that there was little likelihood of successful reunification. We affirm.
I. Procedural History and Facts
DHS filed a petition for ex parte emergency custody and dependency-neglect on May 1, 2017, alleging that three children were at substantial risk of serious harm as a result of abuse, neglect, and parental unfitness. The attached affidavit by DHS agent Tiffany Robinson avowed that appellant and Rolando Juarez lived together with Juarez's child, C.J. (born 9/26/2014), and appellant's two children, J.M. (born 5/13/2013) and D.R. (born 6/08/2011). Appellant and Juarez had taken C.J. to Arkansas Children's Hospital for vaccinations on April 26, 2017, when the medical staff noticed that he was covered in bruises. It was believed that C.J. had a ruptured gallbladder, but doctors discovered the gallbladder was still intact during emergency surgery. Doctors found a rib fracture, pancreas bruises, and a duodenal hematoma (an indication of trauma). The child also had several external bruises to his face, back, and bottom at different healing stages. Juarez told the doctor that C.J. had fallen into a table causing the bruise to his upper eye. Juarez also said that C.J. had vomited five times that day before going to the hospital. Dr. Hollingsworth told investigators that the injuries were consistent with those caused by blunt force. She also said that injuries to the abdomen, bladder, and the rib fracture were all fresh injuries. Detective Matt Harrellson and the hospital social worker, Trevor Arnette, informed Robinson of the above facts and alleged that Juarez had been arrested because he became aggressive when being interviewed by them. DHS removed all three children from appellant and Juarez's custody due to serious physical abuse and Juarez's arrest, and the ex parte order was obtained on May 1, 2017, wherein it was found that DHS had made reasonable efforts to prevent removal of the children from their home.
After a hearing on May 8, 2017, an order was filed finding that probable cause continued to exist that the children should be protected and remain in DHS custody. The court found that it would be harmful to return appellant's two children to her because she had not been able to show that she could protect them from Juarez, who had allegedly harmed his son, C.J. The circuit court ordered that appellant would receive supervised visitation with her two children at the DHS office three times each week, two hours each visit. Appellant was ordered to cooperate with DHS; notify DHS of any change in residence, phone number, place or status of employment; notify DHS if transportation assistance was needed for visitation or any services; and attend all medical appointments for the children when notified by DHS.
All three children were adjudicated dependent-neglected by order filed July 3, 2017. The court made this finding by "more than a preponderance of the evidence" due to abuse and parental unfitness by Juarez and neglect and parental unfitness by appellant. The court also recited expert testimony regarding C.J.'s extensive internal injuries from blunt force trauma and a doctor's diagnosis of child physical abuse. The doctor testified that the parents' explanations for the child's injuries were not plausible. The court found that Juarez and appellant were not credible in their testimony about how C.J. had been injured. The court also recited testimony from D.R. that Juarez disciplined by hitting them with a closed fist and a belt and that she had told appellant when the abuse was happening. Detective Harrellson testified that he had charged Juarez with first-degree domestic battery after conducting his investigation, and the court found that Juarez had inflicted the injuries on C.J. The court specifically held that its prior finding that DHS had made reasonable efforts still stood.
A July 21, 2017 disposition order held that the children were to remain in DHS custody. The goal of the case was reunification of D.R. and J.M. with appellant, with a concurrent goal of permanent custody with a fit and willing relative. The goal for C.J. was to obtain a permanent custodian, including permanent custody with a fit and willing relative, with a concurrent goal of adoption. Visitation orders remained the same, and the court also allowed appellant to visit C.J. under supervision for two hours each week. In addition, appellant was ordered to have a psychological evaluation and follow the recommendations; undergo individual/family counseling as recommended; take medications as prescribed; refrain from using illegal drugs or alcohol; complete parenting classes; obtain and maintain safe, stable housing and stable employment or income; maintain a clean safe home for herself and the children; demonstrate the ability to protect the children and keep them safe; and not discuss the case with the children unless in therapy. The court also found that DHS had made reasonable efforts to provide services to the family to prevent removal and safely reunify the family.
On October 4, 2017, the circuit court consolidated the instant case with case No. JN 2017-960, wherein J.R., born to appellant and Juarez on August 4, 2017, was included in the pending dependency-neglect case. By the same order, J.R. was adjudicated dependent-neglected, and appellant received supervised visitation with J.R. three times a week for two hours each visit. All orders remained the same, including that DHS had made reasonable efforts.
The case was reviewed at a hearing held October 5, and by order filed October 20, the court found that the children should remain in DHS custody because appellant could not protect them. The court's order states, "The Court believes [appellant] is fearful of Mr. Juarez, who controls the household and everything in it." The court found that appellant was not credible and that she and Juarez had violated the court's order by having contact with the children on September 27, 2017. The goals remained the same for the children. The court found that DHS had made reasonable efforts to provide family services for each of the children to achieve the goal of the case.
An order entitled "Review Order on Issue of Whether DHS Has Made Reasonable Efforts Regarding Juveniles' Separation and to Ensure the Juveniles Have Regular Consistent Visitation or Other Ongoing Contact" was filed December 4, 2017, and it reflects that DHS had made reasonable efforts to place the children together, having placed J.R. with D.R. and J.M. and having found no foster home available to accept all four children. Further, the court found that DHS had made reasonable efforts to ensure the children had regular and consistent visitation with each other.
A permanency-planning hearing was held on February 1, 2018, and the February 23 order reflects that the court considered, among other evidence, appellant's psychological evaluation and a treatment summary from HLH Consultants regarding appellant's therapy. The court noted the history of the case; the injuries, both internal and external, discovered when C.J. was taken for vaccinations ; the expert testimony that the child had been subjected to blunt-force trauma to multiple surfaces of his body wherever there were injuries, and severe blunt-force trauma or traumas to his abdomen; the injuries had been described as those seen as a result of a car accident rather than from children playing rough; the diagnosis of child physical abuse; the explanations given by the parents were not plausible; the doctors were found to be credible; appellant was found not credible; and D.R.'s interview wherein she stated that Juarez disciplined the children by hitting them with a closed fist and a belt and that she had told her mother. At the close of the hearing, appellant's counsel requested more time be given appellant to participate in therapy with J.M. "before the goals here are so drastically changed." However, the court set adoption as the permanency goal for the children.
The court found that appellant was not a fit parent for her three children because she could not protect them and keep them safe. The court noted both the testimony of therapist Kim White regarding the progress made by appellant and Juarez in couple's therapy and Dr. George DeRoeck's psychological evaluation of appellant and his testimony that he was optimistic that the parents could improve and that reunification was a viable goal. The court found that appellant had substantially complied with the case plan and court orders. However, the court noted that it did not
understand how [appellant] and Mr. Juarez can have a safety plan and make so much progress regarding that safety plan when they have never acknowledged why the juveniles were removed from the home and placed in DHS custody. Becoming a fit parent is more than just participating in and completing services. Progress towards remedying the cause of removal cannot be made if there is never an acknowledgment of what happened. Compliance with the case plan and court orders is one thing, but they have not benefitted from the services. Return of the juveniles is not in their best interests and cannot occur in the time frame for the juveniles because [appellant] and Mr. Juarez still maintain the injuries were from an accident. This court has found their explanations not plausible. The court also noted that appellant and Juarez remained married and had moved
into a bigger house a week before the review hearing. Thus, the court found that appellant had made minimal progress toward alleviating or mitigating the causes of the children's removal from the home. The court found that DHS had substantially complied with the case plan and court orders, noting that the permanency-planning court report had been filed late. The court also found that DHS had made reasonable efforts to provide family services.
DHS filed a petition for termination of parental rights on February 28, 2018, and amended it on April 24. The petition alleged three statutory grounds against appellant: (1) child or sibling dependent-neglected due to neglect or abuse that could endanger the life of the child, see Ark. Code Ann. § 9-27-341(b)(3)(B)(vi)(a) (Supp. 2017); (2) other factors arose subsequent to the original petition and, despite the offer of appropriate family services, the parents have manifested the incapacity to remedy those issues, see Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) ; and (3) aggravated circumstances due to assault resulting in serious bodily injury to the child, see Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(2) , (3)(A)-(B)(i) and (iii) .
A termination-of-parental-rights hearing held April 18, 2018, resulted in an order, filed May 16, terminating appellant's parental rights to her three children, D.R., J.M., and J.R., based on two grounds alleged in the petition: (1) other factors or issues arose subsequent to the filing of the original petition and, despite appropriate services, the parent has manifested the incapacity or indifference to remedy those issues or factors; and (2) aggravated circumstances. The circuit court denied appellant's request for a continuance based on her argument that "this case could benefit from more time." Among other testimony, Maggie Martinez, property manager for Spanish Valley Apartments, testified that Juarez rented an apartment in the complex and that appellant, although not on the lease, visited the complex four to five times per week.
The circuit court's order recites a detailed history of the case and testimony submitted at the final hearing regarding C.J.'s internal and external injuries caused by blunt-force trauma. It notes the doctor testified that C.J. had been subjected to physical abuse and that the explanations provided by appellant and Juarez were not plausible given the totality of the injuries. The expert said that if the child had not been brought to the hospital at that time, he could have had additional life-threatening complications. The court found by clear and convincing evidence that it was in the children's best interest to terminate parental rights based on both subsequent factors and aggravated circumstances. The court found that even though appellant had been compliant with the case plan, she had not made significant, measurable progress toward remedying the conditions that caused removal because she still maintained the injuries to the child were from an accident. The termination order states:
From the start of this case, this mother has been less than truthful with the court, DHS, and service providers, and the court still does not find her to be credible. Her actions clearly indicate that she has chosen [Juarez] over her children. The court simply does not believe that she and [Juarez] have separated, and the testimony presented at this hearing by DHS workers and Ms. Martinez, the Property Manager at Spanish Valley Apartments, support that. [Appellant] has not benefitted from any of the services that were offered-she has not demonstrated that she can protect these juveniles and keep them safe, or that she is a fit and appropriate parent who will make decisions that are in the juveniles' best interests.
This appeal timely followed.
II. Standard of Review
We review termination-of-parental-rights cases de novo. Knuckles v. Ark. Dep't of Human Servs. , 2015 Ark. App. 463, at 2, 469 S.W.3d 377, 378. At least one statutory ground must exist, in addition to a finding that it is in the child's best interest to terminate parental rights; these must be proved by clear and convincing evidence. Id. , 469 S.W.3d at 379 (citing Ark. Code Ann. § 9-27-341 (Supp. 2013); M.T. v. Ark. Dep't of Human Servs. , 58 Ark. App. 302, 952 S.W.2d 177 (1997) ). Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Id. , 469 S.W.3d at 379. The appellate inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. , 469 S.W.3d at 379. Credibility determinations are left to the fact-finder, here, the circuit court. Id. , 469 S.W.3d at 379. Only one statutory ground is necessary to terminate parental rights. Sanford v. Ark. Dep't of Human Servs. , 2015 Ark. App. 578, at 11, 474 S.W.3d 503, 510.
Threadgill v. Ark. Dep't of Human Servs. , 2017 Ark. App. 426, at 4-5, 526 S.W.3d 891, 894.
III. Aggravated Circumstances
Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(3)(B) provides as follows:
"Aggravated circumstances" means:
(i) A juvenile has been abandoned, chronically abused, subjected to extreme or repeated cruelty, sexually abused, or a determination has been or is made by a judge that there is little likelihood that services to the family will result in successful reunification[.]
Appellant argues that the circuit court's finding that there would be little likelihood of successful reunification goes against the weight of the expert testimony. She cites both Dr. DeRoeck's testimony that reunification could be successful and J.M.'s therapist's testimony that it would be in his best interest to participate in family therapy with appellant. Appellant's therapist testified to her progress and commitments to the safety plan, and appellant acknowledged that she should have sought medical care sooner. DHS agent Lauren Hill testified that maintaining a home separate from Juarez would be one way to protect the children, and she confirmed that appellant had a separate home even though appellant and Juarez were still in contact with one another. And appellant argues that despite there being no indication that she would not continue to improve, the circuit court found little likelihood of successful reunification because of appellant's lack of acknowledgement of the reasons why DHS took custody of the children. Appellant contends that the circuit court erred by relying on the testimony of the apartment manager that she was staying with Juarez instead of the experts' testimony.
Finally, appellant argues that the circuit court improperly shifted the burden to her to prove that she was a fit parent by stating, "[S]he has not demonstrated that she can protect these juveniles and keep them safe, or that she is a fit and appropriate parent." She contends that the burden is DHS's to prove that she is not fit, citing Choate v. Arkansas Department of Human Services , 2017 Ark. App. 319, 522 S.W.3d 156. However, the instant case is distinguishable from Choate , wherein we reversed the termination on subsequent-factors grounds as to the father because no facts supported subsequent factors for the father; the circuit court simply stated that he had not demonstrated that he was a fit and proper parent. Id. at 17, 522 S.W.3d at 165. This court noted that it is DHS's burden to prove parental unfitness, not a parent's burden to prove that she is fit. Id.
We agree with DHS's contention that sufficient evidence supports the circuit court's finding of aggravated circumstances. A parent's continued inability to protect and care for his or her child and failure to benefit from the services provided demonstrate little likelihood that further services will result in a successful reunification. Bentley v. Ark. Dep't of Human Servs. , 2018 Ark. App. 374, 554 S.W.3d 285. Further, when a case involves physical abuse, it is extremely important for a parent to demonstrate an ability to protect the child from physical harm before he can return to the parent's custody. See id. (wherein appellant would not acknowledge abuse to her child by live-in boyfriend until he had been sentenced for the abuse). Finally, a circuit court's repeated findings that the mother lacked credibility demonstrated overwhelming evidence to support the aggravated-circumstances finding. Id. at 12, 554 S.W.3d at 293.
As in Bentley , the circuit court found that appellant lacked credibility throughout the entire case. Further, appellant had completed all services in the case plan, and there was testimony from DHS agent Hill that there were no further services that DHS could offer for reunification, despite Hill's testimony that she had received a recommendation for appellant to participate in J.M.'s therapy. Nonetheless, Hill testified that appellant did not acknowledge that Juarez had abused C.J., causing life-threatening injuries, and she continued contact with Juarez throughout the case. Accordingly, the circuit court did not clearly err in finding that appellant had not benefited from DHS's services to demonstrate the ability to keep the children safe. Appellant requests that this court reweigh the testimony and evidence which is impermissible under our standard of review. Bentley , 2018 Ark. App. 374, at 13, 554 S.W.3d at 293 (holding that under the standard of review, we do not act as a super fact-finder, and it is not reversible error for the circuit court to weigh the evidence differently than how the appellant asks the evidence to be weighed). Because only one statutory ground is necessary to be proved to support a termination order, we need not discuss appellant's subsequent-factors argument. See Threadgill , supra.
Affirmed.
Glover and Vaught, JJ., agree.
The circuit court's order also denied termination of parental rights as to Josue Murcia, legal father of J.M.; granted termination of parental rights as to Maria Soledad Calderon Gomez, mother of C.J.; and granted termination of parental rights as to Rolando Juarez, father of C.J. and J.R. However, none of these parties are included in the appeal of the circuit court's termination order.
Juarez was not allowed visitation with C.J. due to a no-contact order from another court.
By order filed August 31, 2017, in case No. JN 2017-960, we learn that DHS took a seventy-two-hour hold on J.R. on August 24, 2017, to protect his health and physical well-being. On August 28, DHS filed an ex parte petition for emergency custody, and an order was filed on the same date placing J.R. in DHS custody. Probable cause was found to exist to continue custody of J.R. with DHS based on the severity of the physical abuse to his sibling, C.J. | [
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Stanley testified that his tax returns are the best reflection of his income and that his income varies, leaving him without a specific biweekly amount. He asked that the trial court use his tax returns to determine his income. Stanley also introduced exhibits that listed both his credit card and IRS debts totaling more than $ 4000. He said that he owes $ 13,255.11 on his vehicle and claimed that his monthly net pay is $ 3,544.50. His affidavit of financial means reflected that his expenses are $ 5,045.96 a month.
The trial court issued its decree on April 23, 2018, and it states as follows:
4. PROPERTY. The Court finds the following distribution of property to be equitable:
The Plaintiff is awarded the following property: the residence at 411 North Oakley, the 2011 Cadillac CTS, the 2004 Pontiac Grand Prix, one-half (1/2) of Defendant's Union Pacific Retirement account, one-half (1/2) of her own Arkansas Public Employee Retirement System (APERS) account, and whatever funds presently exist in the parties' joint bank account.
The Defendant is awarded the following property: the 2011 Cadillac DTS, the 1994 Pontiac Grand Am, the GMC truck, the GMC Denali, the 2008 Suzuki Hayabusa Motorcycle, one-half (1/2) of his own Union Pacific Retirement account, one-half (1/2) of Plaintiff's APERS account, all of his ITW Retirement Account, and all of the cash he admitted to possessing and withholding from Plaintiff at and around the time of the separation which the Court finds would well exceed $ 6,000.00.
1. DEBTS. The Court makes the following debt distributions:
The Plaintiff shall be responsible for the following marital debts: Capital One ($ 1,584.06); IRS/2015 ($ 983.46); IRS/2016 ($ 1,200.00); JCPenney ($ 386.46); LAC Collections ($ 65.51); Best Buy ($ 1,521.72); TJ Max/Synchrony Bank ($ 607.21); RCA ($ 50.00); Fordyce Bank & Trust ($ 2,703.27); Discover Card ($ 1,337.17); Exxon ($ 326.45); Dr. Brotherton ($ 64.67); Jefferson Regional Medical Center ($ 232.00); Avenue ($ 354.05); Credit One ($ 1,827.85); Children's Place ($ 199.00); Midland Funding ($ 2,095.32); and GM Financial for the 2011 Cadillac CTS ($ 14,172.56).
The Defendant shall be responsible for the following marital debts: Sears Credit Card ($ 1,091.49); Best Buy ($ 1,158.00), IRS taxes owed for 2014, 2015, 2016, and 2017; debt on the 2011 Cadillac DTS (approximately $ 14,000.00); and other credit card debt in Defendant's name.
2. ALIMONY. The Court finds after considering the financial circumstances of both parties; the financial needs and obligations of both; the couple's past standard of living; the amount and nature of the income, both current and anticipated, of both husband and wife; the extent and nature of the resources and assets of each of the parties; the amount of income of each that is spendable, the amounts which, after entry of the decree, will be available to each of the parties for the payment of living expenses; the earning ability and capacity of both husband and wife; property awarded or given to one of the parties, either by the court or the other party; the disposition made of the homestead or jointly owned property; the relative fault of the parties and their conduct, both before and after separation, in relation to the marital status, to each other and to the property of one or the other or both; and the duration of the marriage; that the Plaintiff should receive spousal support. Defendant shall pay the amount of $ 500.00 per month for a period of forty-eight (48) months at which time the support shall cease. Support shall cease earlier if the Plaintiff remarries prior to the conclusion of the forty-eight months.
Stanley's appeal timely followed.
II. Applicable Law and Standard of Review
Arkansas Code Annotated section 9-12-315(a) (Repl. 2015) provides:
At the time a divorce decree is entered:
(1)(A) All marital property shall be distributed one-half (½) to each party unless the court finds such a division to be inequitable. In that event the court shall make some other division that the court deems equitable taking into consideration:
(i) The length of the marriage;
(ii) Age, health, and station in life of the parties;
(iii) Occupation of the parties;
(iv) Amount and sources of income;
(v) Vocational skills;
(vi) Employability;
(vii) Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income;
(viii) Contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and
(ix) The federal income tax consequences of the court's division of property.
(B) When property is divided pursuant to the foregoing considerations the court must state its basis and reasons for not dividing the marital property equally between the parties, and the basis and reasons should be recited in the order entered in the matter[.]
We review divorce cases de novo. Wyatt v. Wyatt , 2018 Ark. App. 177, 545 S.W.3d 796. In Steeland v. Steeland , 2018 Ark. App. 551, at 4-5, 562 S.W.3d 269, 273, we stated,
With respect to the division of property in a divorce case, we review the trial court's findings of fact and affirm them unless they are clearly erroneous or against the preponderance of the evidence. Brown v. Brown , 373 Ark. 333, 284 S.W.3d 17 (2008). A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Jones v. Jones , 2014 Ark. 96, 432 S.W.3d 36.
Trial courts in traditional equity cases have broad powers to distribute the property in order to achieve an equitable division. Russell v. Russell , 2013 Ark. 372, 430 S.W.3d 15. The trial court is vested with a measure of flexibility in apportioning the total assets held in the marital estate upon divorce, and the critical inquiry is how the total assets are divided. See Canady v. Canady , 290 Ark. 551, 721 S.W.2d 650 (1986). The overriding purpose of the property-division statute is to enable the court to make a division that is fair and equitable under the circumstances. Id.
Marital property cannot always be divided exactly equally and in kind. Jones, supra . Stated differently, the property-division statute does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably.
McCormick v. McCormick , 2012 Ark. App. 318, 416 S.W.3d 770 ; Coatney v. Coatney , 2010 Ark. App. 262, 377 S.W.3d 381. We will not substitute our judgment on appeal as to the exact interest each party should have but will decide only whether the order is clearly wrong. Jones, supra .
Although the division of marital debt is not addressed in Arkansas Code Annotated section 9-12-315, an allocation of the parties' debt is an essential issue to be resolved in a divorce dispute. Karolchyk v. Karolchyk , 2018 Ark. App. 555, 565 S.W.3d 531. The allocation of marital debt must be considered in the context of the distribution of all the parties' property. Boxley v. Boxley , 77 Ark. App. 136, 73 S.W.3d 19 (2002). However, section 9-12-315 and its presumption of equal division does not apply to the division of marital debts. Gilliam v. Gilliam , 2010 Ark. App. 137, 374 S.W.3d 108. There is no requirement that the marital debt be subtracted from the marital assets to determine the "net" value of the total award made to each party in all divorce cases. Id. A determination as to how debts should be allocated between the parties will not be reversed unless it is clearly erroneous. Id. Additionally, the court has broad powers to distribute property in order to achieve a distribution that is fair and equitable under the circumstances; it need not do so with mathematical precision. Coatney, supra .
In Chambers v. Chambers , 2017 Ark. App. 429, 527 S.W.3d 1, we held that property division and alimony are complementary devices that the trial court may utilize in combination to make the dissolution of marriage equitable. In Karolchyk , we stated,
Generally, the primary consideration in a decision to award alimony is the relationship between the needs of the payee spouse and the payor spouse's ability to pay. Trucks v. Trucks , 2015 Ark. App. 189, at 3, 459 S.W.3d 312, 314-15. An award of alimony lies within the discretion of the circuit court and will not be reversed absent an abuse of discretion. Id. There are secondary factors that may also be considered. Id. The factors include (1) the parties' financial circumstances; (2) the parties' past standard of living; (3) the value of jointly owned property; (4) the amount and nature of the parties' income, both current and anticipated; (5) the extent and nature of the resources and assets of each party; (6) the amount of income of each party that is spendable; (7) the earning ability and capacity to earn of the parties; (8) the property awarded or given to one of the parties, either by the court or the other party; (9) the disposition of the homestead; (10) the respective health and medical needs of the parties; (11) duration of the marriage; and (12) the amount of child support. Id.
Karolchyk , 2018 Ark. App. 555, at 8, 565 S.W.3d at 536-37.
III. Division of Marital Property
Stanley argues that the trial court's division of marital property was clearly erroneous because it did not divide the marital property equally and that an unequal division of property was not supported by the evidence. Ark. Code Ann. § 9-12-315(a)(1)(A). He acknowledges that an equal distribution of marital debt is not mandated, and he urges that it be considered in the context of the distribution of all of the parties' property. Baker v. Baker , 2013 Ark. App. 543, 429 S.W.3d 389. Stanley complains that the trial court divided the marital property but did not state that the allocation of their debt was considered in the property division, nor did the court indicate that the division of property was an unequal distribution.
Stanley asserts that Barbara's testimony regarding cash kept in his glove box and in his briefcase was contradicted by him, and he testified that Barbara had stolen some of the cash from his glove box in July 2015. He also testified that by the time the parties had separated in October 2015, he had spent all the money in the glove box, which he had kept there because of Barbara's "spending problems." Stanley argues that neither party presented credible testimony that he possessed a significant amount of cash at the time of their separation or divorce. Further, he contends that Barbara was not entitled to reimbursement for any nonconsensual transfer of marital funds made by him in the absence of proof of an intent to defraud. See Wainwright v. Merryman , 2014 Ark. App. 156. Thus, Stanley argues that the trial court committed reversible error by including the "hypothetical cash amount" in its division of property.
Stanley argues that his net property distribution equals $ 22,648 if the $6000 attributed to him is included in his award. He claims that Barbara's net distribution of property is $ 38,002.44. Thus, he contends that he was awarded far less.
He also contends that the trial court's debt division did not state that the debt distribution was made in accordance with the property division. He argues that Barbara was ordered to pay the Midland Funding debt, despite her having stated that the debt had been paid with proceeds from the Fordyce Bank & Trust loan. Therefore, he claims that the amount of debt attributed to Barbara is higher than the actual amount of her marital debt.
Stanley also complains that even though the divorce decree provides that he should be responsible for IRS taxes owed from 2014 through 2017, he owes an additional amount of $ 3,614.57-$ 1,914.57 for 2014-16 and $ 1700 for 2017. Stanley argues that much of Barbara's debt was accrued after the separation, and the resulting property related to the debt remained in her possession. He contends that given the amounts of his debt not listed and the allocation of marital debt to each party, Barbara received a larger property share than he did.
Stanley contends that the trial court allocated to each party his and her own debt and did not state how the allocation of marital debt factored into the court's award of marital assets. Accordingly, Stanley argues that the division of assets should be considered at face value. He contends that neither party requested an unequal division of marital assets or mentioned the factors to be considered in an unequal division of property. He argues that if the court intended to divide the assets equally, it erred in its calculations. If the court intended to make an unequal division, then it erred by awarding Barbara a larger share without sufficient evidence to support such a division. He asks that we reverse and remand to ensure an equal share of the marital assets for each party.
Barbara argues that the trial court did not err in dividing the marital property. We agree. Even though section 9-12-315 states that marital property "shall" be distributed equally, it is also true that the statute enables the trial court to make a division of property that is fair and equitable. See Hoover v. Hoover , 70 Ark. App. 215, 16 S.W.3d 560 (2000) (reversing a chancellor's property division that considered both assets and debts because of a miscalculation in the worth of assets).
The allocation of marital debt must be considered in the context of the distribution of all of the parties' property. Hackett v. Hackett , 278 Ark. 82, 643 S.W.2d 560 (1982). Here, the trial court divided the property and debt in an effort to make as equal an overall division of the marital estate as possible. Because mathematical precision is not required in the distribution of property, the critical inquiry is how the total assets are divided. Creson v. Creson , 53 Ark. App. 41, 917 S.W.2d 553 (1996). The overriding purpose of the property division statute is to enable the court to make a division that is fair and equitable under the circumstances. Steeland, supra .
Barbara was awarded $ 105,820 in assets (house $ 39,500; furnishings $ 1500; Cadillac CTS $ 8720; Grand Prix $ 3995; half of Stanley's retirement account $ 51,955; joint bank account $ 150). She contends that she was assigned $ 29,710.86 in debt, leaving her a net property award of $ 76,109.14. Stanley was awarded $ 90,853 in assets (Cadillac DTS $ 8,213; Grand Am $ 500; GMC truck $ 750; GMC Denali $ 5900; motorcycle $ 5470; half his retirement account $ 51,955; all of the ITW retirement account $ 12,065; cash $ 6000). Stanley was assigned $ 19,906.49 in debts, leaving him a net property value of $ 70,946.51.
She contends that the total net value of the estate is $ 147,056.24. Using this figure, Stanley's percentage share would be 48.24 percent, more or less. We note that if he had more than $ 6000 cash, which the trial court described as likely, the value of his share would increase. Mathematical precision is not required; thus, this should not be considered an unequal-distribution case. See Jones v. Jones , 2014 Ark. 96, 432 S.W.3d 36 (courts given flexibility because marital property cannot always be equally divided).
Stanley replies that Barbara's net-property argument is an attempt to classify an unequal distribution of marital property as an equal distribution. He argues that Arkansas law does not compel an equal division of marital debt, Baker , 2013 Ark. App. 543, at 6, 429 S.W.3d at 394, and that section 9-12-315 mandates either an equal division of marital property or a sufficient explanation for an unequal division of the property. Stanley argues that the inclusion of the parties' debts in a mathematical calculation is simply erroneous and that the property division by the trial court was not close to an equal division.
He is wrong on both counts. As set forth above, it is not improper to consider both assets and debts when dividing marital property. See Williams, supra. Further, mathematical precision is not required. See Coatney, supra. Stanley argues that if the court had intended for the debt distributions to justify an unequal division of the property, then section 9-12-315 required listing the existence and amounts of the parties' liabilities as a justification for an unequal distribution. This argument ignores the trial court's obligation to consider the debts in the context of the distribution of all of the parties' property. Based on our de novo review, we cannot say that the debt division was clearly erroneous or that the trial court clearly erred in dividing the parties' marital property.
IV. Statement of Basis for Unequal Division
Stanley contends that the trial court failed to include its bases and reasons for not dividing the marital property equally as is required under section 9-12-315(a)(1)(B). Because we have determined that the trial court did not make an unequal distribution, a statement by the trial court for doing so is not required.
V. Alimony
Stanley contends that the alimony award to Barbara of $ 500 a month for four years was based on
the financial circumstances of the parties; the financial needs and obligations of both; the couple's past standard of living; the amount and nature of the income, both current and anticipated, of both husband and wife; the extent and nature of the resources and assets of each of the parties; the amount of income of each that is spendable, the amounts which, after entry of the decree, will be available to each of the parties for the payment of living expenses; the earning ability and capacity of both husband and wife; property awarded or given to one of the parties, either by the court or the other party; the disposition of the homestead or jointly owned property; the relative fault of the parties and their conduct, both before and after separation, in relation to the marital status, to each other and to the property of one or the other or both; and the duration of the marriage.
Stanley claims that the divorce decree did not mention the need to rectify any economic imbalance or the primary factors of the ability to pay and the need for support. He also contends that the trial court erroneously considered the fault of the parties. The ground alleged was eighteen months' separation, and only Stanley asserted fault by stating that Barbara had a spending problem and a drinking problem. Thus, Stanley argues that Barbara presented no evidence that his conduct related to her "need for support or ability to pay." He contends that it was clearly erroneous for the trial court to rely on this factor.
Further, he alleges that the trial court's failure to include the primary factors of "need" and "ability to pay" amounts to reversible error. He claims that the award of alimony was clearly a mistake of fact, as the evidence did not support those factors. He contends that including his per diem allowance in his disposable income was not supported by the testimony and evidence because his per diem is used to offset his expenses. Further, he argues that his monthly debt service should have been considered in the calculation of his ability to pay alimony.
Stanley contends that Barbara was in a much better position when she left the marriage than when she entered it. She maintained the same job; however, she left with a residence paid in full. He contends that the decree does not contain any finding regarding his monthly income or expenses. He claims that Barbara argued that his per diem awards should be classified as income and that his monthly income is $ 6,148.84. He contends that his income does not include the per diem award and that he averaged $ 3,544.50 a month without considering his per diem allowance. He argues that under either scenario, he does not have the ability to pay $ 500 a month after payment of his monthly expenses and debt totaling $ 5,857.27, "much less have any extra income to establish a savings of any sort, or to accumulate property."
Barbara contends that the trial court's consideration of the financial circumstances of both parties and the financial needs and obligations of both parties is the same as the "ability to pay" and recognition that she has a "need." We agree. Stanley's ability to pay was evidenced by his 2017 pay stub that reflected earnings of $ 6,148.84 a month for the first eight months of 2017. Stanley testified that the expenses not reimbursed by his per diem payments were $ 3945 a month, rather than $ 5,045.86. The trial court considered eleven factors in deciding that alimony was warranted, and the $ 500 awarded to Barbara was half of what she had asked for. Accordingly, we hold that the trial court did not abuse its discretion in awarding alimony.
Affirmed.
Murphy and Brown, JJ., agree.
This court later discussed the distribution of property in Hoover as follows:
A close reading of Hoover shows that we based our reversal not on the percentage distributed to each party but instead on the erroneous calculation of the value of an asset assigned to the appellant. Therefore, Hoover does not stand for the proposition that the marital debt must be subtracted from the marital assets to determine the "net" value of the total award made to each party in all divorce cases. Although the chancellor in Hoover used this method, and we followed his methodology, the methodology itself was not in issue. Accordingly, we hold that the assignment of these debts to appellant did not constitute an unequal distribution of the marital property.
Williams v. Williams , 82 Ark. App. 294, 310, 108 S.W.3d 629, 639 (2003). | [
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BRANDON J. HARRISON, Judge
This appeal asks whether Jeff Phillips presented sufficient evidence during a bench trial to repel Jewell Edward Denton's motion to dismiss Phillips's unjust-enrichment claim. He did. We therefore hold that the circuit court erred by granting Denton's motion, which came after Phillips had rested his case. The circuit court's decision is reversed and the case remanded for further proceedings.
I.
Jeff and Susie Phillips, and Jewell (J.E.) and Vallalee (Val) Denton, lived in separate mobile homes on a piece of land outside Rogers, Arkansas. J.E. is Susie's father. Susie and her mother, Val, have since passed away. Jeff Phillips and J.E. Denton were related to each other by marriage (son-in-law and father-in-law). There was no evidence that a probate proceeding had ever been opened related to Susie's and Val's estates.
In April 2016, the property was the focus of litigation. Phillips filed a complaint in circuit court alleging that he was entitled to an undivided one-half interest in the land. He raised four claims: (1) breach of contract, (2) fraud, (3) promissory estoppel, and (4) unjust enrichment. Phillips also asked the court to declare that the Dentons had conveyed at least a one-half interest in the property to him and Susie and that Susie's interest passed to him through intestate succession. Phillips has abandoned all claims except unjust enrichment.
The case was tried to the circuit court in February 2017. A summary of the testimony goes like this. According to Phillips, he, Susie, and her parents (J.E. and Val) agreed to jointly purchase a parcel of land located at 12761 Douglas Lane in Rogers, Arkansas. Phillips said that he and Susie did not have sufficient credit to obtain financing to buy the land, so the parties agreed that J.E. and Val would finance the property. In turn, Phillips and Susie would make payments directly to J.E. and Val for one-half of the promissory note. It was a "handshake" agreement-the common goal being that each family would get to buy land on which to place a mobile home. Phillips said the agreement was that each couple would pay half of each note payment, although there might be some months when someone would need to shoulder more of the financial load. In the end, each couple would own half of the property.
First National Bank and Trust Company financed the property on 12 October 1995. The contract sales price was $35,000. The fifteen-year promissory note reflects that the bank financed $28,000 at an annual interest rate of 10.259%. The monthly payments were $305.34. The total amount to be paid was $54,961.20. The promissory note and the related warranty deed show J.E. and Val as the promisors and grantees.
Both families moved mobile homes onto the property near one another. Susie passed away a few months later, in February 1996, but Phillips continued to make monthly payments to the Dentons. At trial, Phillips presented three receipt booklets as evidence of the monthly payments. The receipts track the length of the promissory note from October 1995 to December 2010 and are numbered sequentially in the three receipt booklets. Most receipt amounts are between $150 and $320; a few are as low as $50, some as high as $1200. Phillips told the court that when one couple or person struggled financially then the other couple or person would cover all or part of the note payment. The deficit would then be made up later. Phillips said that he was not concerned that it was only Val and J.E.'s names on the promissory note because he trusted them. He would pay Val and J.E., and they would make the mortgage payments. A number of receipts recite the words "purchase of land J. Phillips," "Pmt. on land," "land pmt." or "on land." The total value of the signed receipts is approximately $25,000. About $3,000 worth of additional receipt stubs do not contain signatures.
Phillips testified that J.E. informed him that the mortgage had been paid off in 2010, that he no longer needed to pay on the property, and that J.E. gave him the receipt booklets for the payments Phillips had made. No payments have been made since December 2010. Phillips testified during the trial that J.E. informed him that he wanted to sell the land, move closer to his children in Kansas, and had placed a "for sale" sign on the property in April 2016. J.E. refused to partition the property or promise to give Phillips one-half of the sale proceeds.
J.E. testified as an adverse witness during Phillips's case-in-chief. J.E. acknowledged that Phillips had lived on the property since 1995. J.E. contended that all the payments Phillips had made were to Val. J.E. said that he never wrote a receipt, that Val was the one who wrote and signed them, and that he knew Phillips was giving Val money for the land. He said that he did not sign the receipts with the signature "J.E. Denton." J.E. denied having a "deal" with Phillips but acknowledged that Susie and Val had a "deal." J.E. could not explain why Phillips had paid him. Phillips did not owe him money for any obligation, nor for any improvements related to the land. He also said that he was the one who gave Phillips the receipt booklets and stubs and that Phillips did not contribute toward real-estate property tax on the land.
Phillips then rested his case. The circuit court granted Denton's motion to dismiss, finding that a
constructive trust may be implied if the trustee, in this case Mr. Denton, acquired legal title to the detriment of Mr. Phillips through actual fraud, constructive fraud, violation of a confidential relationship or fiduciary relationship, duress, mistake, undue influence, or any other questionable means. There was no evidence presented to this Court as to any fraud, actual fraud, confidential relationship, duress, or mistake or undue influence clearly not rising to the level of standard of proof in this matter, which is clear and convincing evidence.
[Unjust enrichment] will support the imposition of a constructive trust even in the absence of fraud or constructive fraud if the Court finds that the trustee, in this case Mr. Denton, is holding the property for the beneficiary Mr. Phillips. This burden of proof is also clear and convincing evidence. This Court finds that there is no clear and convincing evidence that Mr. Denton was holding the property for Mr. Phillips. Mr. Phillips himself testified that they purchased the land together. No facts to support that the land was to be conveyed to Phillips after some condition was satisfied or met. Therefore, the defendant's motion for directed verdict is granted.
The circuit court entered a written order that dismissed all of Phillips's claims with prejudice. Phillips appealed and asks to have his unjust-enrichment claim reinstated.
II.
In a civil bench trial, we treat a defendant's motion for "directed verdict" as a motion to dismiss. Rymor Builders, Inc. v. Tanglewood Plumbing Co. , 100 Ark. App. 141, 265 S.W.3d 151 (2007). When deciding a motion to dismiss after the plaintiff rests his or her case during a bench trial, the circuit court must decide "whether, if it were a jury trial, the evidence would be sufficient to present to the jury." Id. at 145, 265 S.W.3d at 153. If the nonmoving party has made a prima facie case on its claim, then the fact-finder must resolve the fully presented case on the merits. Id. When evaluating whether the evidence is substantial enough to make a question for the fact-finder, however, the circuit court may not assess the witnesses' credibility. Id.
An unjust-enrichment claim has legs when a person has received money (or its equivalent) under circumstances that, in equity and good conscience, he or she ought not to retain. Hatchell v. Wren , 363 Ark. 107, 117, 211 S.W.3d 516, 522 (2005) (internal citations omitted). The claimant's burden is to "produce evidence permitting at least a reasonable approximation of the amount of the wrongful gain ... the claimant's burden of proof, so described, is ordinarily met as soon as the claimant presents a coherent theory of recovery in unjust enrichment." Hartness v. Nuckles , 2015 Ark. 444, at 8, 475 S.W.3d 558, 564 (citing Restatement (Third) of Restitution and Unjust Enrichment § 51, cmt. i (2011)). Unjust enrichment can be inferred from the conduct, circumstances, and relationship of the parties. See Stokes v. Stokes , 2016 Ark. 182, 491 S.W.3d 113. The unjust-enrichment doctrine is protean, taking on whatever form is required to right a wrong and do justice. See, e.g. , Dews v. Halliburton Indus., Inc. , 288 Ark. 532, 536, 708 S.W.2d 67, 69 (1986) ; Little Rock Mun. Airport Comm'n v. Ark. Valley Compress & Ware. Co. , 224 Ark. 1018, 277 S.W.2d 836 (1955) (doctrine is liberally applied).
We believe the circuit court put the cart before the horse in some sense by concentrating on the remedy facet of unjust enrichment rather than on whether Phillips had proved his case sufficiently to defeat a motion to dismiss raised at the end of his proof. The focus on a constructive trust during the motion-related colloquy makes the point. In any event, a claimant seeking restitution for unjust enrichment can generally recover the value of the benefit conferred upon the party unjustly enriched. See Sanders v. Bradley Cty. Human Servs. Pub. Facilities Bd. , 330 Ark. 675, 956 S.W.2d 187 (1997). A constructive trust is only one of several remedies available. Under Arkansas law, a constructive trust is available when an unjust enrichment demands relief, and the legal relief in the form of money is not adequate or, more precisely, is not as adequate as a constructive trust. See Howard W. Brill, Equity and the Restitutionary Remedies: Constructive Trust, Equitable Lien, and Subrogation , 1992 Ark. L. Notes 1, 5 (1992) (citing cases). But money can be awarded if the circumstances warrant.
III.
We hold that Phillips is correct: the circuit court erred when it granted Denton's motion to dismiss because Phillips established the required prima facie case that Denton would be unjustly enriched absent some remedy. Viewing the facts in the light most favorable to Phillips-as our standard of review requires us to do-sufficient evidence supports his claim such that the court should not have granted the motion to dismiss. For example, Phillips presented evidence of an oral agreement, dating back to 1995, between him and his deceased wife, and the Dentons, to buy land together on which to place the two couples' separate mobile homes. Part of the terms was that each couple pay one-half of the only mortgage taken out on the land. Phillips provided evidence that he had paid $25,000-$28,000 over a fifteen-year period (1995-2010), in monthly installments. This amount is approximately one-half of the $54,961 promissory note. For his part, J.E. did not dispute that Phillips consistently paid money to the Dentons, for fifteen years. And he admitted that he gave Phillips the receipt booklets for those payments. Coincidentally, Phillips's monthly payments stopped when there was a satisfaction and release of the mortgage. J.E. also denied that the money Phillips paid was for any other obligation.
Substantial evidence was presented on the points that permitting J.E. to keep the money that Phillips had paid and to also receive legal title to the property, without a partition, could unjustly enrich J.E. Substantial evidence also existed to put to the fact-finder the question whether a confidential relationship existed between J.E. and Phillips. For these reasons, the circuit court erred in dismissing the case, on J.E.'s motion, at the close of Phillips's proof. The dismissal of Phillips's unjust-enrichment claim is reversed and the case remanded for further proceedings.
Reversed and remanded.
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LARRY D. VAUGHT, Judge
Appellant Jarmall Kelley appeals his conviction by a Jefferson County Circuit Court jury of residential burglary, aggravated assault, theft by receiving, and interference with custody. We have twice previously ordered rebriefing. Kelley v. State , 2018 Ark. App. 299, 2018 WL 2123795 ; Kelley v. State , 2018 Ark. App. 448, 2018 WL 4609234. Kelley's appointed counsel has filed a no-merit brief and a motion to be relieved pursuant to Rule 4-3 of the Rules of the Arkansas Supreme Court and Court of Appeals and Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which complies with our rules. Kelley has again been notified of his right to file pro se points and has not done so. After reviewing counsel's brief and the record of proceedings before the circuit court, we affirm Kelley's conviction and grant counsel's motion to withdraw.
A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract and addendum. Ark. Sup. Ct. R. 4-3(k)(1). The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the circuit court on all objections, motions, and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. Id. This framework ensures that indigents are afforded their constitutional rights. Leaks v. State , 2018 Ark. App. 361, 553 S.W.3d 768. In furtherance of the goal of protecting these constitutional rights, it is the duty of both counsel and this court to perform a full examination of the proceedings as a whole to decide if an appeal would be wholly frivolous. Id.
As we explained in Kelley , 2018 Ark. App. 299, this case stems from an altercation between Kelley and Ariel Crompton, the mother of his child, in which Kelley entered Ariel's apartment and forcefully took the child against Ariel's will. Ariel's father, Clifton Crompton, then approached Kelley outside the apartment, and he testified at trial that Kelley pulled out a gun, waved it around while holding the child, and told Clifton that he would shoot him if Clifton tried to stop Kelley from taking the child. Clifton testified that Kelley's threats caused Clifton to stop trying to retrieve the child because to do so would "put everybody else in danger."
In compliance with the directives of Anders and Rule 4-3(k)(1), Kelley's counsel has thoroughly reviewed the record in this case and has found no error that would support an appeal. As required by Rule 4-3(k), the reasons the adverse rulings provide no meritorious grounds for appeal are discussed in the brief. Counsel has abstracted and briefed all adverse rulings, which included adverse rulings during jury selection, adverse evidentiary rulings, the denial of the directed-verdict motion, and the order revoking Kelley's bond.
The test for filing a no-merit brief is not whether there is any reversible error but whether an appeal would be wholly frivolous. House v. State , 2015 Ark. App. 280, 2015 WL 1954057. Based on our independent review of the record and the brief presented, we hold that counsel has complied with Rule 4-3(k) and that there would be no merit to an appeal. A person commits residential burglary if "he or she enters or remains unlawfully in the residential occupiable structure of another person with the purpose of committing in the residential occupiable structure any offense punishable by imprisonment." Ark. Code Ann. § 5-39-201 (Repl. 2013). A person commits interference with custody if "without lawful authority he or she knowingly takes, entices, or keeps, or aids, abets, hires, or otherwise procures another person to take, entice, or keep any minor from the custody of (1) the parent of the minor including an unmarried woman having legal custody of an illegitimate child under 9-10-113." Ark. Code Ann. § 5-26-503(a)(1) (Repl. 2013). We agree with counsel that the trial testimony of both Lakeada Doolittle and Brittany Doolittle that Kelley forced open the door of Ariel's apartment and took Ariel's child against Ariel's will provides sufficient evidence to support Kelley's convictions for residential burglary and interference with custody.
A person commits theft by receiving if he or she receives, retains, or disposes of stolen property of another person. Ark. Code Ann. § 5-36-106 (Repl. 2013). Here, Paul Brown testified that he is a manager at Hunter's Refuge and that at least sixty firearms had been stolen in a recent burglary. He identified a pistol recovered from Kelley as being one of the guns stolen from his store, and he testified that it was valued at approximately $ 600. Officer Corquis Chism testified that he discovered the pistol under the passenger-side dashboard of a car in which Kelley was riding in the passenger seat. Officer John Zuber testified that Kelley admitted purchasing the pistol from an acquaintance. The officer also verified that the pistol was one of the firearms stolen from Hunter's Refuge. We therefore agree with counsel that there was sufficient evidence to support Kelley's conviction for theft by receiving of a firearm less than $ 2500.
A person commits aggravated assault if "under circumstances manifesting extreme indifference to the value of human life, he or she purposely: (1) engages in conduct that creates a substantial danger of death or serious physical injury to another person." Ark. Code Ann. § 5-13-204 (Repl. 2013). Again, we agree with counsel that sufficient evidence supports this conviction. Both Clifton Crompton and Lakeada Doolittle testified that Kelley pulled out a gun and waved it at Clifton when Clifton tried to stop Kelley from taking the child. Clifton testified that Kelley threatened to shoot him. In Johnson v. State , 132 Ark. 128, 130, 200 S.W. 982, 982 (1918), the Arkansas Supreme Court held that the act of drawing a pistol accompanied by threats evidencing an intention to use it on the person threatened constitutes assault.
We also agree that there would be no merit to an appeal regarding the circuit court's adverse jury-selection rulings. Kelley objected to a juror's being removed after she disclosed medical issues and expressed an inability to judge others. The court struck her for cause. Kelley also objected to the court's decision to seat a potential juror who had a commitment that would require him to leave by a certain time that afternoon. Kelley worried that the jury would feel rushed to make a decision. The court seated the juror but also put alternates in place in case he had to leave before the case was decided. In both cases, we see no abuse of discretion and agree that the facts present no meritorious ground for appeal. See Biggers v. State , 317 Ark. 414, 878 S.W.2d 717 (1994).
The next adverse ruling was the court's decision to admit into evidence audio recordings of three 911 calls related to the incident. Kelley objected, arguing that the calls were hearsay without the callers present to testify. The State argued that they were admissible as business records or as present-sense impressions. The court admitted the recordings, and we agree that they were admissible as present-sense impressions under Rule 803 of the Arkansas Rules of Evidence. Under Rule 803, a present-sense impression is a statement describing or explaining an event or condition made while the declarant was perceiving it or immediately thereafter. Ark. R. Evid. 803(1). The 911 calls in this case were made by a female caller who had just witnessed an incident in which Kelley had taken the baby by force using a gun and had driven away in a vehicle that she was following. We agree that these statements qualify as present-sense impressions, admissible under Rule 803.
We also note that Arkansas courts have admitted 911 recordings as excited utterances under Rule 803(2). An excited utterance is a statement about a startling event or condition that is made while the speaker is under the stress or excitement caused by that event or condition. Ark. R. Evid. 803(2). We have reviewed the 911 calls at issue in this case and agree that they were admissible as either present-sense impressions or excited utterances and that there is no meritorious basis for an appeal as to the court's admission of the recordings.
The court then overruled Kelley's objection to a question that Kelley's counsel mistakenly believed would elicit hearsay testimony. The State asked Clifton Crompton whether he had talked to his daughter about the case. Defense counsel objected on hearsay grounds, and defense counsel clarified that he was not asking Clifton what Ariel had said in any such conversation, just whether they had talked about coming to court. The court overruled the objection, and we agree with counsel's analysis that the hearsay objection was premature and that the question did not elicit impermissible hearsay testimony.
The court also sustained the State's objections to defense counsel's comments characterizing a scene from a security-camera video as either a "confrontation" or an "extended conversation," directing defense counsel to simply question the witness. This adverse ruling presents no meritorious basis for an appeal because an attorney may not testify, Arthur v. Zearley , 320 Ark. 273, 895 S.W.2d 928 (1995), and the circuit court may exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence in order to make it as effective as possible in assisting the jury in ascertaining the truth. Ark. R. Evid. 611.
Finally, the court granted the State's motion to revoke Kelley's bond when the State presented evidence that Kelley had been charged with a new offense while out on bond. A circuit court has wide discretion in assuring the appearance of a defendant for trial, and Rule 9.6 of the Arkansas Rules of Criminal Procedure allows the court to revoke a defendant's release if any court has found reasonable cause to believe that the defendant has committed a felony while released pending adjudication of a prior charge. Accordingly, the revocation of Kelley's bond presents no meritorious ground for an appeal.
We are satisfied that counsel has fully complied with Anders and Rule 4-3(k)(1). We therefore affirm the convictions and grant counsel's motion to withdraw.
Affirmed; motion to withdraw granted.
Gladwin and Glover, JJ., agree. | [
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RAYMOND R. ABRAMSON, Judge
Jamal Akram was convicted by a Mississippi County Circuit Court jury of first-degree murder. He was sentenced as a habitual offender to sixty years' imprisonment in the Arkansas Department of Correction. On appeal, he claims that (1) the circuit court erred by denying his motion to suppress his statement, (2) the State improperly commented on his failure to deny his guilt, and (3) there was insufficient evidence to support his first-degree-murder conviction. We affirm.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Steele v. State , 2014 Ark. App. 257, 434 S.W.3d 424. Although this is Akram's final point on appeal, double-jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence before the other issues on appeal. See Jones v. State , 349 Ark. 331, 78 S.W.3d 104(2002).
When the sufficiency of the evidence is challenged on appeal from a criminal conviction, we consider only that proof that supports the conviction. Singleton-Harris v. State , 2014 Ark. App. 436, 439 S.W.3d 720. We view that evidence and all reasonable inferences deducible therefrom in the light most favorable to the State. Davis v. State , 2011 Ark. App. 261, 378 S.W.3d 873. We will affirm if the finding of guilt is supported by substantial evidence. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Clayton v. State , 2011 Ark. App. 692, 2011 WL 5563189. The jury is free to believe all or part of a witness's testimony, and we do not weigh the credibility of witnesses on appeal because that is a job for the fact-finder and not the appellate court. Sizemore v. State , 2015 Ark. App. 295, 462 S.W.3d 364.
In order to preserve a challenge to the sufficiency of the evidence, a defendant must make a motion for directed verdict at the close of the State's case and at the close of all the evidence and must state the specific grounds for the motion. Ark. R. Crim. P. 33.1(a) (2017). It is well settled that Rule 33.1 is strictly construed, and a defendant's failure to adhere to the requirements of Rule 33.1(a) will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict. Ark. R. Crim. P. 33.1(c). A general motion for directed verdict that merely asserts that the State has failed to prove its case is inadequate to preserve a sufficiency challenge for appeal. Jordan v. State , 2016 Ark. App. 255, at 7, 492 S.W.3d 543, 548. Failure to make the motion for directed verdict with specificity regarding the sufficiency issue on appeal equates to the motion never having been made. E.g. , id.
Akram did not comply with the requirements of Rule 33.1 ; therefore, his sufficiency argument is not preserved for this court's review. At the close of the State's evidence, Akram moved for a directed verdict because the State's evidence was "not sufficient as a matter of the law to sustain a conviction." At the close of all the evidence, Akram stated that he was "asking for a direct[ed] verdict" because the State "hadn't proven the burden of guilt." These are general motions for directed verdict, and they do not specify any missing elements. Accordingly, they are insufficient to preserve the issue for appeal. See, e.g. , id.
We now turn to Akram's argument that the circuit court erred by denying his motion to suppress. Before trial, the circuit court held a hearing on the motion to suppress Akram's custodial statement. Detective Matt Huckabay of the Blytheville Police Department testified that on March 18, 2016, Linda Hatcher, Akram's live-in girlfriend, was found beaten to death. Akram was the only other person in the house, and he was taken into custody around midnight. Detective Huckabay testified that he did not interview Akram the night of the murder because an officer had told him that Akram was intoxicated. The following afternoon at 2:35 p.m., Detective Huckabay interviewed Akram. The audio recording of the interview was introduced into evidence at the suppression hearing.
At the beginning of the interview, Detective Huckabay handed Akram a copy of his Miranda rights and read the rights aloud. Akram acknowledged that he understood his rights and completed the Miranda form by providing his date of birth, address, and signature. Detective Huckabay then asked Akram a series of background questions that Akram was able to answer.
Akram explained that he spent most of the day on March 18, 2016, with Pauline Richardson, his other girlfriend. Akram drank gin and smoked marijuana throughout the day. Akram claimed he did not remember what time he got home or what happened to Linda. He stated that he did not "remember doing that to [Linda]" and that he could not remember what had happened or why there was blood all over the house. Akram did not affirmatively deny that he had murdered Linda.
Detective Huckabay testified that Akram was upset and crying during the interview but that he did not appear to be intoxicated. Detective Huckabay also stated that Akram did not smell of alcohol at the time of the interview. After Detective Huckabay's testimony, the State introduced certified copies of two of Akram's previous convictions-one for robbery and one for manslaughter-to show his familiarity with the criminal-justice system. Akram argued that he was intoxicated the night before the interview and that Detective Huckabay did not know whether Akram was still intoxicated at the time of the interview.
Akram also alleged that he did not have his reading glasses and was unable to read the Miranda -rights forms. The circuit court found that Detective Huckabay read verbatim the Miranda -rights and waiver form to Akram and that Akram voluntarily waived those rights. The circuit court stated that on the tape of the interview Akram sounded "coherent" and "articulate" and "[d]id not slur his words" and "[d]id not appear to be intoxicated." Based on these findings, the circuit court determined that Akram's waiver was voluntary and denied his motion to suppress.
On appeal, Akram claims that he had been intoxicated the day before he executed his Miranda waiver, so his waiver was therefore involuntary. "In reviewing the denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court and proper deference to the circuit court's findings." Johnson v. State , 2015 Ark. 387, at 3, 472 S.W.3d 486, 488 (quoting Jackson v. State , 2013 Ark. 201 at 5, 427 S.W.3d 607, 611 ). A finding is clearly erroneous when, even if there is evidence to support it, the appellate court, after reviewing the entirety of the evidence, is left with a definite and firm conviction that a mistake has been made. Id. Specifically, our court reviews a circuit court's denial of a motion to suppress custodial statements based on the totality of the circumstances. E.g. , Grillot v. State , 353 Ark. 294, 310, 107 S.W.3d 136, 145 (2003). To make this determination, we review the totality of the circumstances surrounding the statement, including "the age, education, and intelligence of the accused; the lack of advice as to his constitutional rights; the length of the detention; the repeated and prolonged nature of the questioning; the use of mental or physical punishment; statements made by the interrogating officers; and the vulnerability of the defendant." Winters v. State , 2013 Ark. 193, at 6, 427 S.W.3d 597, 601. Conflicts in testimony and evaluating the "credibility of witnesses testifying about circumstances surrounding an appellant's custodial confession" are for the circuit court to determine. McPeak v. State , 2012 Ark. App. 234, at 5, 406 S.W.3d 430, 434. We will not reverse a circuit court's ruling on a suppression issue absent a showing that the decision was clearly against the preponderance of the evidence. E.g. , id.
A statement made while in custody is presumptively involuntary, and the State must prove by a preponderance of the evidence that the defendant made the custodial statement voluntarily, knowingly, and intelligently. E.g. , Grillot , 353 Ark. at 310-11, 107 S.W.3d at 145. In order to determine whether a waiver of Miranda rights is voluntary, our court looks to see if the confession was the product of free and deliberate choice rather than intimidation, coercion, or deception. E.g. , id. at 311, 107 S.W.3d at 145-46. When an appellant claims that his or her Miranda waiver was rendered involuntary because of drug or alcohol consumption, the level of the appellant's comprehension is a factual matter to be resolved by the circuit court. E.g. , id. at 311, 107 S.W.3d at 146. In deciding if a defendant voluntarily waived his or her rights, we determine whether the individual was of sufficient mental capacity to know what he or she was saying-capable of realizing the meaning of his or her statement-and that he or she was not suffering from any hallucinations or delusions. E.g. , id. at 311-12, 107 S.W.3d at 146.
In this case, Detective Huckabay testified that he did not interview Akram on the night of the murder because an officer suspected that Akram was intoxicated-Akram had bloodshot eyes, slurred speech, and smelled of intoxicants. At 2:35 p.m. the following day-over 15 hours later-Akram showed no signs of intoxication. He was coherent and articulate and did not have slurred speech or smell of alcohol. Detective Huckabay read Akram his Miranda rights, and Akram acknowledged and signed the form, stating that he understood his rights. Akram was able to clearly answer questions about his personal history and background.
Here, the circuit court listened to Akram's recorded statement and found that he did not appear to be intoxicated. Based on Detective Huckabay's testimony, the recording of the interview, and Akram's familiarity with the criminal-justice system, the circuit court's decision to deny the motion to suppress was not clearly against the preponderance of the evidence. See Harper v. State , 359 Ark. 142, 155, 194 S.W.3d 730, 738 (2004) (affirming the circuit court's decision to deny Harper's motion to suppress because officers testified that Harper "did not appear to be intoxicated, that he did not smell of alcohol, that he was steady on his feet, and that he was able to understand and respond to their questions"). Therefore, we affirm on this point.
On appeal, Akram also argues that the circuit court erred in allowing the prosecuting attorney to make improper remarks during closing argument. Akram claims that the State should not have been allowed to make multiple statements in its closing argument regarding his interview with police and the fact that he never denied that he had killed Linda. However, this issue is not preserved for our review. We will not review any alleged error in the State's closing argument absent a contemporaneous objection at trial. E.g. , Lard v. State , 2014 Ark. 1, at 26, 431 S.W.3d 249, 268. At trial, Akram failed to object to any statement made by the State during closing arguments. As such, Akram cannot now challenge the statements on appeal. See, e.g. , Smith v. State , 330 Ark. 50, 53, 953 S.W.2d 870, 871 (1997) (declining to reach the merits of Smith's claim that the prosecutor's comments violated his right not to testify since Smith failed to make a contemporaneous objection to the comment).
We agree with the State that in this case there is also no applicable exception to the contemporaneous-objection rule enunciated in Wicks v. State , 270 Ark. 781, 606 S.W.2d 366 (1980). Because Akram failed to contemporaneously object to the prosecutor's statements in closing argument and because no Wicks exception applies, this argument is not preserved.
Two of Akram's three appellate arguments are not preserved for our review, and we hold that the circuit court properly denied Akram's motion to suppress; accordingly, we affirm Akram's conviction of murder in the first degree.
Affirmed.
Harrison and Brown, JJ., agree. | [
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PHILLIP T. WHITEAKER, Judge
In this one-brief case, appellant Melissa Jackson appeals the Pulaski County Circuit Court's child-custody determination regarding Jackson's son, Q.L. The circuit court awarded joint legal custody of Q.L. to Jackson and appellee Quanterrio Littleton but primary physical custody of Q.L. to Littleton. On appeal, Jackson contends that the circuit court's decision was not in Q.L.'s best interest. We affirm.
I. Background and Procedural History
Jackson and Littleton were married in 2002. They are the parents of two children, a son, Q.L., and a daughter, B.L. Q.L. was born in 2007. The couple separated in 2008, and Jackson moved with Q.L. to Puerto Rico. Jackson returned to Arkansas in 2013 and reunited with Littleton; their daughter, B.L., was born in July 2014. The couple separated again in December 2014. After their separation, Jackson lived in Little Rock with both children, and Littleton lived in Pine Bluff.
In 2016, Q.L. began having behavioral problems in school. As a result, Jackson and Littleton agreed that Q.L. would stay with Littleton to see if his behavior would improve, and Littleton enrolled Q.L. in the Pine Bluff School District during the fall semester. Jackson had Q.L. over the Thanksgiving break, but when the break was over, she told Littleton that she was going to reenroll him in the Little Rock School District.
In November 2016, Jackson filed for divorce. In response, Littleton filed an answer to Jackson's complaint for divorce and a counterclaim seeking joint custody of both children. He also filed a petition for an ex parte order for temporary custody. The circuit court entered an order denying Littleton's request for ex parte relief, but it scheduled an expedited temporary hearing on the matter. After taking testimony at the temporary hearing, the court awarded temporary custody of B.L. to Jackson and temporary custody of Q.L. to Littleton, with each party exercising alternating-weekend visitations so that each parent would have both children every other weekend.
The circuit court ultimately held a final hearing on Jackson's complaint for divorce and subsequently entered a final divorce decree. The court found that it was in the children's best interest to maintain the custody arrangement as previously ordered. The court determined that Jackson and Littleton should share joint legal custody of the children; Jackson was awarded primary physical custody of B.L., and Littleton was awarded primary physical custody of Q.L. The court also made permanent the alternating-weekend-visitation plan, "so that each party shall have both minor children in their custody during their respective weekend visitations." Neither Jackson nor Littleton was ordered to pay child support. Jackson filed a timely notice of appeal from the decree.
II. Standard of Review
Arkansas law is well settled that the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. Starr v. Starr , 2015 Ark. App. 110, at 6-7, 455 S.W.3d 372, 375-76 ; Evans v. McKinney , 2014 Ark. App. 440, at 4, 440 S.W.3d 357, 359. Our standard of review in child-custody cases is well established. We consider the evidence de novo but will not reverse unless the circuit court's findings are clearly erroneous or clearly against the preponderance of the evidence. Delgado v. Delgado , 2012 Ark. App. 100, at 4, 389 S.W.3d 52, 56. Findings are clearly against the preponderance of the evidence when we are left with an irrefutable and express belief that a mistake has occurred. Id. With these standards in mind, we now consider the testimony and evidence before the circuit court.
III. Testimony
The circuit court had two occasions to hear testimony from the parties concerning their custody requests. Jackson presented evidence to the court about her income of approximately $2,600 a month, her three-bedroom apartment where Q.L. had his own room, and her efforts to transfer Q.L. from the Lighthouse Academies charter school in Pine Bluff to the Lighthouse Academies campus in North Little Rock. She also presented evidence of the strong bond between Q.L. and B.L. and the impact that the sibling separation was having on B.L. Likewise, Littleton presented evidence to the court concerning his income of $900 a month in Social Security benefits and about $1,200 a month in veteran's benefits. Littleton said that he was currently living in a one-bedroom apartment where Q.L. usually slept on the couch in the living room, but he planned to get a four-bedroom house with assistance from a VA loan as soon as the divorce was finalized. Regarding Q.L.'s education, Littleton reported that Q.L.'s grades had improved to the point that he was making As and Bs and had been on his school's merit list twice.
Both Jackson and Littleton agreed that Q.L. was exhibiting educational and behavioral issues while living with Jackson. They disagreed about how much improvement Q.L. had experienced since living with Littleton. Littleton said that when he first got custody, Q.L. was having some problems at school, but since then, his behavior had improved as well, except for one reported instance after an extended visit with his mother. Jackson admitted that Q.L. had "been doing a lot better" since the temporary-custody arrangement had gone into effect. She further described Q.L.'s "disrespectful side" as being "gone," saying he acted like a normal ten-year-old boy. She said, however, that it was hard for her to tell how much Q.L. had improved because she no longer interacted as much with him since she had him only every other weekend. She agreed that she and Q.L. got along fine, his behavior was more controlled, and there were fewer tantrums.
The circuit court also heard testimony from Q.L. Q.L. said he was making good grades at the Lighthouse Academies school in Pine Bluff and had friends there. He said it was "good living with [his] dad" and that while he got along with his mother okay, he got along better with his dad. Q.L. said, "I want to continue to stay with my dad. I would rather stay with my dad than to stay with my mom, because I stayed with my mom, like, eight and a half years and I stayed with my dad, like, half a year." Q.L. said he felt like his dad treated him better, and his desire to live with his dad was "a strong feeling."
When questioned by Jackson's attorney, Q.L. said that his mother was "pretty strict" with him and had a seven o'clock bedtime as opposed to a ten o'clock bedtime at his father's house. His mother made him do more chores than his dad as well, and she was stricter about his doing homework, although she helped him with it. On the whole, Q.L. said that it was "easier to just kind of hang out with [his] dad."
IV. Discussion
In her sole point on appeal, Jackson argues that the circuit court clearly erred in awarding primary physical custody of Q.L. to Littleton. She raises numerous points in support of her argument, such as the following: (1) she had been Q.L.'s primary caregiver; (2) the circuit court did not adequately consider Q.L.'s best interests; (3) she was better at working with Q.L.'s teachers on his educational needs; (4) Q.L. testified that he wanted to live with his father, but that was only because his father let him play video games instead of doing his homework; (5) Littleton's living arrangements are inferior to Jackson's; (6) Q.L. and his sister B.L. were not kept together; and (7) Littleton lacked personal responsibility because he had two other children by two other women.
Jackson's arguments, however, amount to nothing more than a request for this court to reweigh the evidence and to do so in her favor. This court has consistently held that it will not do so. See Cooper v. Merwether , 2018 Ark. App. 282, at 6, 549 S.W.3d 395, 398 ;
Wilhelm v. Wilhelm , 2018 Ark. App. 47, at 6, 539 S.W.3d 619, 624 ; Glisson v. Glisson , 2018 Ark. App. 21, at 11, 538 S.W.3d 864, 869. We give due deference to the superior position of the circuit court to view and judge the credibility of the witnesses. Delgado , 2012 Ark. App. 100, at 4, 389 S.W.3d at 56. This deference to the circuit court is even greater in cases involving child custody, as a heavier burden is placed on the circuit court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the child. Id. Child-custody cases are unique because there are no other cases in which the superior position of the circuit court to assess witness credibility carries as much weight. Id.
Moreover, we cannot agree that the circuit court's conclusions were clearly against the preponderance of the evidence. The facts before the circuit court, as set forth above, were that Q.L. was doing significantly better, both behaviorally and gradewise, in his father's custody. Although Littleton's living arrangements were far from ideal, he testified -apparently, to the circuit court, credibly-that he would soon be approved for a more appropriate home. Q.L. testified that he was happier with his father, and the circuit court could take that desire into consideration. See Ark. Code Ann. § 9-13-101(a)(1)(A)(ii) (Repl. 2015); Thurmon v. Thurmon , 2016 Ark. App. 497, at 1-2, 504 S.W.3d 675, 676 (holding that in determining the best interest of the child, the court may consider the preferences of the child if he or she is of a sufficient age and mental capacity to reason, regardless of chronological age).
After giving due deference to the circuit court's observations and credibility determinations, we conclude that there was no clear error in the court's decision to award primary physical custody of Q.L. to Littleton.
Affirmed.
Klappenbach and Hixson, JJ., agree.
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KENNETH S. HIXSON, Judge
Ashley Wagner appeals after the Sebastian County Circuit Court filed an order terminating her parental rights to H.W. (DOB 3-17-2017). Appellant's attorney has filed a no-merit brief and a motion to withdraw as counsel pursuant to Arkansas Supreme Court Rule 6-9(i) (2017) and Linker-Flores v. Arkansas Department of Human Services , 359 Ark. 131, 194 S.W.3d 739 (2004). The clerk of this court mailed a certified copy of counsel's motion and brief to appellant's last known address informing her of her right to file pro se points for reversal; however, she has not done so. We grant counsel's motion to withdraw and affirm the order of termination.
I. Facts
On April 25, 2017, Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect of H.W., who was a little over a month old at the time. In the affidavit attached to the petition, DHS explained that the child had been removed after DHS was asked to assist with H.W.; appellant had been arrested and charged with maintaining a premises for drug activity, child endangerment, and possession of drugs and drug paraphernalia. The trial court granted the petition, finding that probable cause existed for the removal. The trial court found that there was probable cause to believe that the child was dependent-neglected and that it was contrary to the child's welfare to remain with appellant. It noted that appellant had been released from prison on March 8, 2017; had given birth to H.W. on March 17, 2017; and had been arrested on April 22, 2017, following a "drug bust" at the home she shared with her child. The trial court further noted that appellant had her parental rights involuntarily terminated to an older child on September 15, 2016, as a result of a case that opened because of newborn illegal-substance exposure. Subsequently, the trial court filed a probable-cause order.
An adjudication hearing was held on June 7, 2017, and the trial court found that the child was dependent-neglected on the bases of parental unfitness, substance abuse, and threat of harm as defined in the Arkansas Juvenile Code. The goal of the case was reunification. Appellant was granted visitation at DHS's discretion and ordered to obtain and maintain stable and appropriate housing, employment, income, and transportation; complete parenting classes; undergo a psychological evaluation and complete any treatment recommended; stay clean and sober; submit to a drug-and-alcohol assessment and complete any treatment recommended; submit to random drug screens, hair follicle tests, and alcohol swabs at the request of DHS; and comply with her case plan, the terms of her parole, and any sentences imposed.
A review hearing was held on October 18, 2017, and the trial court subsequently filed a review order and order of paternity. In its order, the trial court noted that appellant had not complied with the case plan. Appellant had exercised only two visits with her child, and she left early on both occasions when she was asked to submit to a drug test. Appellant failed to show up for five other scheduled visits even though DHS had confirmed beforehand that appellant would attend. The trial court announced that the concurrent goals of the case were reunification and adoption.
On October 18, 2017, DHS and the attorney ad litem filed a joint petition for termination of parental rights. With respect to appellant, several grounds for termination under Arkansas Code Annotated section 9-27-341(b)(3)(B) (Supp. 2017) were alleged, including involuntary termination of parental rights to another child, little likelihood, abandonment, and subsequent factors.
At the January 10, 2018 termination hearing, appellant testified that she had resolved all her pending criminal cases and that she had either pleaded guilty or been adjudicated. She testified that she had not been incarcerated throughout the entirety of the case; rather, she had been incarcerated since November 2017. Appellant further anticipated that she would be released in June 2018. Appellant testified that she was still in a relationship with H.W.'s father and that they had lived together before her incarceration. Appellant explained that although she has five children, she did not have custody of any of them. Appellant testified that she does not consider herself a drug addict, but she admitted that she used drugs in April and November 2017 before her arrest. Appellant additionally admitted that she had not had stable employment before her arrest and that she had not attempted to communicate with anyone about finding employment once she is released. She requested that she be given a year to prove that she could take care of herself and H.W.
Mindy Tuck-Duty, the DHS caseworker assigned to the case, testified regarding the case history as previously stated. She testified that appellant had completed only four visits in the last eight or nine months. Appellant left early during her last visit with H.W. after Tuck-Duty asked her to complete a drug screen. Tuck-Duty testified that she was also the caseworker assigned to appellant's previous dependency-neglect case in which appellant's parental rights to another child were involuntarily terminated. Tuck-Duty testified that appellant had similar compliance issues in that case. She testified that H.W. does not have any medical or developmental delays that would keep him from being adoptable and that there was someone currently interested in adopting him. Therefore, she opined that it was in the child's best interest to terminate appellant's parental rights.
In the termination order, the trial court found by clear and convincing evidence that it was in the child's best interest to terminate appellant's parental rights. The trial court made the following pertinent findings:
3. The following items were introduced into evidence: proof of service on the mother and father, a certified copy of the Ex Parte order, a copy of the case plan, a certified copy of the Adjudication order, referral for a drug and alcohol assessment, a packet of referrals for the father, an email regarding a hair follicle not attended by the father, a certified sentencing order for Ashley Keel (aka Ashley Wagner) CR 2014-9-B-G, a certified sentencing order for Ashley Wagner CR 2016-28, a certified sentencing order for Ashley Wagner CR 2016-107B, a certified sentencing order for Randy Yancey CR 2016-107-A-G, a certified sentencing order for Ashley Wagner CR 2017-104B, a pending affidavit arrest warrant for Randy Yancey, a preliminary hearing order from Laflore County, OK regarding Randy Yancey CF-17-175, an affidavit of child support arrears on both parents, a warrant on Randy Yancey in the Sebastian County Warrant Search, an Oklahoma Journal Entry terminating Ashley Keel's (aka Ashley Wagner) rights to three children, a certified copy of an amended Emergency Petition in case number JV 2015-485, a certified copy of the Adjudication order in case number JV 2015-485, and a certified copy of the Order Terminating Parental Rights in JV 2015-485.
4. The Court has considered and reviewed all the evidence submitted and the testimony of the witnesses in this matter, and finds that the Department of Human Services has proven by clear and convincing evidence that:
a. The mother was candid with the court but showed a lack of judgment.
b. The mother has two prior involuntary terminations.
c. The mother has abandoned the juvenile. She made only 4 visits during the case.
d. There is little likelihood that additional time or services will result in reunification. None of the original issues have been resolved. The mother was referred for services in May of 2017. Those services included a drug and alcohol assessment and a hair follicle. The services were offered to no avail.
e. [H.W.] has not been in the mother's care since he was one month old.
f. There have been subsequent issues after the removal. The mother had several outstanding criminal charges. She failed to resolve some charges which were incurred prior to the beginning of the case. The mother was sentenced to prison as part of the resolution of her outstanding criminal charges.
g. The Court finds that the Arkansas Department of Human Services made reasonable efforts throughout the case.
h. The Court finds that the juvenile would be at risk of harm, both physically and psychologically if returned to a parent, as evidenced by the facts set forth above.
i. The Court finds that it is in the best interest of the juvenile to terminate parental rights. In making this finding, the Court specifically considered the likelihood that the juvenile will be adopted if the termination petition is granted. The Court finds the juvenile to be adoptable and healthy. There is a family currently interested in adopting [H.W.] should he be free for adoption.
5. As such, the Court grants the joint termination petition of the Department of Human Services and the Attorney Ad Litem and herby terminates all parental rights between Ashley Wagner and her child, [H.W.]
....
11. There shall be concurrent goals of termination and adoption and reunification as it pertains to the father's portion of the case.
This appeal followed.
II. Standard of Review
A trial court's order terminating parental rights must be based on findings proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3). Clear and convincing evidence is defined as that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Posey v. Ark. Dep't of Health & Human Servs. , 370 Ark. 500, 262 S.W.3d 159 (2007). On appeal, the appellate court reviews termination-of-parental-rights cases de novo but will not reverse the trial court's ruling unless its findings are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, an appellate court gives due deference to the opportunity of the trial court to judge the credibility of witnesses. Id.
In order to terminate parental rights, a trial court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted; and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii). The order terminating parental rights must also be based on a showing of clear and convincing evidence as to one or more of the grounds for termination listed in section 9-27-341(b)(3)(B). However, only one ground must be proved to support termination. Reid v. Ark. Dep't of Human Servs. , 2011 Ark. 187, 380 S.W.3d 918.
The intent behind the termination-of-parental-rights statute is to provide permanency in a child's life when it is not possible to return the child to the family home because it is contrary to the child's health, safety, or welfare, and a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child's perspective. Ark. Code Ann. § 9-27-341(a)(3). Even full compliance with the case plan is not determinative; the issue is whether the parent has become a stable, safe parent able to care for his or her child. Cobb v. Ark. Dep't of Human Servs. , 2017 Ark. App. 85, 512 S.W.3d 694. Moreover, a child's need for permanency and stability may override a parent's request for additional time to improve the parent's circumstances. Id. Finally, a parent's past behavior is often a good indicator of future behavior. Id.
III. Termination
In dependency-neglect cases, if, after studying the record and researching the law, appellant's counsel determines that the appellant has no meritorious basis for appeal, then counsel may file a no-merit petition and move to withdraw. Ark. Sup. Ct. R. 6-9(i)(1) (2017). The petition must include an argument section that lists all adverse rulings that the parent received at the trial court level and explain why each adverse ruling is not a meritorious ground for reversal. Ark. Sup. Ct. R. 6-9(i)(1)(A). The petition must also include an abstract and addendum containing all rulings adverse to the appealing parent that were made during the hearing from which the order on appeal arose. Ark. Sup. Ct. R. 6-9(i)(1)(B).
In counsel's no-merit brief, counsel correctly asserts that there can be no meritorious challenge to the sufficiency of the evidence supporting the termination of appellant's parental rights. Although the trial court found four statutory grounds for termination, only one ground is necessary to support the termination. See Campbell v. Ark. Dep't of Human Servs. , 2017 Ark. App. 82, 2017 WL 519132. Before the initiation of these proceedings, appellant had her parental rights involuntarily terminated to at least one of H.W.'s older siblings. Two prior termination orders were entered into evidence at the termination hearing, demonstrating that appellant's parental rights had been terminated to four of H.W.'s older siblings. The first termination order was from Oklahoma and involved three of appellant's children. There was some disagreement at the termination hearing as to whether the termination order from the Oklahoma court was an involuntary termination because the order never used the word "involuntary." Nevertheless, the second termination order was from Sebastian County, Arkansas, and clearly involuntarily terminated appellant's parental rights to a fourth child in 2016. One of the statutory grounds found by the trial court in the instant case was that, under Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(4) , appellant had her parental rights involuntarily terminated as to another child. This ground supported termination of appellant's parental rights to H.W., and any argument to the contrary would be without merit.
Appellant's counsel further asserts that there can be no meritorious challenge to the trial court's finding that termination was in H.W.'s best interest, and we agree. The testimony showed that appellant had failed to comply with the case plan, had failed to visit the child regularly, and was incarcerated at the time of the hearing. Moreover, the caseworker testified that H.W. is adoptable and that someone was already interested in adopting him. On this record, the trial court's finding that termination of appellant's parental rights was in H.W.'s best interest was not clearly erroneous.
IV. Other Adverse Rulings
Finally, appellant's counsel addresses several evidentiary rulings that were adverse to appellant. Evidentiary rulings by a trial court are reviewed for abuse of discretion. Cheney v. Ark. Dep't of Human Servs. , 2012 Ark. App. 209, 396 S.W.3d 272. Furthermore, a mere showing that the trial court erroneously admitted evidence will not support a reversal, absent a showing of prejudice. Hooks v. Ark. Dep't of Human Servs. , 2017 Ark. App. 687, 536 S.W.3d 666.
At the termination hearing, appellant objected on relevancy grounds to the admission of (1) three of appellant's prior sentencing orders involving drug offenses, (2) appellant's testimony regarding her communication with H.W.'s father, and (3) the caseworker's testimony regarding services that were offered to appellant during her prior Arkansas dependency-neglect case. Additionally, appellant objected to the admission of several of the documents relating to appellant's previous Oklahoma and Arkansas dependency-neglect cases, claiming that the evidence was more prejudicial than probative. We agree with counsel that there is no arguable merit to an appeal from these adverse rulings based on our standard of review.
Thus, after carefully examining the record and the brief presented to us, we find that counsel has complied with the requirements established by the Arkansas Supreme Court for no-merit appeals in termination cases, and we conclude that the appeal is wholly without merit. Accordingly, we affirm the order terminating appellant's parental rights and grant counsel's motion to withdraw.
Affirmed; motion to withdraw granted.
Klappenbach and Whiteaker, JJ., agree.
Randy Yancey is H.W.'s father. Because the trial court terminated only Wagner's parental rights in the April 18, 2018 order, he is not a party to this appeal. | [
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DAVID M. GLOVER, Judge
Cynthia Bailey appeals the Pulaski County Circuit Court's termination of her parental rights to her two children, a daughter, SB, born July 21, 2013, and a son, KW, born December 15, 2016. Pursuant to Linker-Flores v. Arkansas Department of Human Services , 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6-9(i), her counsel has filed a no-merit brief purporting to set forth all adverse rulings from the termination hearing and asserting there are no issues that would support a meritorious appeal. Her counsel has also filed a motion asking to be allowed to withdraw as counsel. The clerk of this court notified Bailey of her right to file pro se points of appeal, which she has done. We affirm the termination of Bailey's parental rights and grant her counsel's motion to withdraw.
Standard of Review
Termination of parental rights is a two-step process requiring a determination that the parent is unfit, and that termination is in the best interest of the children. Griffin v. Arkansas Dep't of Human Servs. , 2017 Ark. App. 635. The first step requires proof of one or more statutory grounds for termination; the second step requires that termination be in the children's best interest. Id. Each of these requires proof by clear and convincing evidence, which is the degree of proof that will produce in the finder of fact a firm conviction regarding the allegation sought to be established. Id.
We review termination-of-parental-rights cases de novo, but we will not reverse the circuit court's ruling unless its findings are clearly erroneous. Gonzalez v. Arkansas Dep't of Human Servs. , 2018 Ark. App. 425, 555 S.W.3d 915. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, we have noted that in matters involving the welfare of young children, we will give great weight to the circuit court's personal observations. Id.
Case History
Bailey was pulled over in the early morning hours of July 11, 2016, for driving with no headlights. She gave the officers a false name; she could not provide vehicle registration or insurance; and the officers observed SB unrestrained in the back seat of the vehicle. Bailey became combative when the officers attempted to take her into custody, running into traffic with SB and using the child as a shield. Bailey was arrested and charged with second-degree endangering the welfare of a minor, obstruction, driving without headlights, and DWI. She stated she was four months pregnant, and while she asserted she was drug free, a drug screen revealed PCP in her system. Bailey refused to give officers any information about SB or relatives who could take care of SB; therefore, SB was placed in the custody of the Arkansas Department of Human Services (DHS).
DHS filed a petition for emergency custody and dependency-neglect on July 13, 2016, and an order granting custody to DHS was entered the same day. Bailey stipulated to probable cause, and a probable-cause order was entered on July 20, 2016. SB was adjudicated dependent-neglected in an order entered on August 30, 2016, due to Bailey's neglect and parental unfitness. Concurrent goals of the case were reunification with Bailey or a permanent custodian, including permanent custody with a fit and willing relative. In a review order entered on December 14, 2016, it was noted SB was doing well in a provisional foster home with her maternal cousin; the concurrent goals of the case remained reunification with Bailey or obtaining a permanent custodian. The review order noted Bailey was partially compliant with the case plan and court orders-although she had completed parenting classes and was appropriate overall with SB during visitation, she was not cooperative with DHS at times, had missed several visitations, and even though currently pregnant, continued to test positive for illegal substances, specifically PCP and cocaine.
Bailey gave birth to KW in December 2016. KW was removed from Bailey's custody because both KW and Bailey tested positive for PCP at the time of his birth. A petition for emergency custody of KW and an order granting emergency custody to DHS were filed on December 19, 2016. Bailey stipulated to probable cause due to the positive tests for PCP, and a probable-cause order was entered on December 22, 2016. In an order entered on February 3, 2017, KW was adjudicated dependent-neglected based on Bailey's stipulation of neglect and parental unfitness, specifically that she tested positive for PCP at KW's birth; the circuit court also ordered SB's and KW's cases to be consolidated.
In a review order entered on March 30, 2017, the circuit court continued custody of SB and KW with DHS, finding Bailey had partially complied with the case plan and court orders. The circuit court noted Bailey had been admitted to two inpatient substance-abuse-treatment centers, but she had completed only two weeks of treatment at one treatment center, had tested positive for PCP and cocaine immediately before entering the second treatment center, and was involuntarily discharged from the second treatment center due to disputes with other residents. Though Bailey had missed several visitations with her children before she was admitted to the second treatment center, she attended more visitations than she missed, and most of her interactions with the children were appropriate.
In a permanency-planning order entered on July 17, 2017, the circuit court revised the children's case-plan goals to first attempt to obtain a permanent custodian, including permanent custody with a fit and willing relative; the children were currently being cared for by a relative willing to pursue permanent custody. The concurrent goal was to obtain a guardianship. The circuit court found Bailey had partially complied with the case plan and court orders but concluded she was not making significant measurable progress and was not diligently working toward reunification. Specifically, the circuit court noted Bailey's hair-shaft drug screen that was positive for PCP; her refusal to submit to drug screens on five occasions; the abnormal temperature of another drug screen; and the fact Bailey was in her third inpatient substance-abuse-treatment program. However, in a review order entered on August 11, 2017, the circuit court found that while the children could not be safely returned to Bailey, she had substantially complied with the case plan and court orders and had demonstrated progress toward the case-plan goals.
In a consolidated amended fifteen-month permanency-planning order for SB and review order for KW, the circuit court changed the goal for both children to adoption, noting that the relative caring for the children was no longer willing to pursue permanent custody or guardianship, and that termination of parental rights was in the children's best interest. The circuit court further found Bailey was not complying with the case plan and the orders of the court, and she was not diligently working toward reunification.
DHS filed a petition to terminate parental rights on February 15, 2018, alleging three bases applicable to Bailey-(1) the juveniles had been adjudicated dependent-neglected and had continued out of Bailey's custody for a period of twelve months, and despite a meaningful effort by DHS to correct the conditions causing removal, the conditions had not been remedied ( Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) ); (2) other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate placement of the juveniles in Bailey's custody is contrary to the juveniles' health, safety, or welfare and that, despite the offer of appropriate family services, Bailey had manifested the incapacity or indifference to remedy the subsequent issues or factors or to rehabilitate the circumstances preventing placement of the juveniles in Bailey's custody ( Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) ); and (3) the juveniles were subjected to aggravated circumstances ( Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A) ). After a hearing on the termination petition, the circuit court found it was in the children's best interest for Bailey's parental rights to be terminated and granted the termination on the grounds of twelve months failure to remedy and aggravated circumstances. A termination order to this effect was entered on April 11, 2018.
At the termination hearing, Bailey testified that it had been "a while" since she had used illegal drugs; she knew she had a drug problem, specifically with PCP; she had completed inpatient drug treatment and had begun outpatient drug treatment, although she had not yet completed it; her visits with the children were "swell"; and she believed the children could be returned to her that day because she had completed the majority of what the circuit court had asked her to do. However, Bailey could not remember her sobriety day, and although she asserted she was working on a twelve-step program and was on step two, she could not tell the circuit court what either step one or step two were. Bailey admitted she had submitted to five drug screens since the last hearing, all of which were positive for PCP; she stated that while she was then approximately four months pregnant, she was not worried that her continued use of PCP would affect her pregnancy. Bailey eventually admitted she had last used PCP three days before the termination hearing, and if the court tested her, she would test positive for PCP.
DHS caseworker Lauren Hill testified she had attempted to obtain fifty drug screens from Bailey; she was able to obtain specimens for forty-one screens; twenty were positive; nineteen were negative; two were negative but had abnormal temperatures; and the last completed drug screen was positive for PCP but was determined to be diluted. Hill further testified that out of 171 possible visitations, Bailey made 112. Hill was troubled with Bailey's continued use of PCP throughout the case, including the fact KW was born with PCP in his system and that Bailey was continuing to use PCP during her current pregnancy. Hill explained she was concerned that if the children were returned to Bailey's custody, they would be in an unstable and unpredictable environment and exposed to Bailey's continued drug use.
Danyetta Pride, the DHS adoption specialist assigned to the case, testified she had run a potential adoption data-matching list for both children, and there were 435 approved adoptive homes desiring children with the characteristics of SB and KW. Pride stated she did not know of any issues that would be a barrier to the children being adopted.
Adverse Rulings
The sole adverse ruling was the termination of Bailey's parental rights. While the circuit court terminated Bailey's parental rights on two bases, there need be proof of only one ground to support the circuit court's termination of parental rights. Allison v. ArkansasDep't of Human Servs. , 2017 Ark. App. 424. DHS proved by clear and convincing evidence the children had been out of Bailey's custody for more than twelve months and that, despite meaningful efforts by DHS to correct the conditions that caused removal, the conditions had not been corrected. The circuit court's termination on this ground was not clearly erroneous. The reasons SB and KW were taken into DHS custody were due to Bailey's illegal drug use. Bailey tested positive for PCP at the time SB was taken into custody, and KW was taken into custody because both he and Bailey tested positive for PCP at his birth. During this case, Bailey continued to test positive on numerous occasions for several illegal drugs, including PCP, despite having completed inpatient drug treatment (after three attempts) and partially completing outpatient drug treatment. Bailey's own testimony at the termination hearing revealed she had used PCP a mere three days before the termination hearing, despite being pregnant with her third child. Bailey informed the circuit court she had no concern that her continued use of PCP would have a detrimental effect on her pregnancy. Clearly, Bailey has been unable to correct the issue that caused removal of the children-her continued drug use.
The circuit court also found it was in the children's best interest to terminate Bailey's parental rights. A best-interest finding must be based on the trial court's consideration of at least two factors: (1) the likelihood that the child will be adopted if parental rights are terminated and (2) the potential harm caused by continuing contact with the parent. Baxter v. Arkansas Dep't of Human Servs. , 2017 Ark. App. 508. It is the overall evidence-not proof of each factor-that must demonstrate termination is in the child's best interest. Id.
As to the adoptability factor, Danyetta Pride testified the children were adoptable, with 435 families desiring to adopt children with their characteristics. Pride knew of no issues that would prevent the children from being adopted. This evidence was unrebutted.
Regarding the potential-harm factor, Bailey's own testimony indicated she had been using PCP throughout the pendency of the case, and she was still using it, even though she was currently pregnant again. The potential-harm analysis is to be conducted in broad terms-the circuit court must consider harm to the children's health and safety that might occur from continued contact with the parent; there is no requirement to find actual harm would result or to identify the potential harm. Barnes v. Arkansas Dep't of Human Servs. , 2017 Ark. App. 525. Bailey's continued drug use is enough to prove potential harm. Smith v. Arkansas Dep't of Human Servs. , 2018 Ark. App. 380, 555 S.W.3d 896.
Pro Se Points
Bailey has also filed pro se points. She acknowledges her drug addiction caused her to lose custody of her children, but she asserts she has "made the mandatory steps" necessary to be drug free and be a mother to her children. Bailey requests that our court reconsider the termination of her parental rights because she loves her kids and misses them. This does not provide an arguably meritorious basis for appeal. As discussed above, the circuit court was not clearly erroneous in its determination that DHS presented clear and convincing evidence of a ground for termination and that it was in the children's best interest for Bailey's parental rights to be terminated. Bailey is essentially asking this court to reweigh the evidence, which we will not do. Baxter, supra.
Summary
Counsel concludes that the record clearly and convincingly supports the decision of the circuit court to terminate Bailey's parental rights, and any argument challenging the statutory grounds or challenging the best-interest finding would be wholly frivolous. We agree the appeal is without merit, affirm the termination of Bailey's parental rights, and grant counsel's motion to withdraw.
Affirmed; motion to withdraw granted.
Gruber, C.J., and Murphy, J., agree.
The parental rights of SB's father, Andrea Graves, were also terminated; he is not a party to this appeal. | [
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ROBIN F. WYNNE, Associate Justice
On June 7, 2018, petitioner Xavier Redus filed in the trial court a pro se petition to correct an illegal sentence under Arkansas Code Annotated section 16-90-111 (Repl. 2016). The trial court denied the petition. Redus did not timely file a notice of appeal, and now before us is his pro se motion for rule on clerk seeking to proceed with the appeal. As the notice of appeal was untimely, we treat the motion as a motion for belated appeal. Latham v. State , 2018 Ark. 44, 2018 WL 897481.
We need not consider Redus's reasons for not filing a timely notice of appeal because it is clear from the record that Redus's petition was wholly without merit, and he could not prevail on appeal. Fischer v. State , 2017 Ark. 338, 532 S.W.3d 40 (The merits of a motion for rule on clerk to file a record belatedly were not considered as it was clear from the record the petitioner could not prevail on appeal because he had failed to argue that his sentence was illegal on its face pursuant to section 16-90-111.). Accordingly, Redus's motion to proceed with an appeal is denied.
This court will not reverse the trial court's decision granting or denying postconviction relief unless it is clearly erroneous. Fischer , 2017 Ark. 338, 532 S.W.3d 40. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. An appeal from an order that denied a petition for postconviction relief, including a petition filed under section 16-90-111, will not be permitted to go forward when it is clear that there would be no merit to the appeal. Gardner v. State , 2017 Ark. 230, 2017 WL 3300528 ; see also Justus v. State , 2012 Ark. 91, 2012 WL 664259.
In 2005, Redus entered a negotiated plea of guilty to eight counts of aggravated robbery and eight counts of theft of property, for which a cumulative sentence of 336 months' imprisonment was imposed. In 2011, Redus filed in the trial court a petition to correct an illegal sentence under section 16-90-111 (Repl. 2006). He contended, among other allegations, that his sentence was illegal because it exceeded the presumptive sentences for the crimes of which he was convicted, the habitual-offender enhancement was not properly applied to his sentence, and he was denied effective assistance of counsel. The trial court denied the petition, and Redus appealed. We dismissed Redus's appeal from the order because there was no ground stated in the petition that established that the sentence imposed in 2005 was illegal. Redus v. State , 2013 Ark. 9, 2013 WL 7851469 (per curiam).
In his 2018 petition, Redus again claimed that his sentence exceeded the presumptive sentences, the habitual-offender enhancement was misapplied to his sentence, and he was denied effective assistance of counsel. He also argued that the State did not abide by the sentencing guidelines and that the issue of whether he was a habitual offender should have been decided by a jury.
Section 16-90-111(a) provides authority to a trial court to correct an illegal sentence at any time. Jenkins v. State , 2017 Ark. 288, 529 S.W.3d 236. An illegal sentence is one that is illegal on its face. Jackson v. State , 2018 Ark. 209, 549 S.W.3d 346. A sentence is illegal on its face when it is void because it is beyond the trial court's authority to impose and gives rise to a question of subject-matter jurisdiction. Swift v. State , 2018 Ark. 74, 540 S.W.3d 288. Sentencing is entirely a matter of statute in Arkansas, and a sentence is illegal when it exceeds the statutory maximum, as set out by statute, for the offense for which the defendant was convicted. Fischer , 2017 Ark. 338, 532 S.W.3d 40.
The petitioner seeking relief under section 16-90-111(a) carries the burden to demonstrate that his or her sentence was illegal. Latham , 2018 Ark. 44. Therefore, Redus was entitled to no relief under section 16-90-111 unless he established that the judgment in his case was illegal on its face. This court has held that any claim that the sentence was imposed in an illegal manner, as opposed to a claim that the sentence is facially illegal, is governed by the time limitations set out in Arkansas Rule of Criminal Procedure 37.2(c) (2017). See Stewart v. State , 2018 Ark. 166, 546 S.W.3d 472. Because Redus's allegations in this petition went behind the face of the judgment and did not implicate the facial validity of the judgment, he was obligated under Rule 37.2(c)(1) to pursue those claims within ninety days of the date that the judgment was entered following his guilty plea in 2005. The time limitations imposed in Rule 37.2(c) are mandatory. Jackson , 2018 Ark. 209, 549 S.W.3d 346. If the time for relief under Rule 37.2 has expired, section 16-90-111 provides no relief for claims that a sentence was illegally imposed; that is, a petition under section 16-90-111 is not a substitute for filing a timely petition under Rule 37.1. See Stewart , 2018 Ark. 166, 546 S.W.3d 472.
When this court dismissed Redus's appeal from the petition he filed in 2011, it was noted that Redus had pleaded guilty to eight counts of aggravated robbery, a Y felony. See Ark. Code Ann. § 5-12-103 (Repl. 2005). He was sentenced as a habitual offender on each count to 336 months' imprisonment, with all sentences to run concurrently. The statutory range for a habitual offender on each count was ten years to life. See Ark. Code Ann. § 5-4-501(b)(2)(A) (Repl. 1997). He also pleaded guilty to eight counts of theft of property, an A misdemeanor under Arkansas Code Annotated section 5-36-103(b)(4) (Supp.
2003), for which he received 12 months' imprisonment. The sentence for an A misdemeanor may not exceed one year. See Ark. Code Ann. § 5-4-401(b)(1) (Repl. 1997). The sentences for the misdemeanors were merged with the sentences for aggravated robbery, as required by Arkansas Code Annotated section 5-4-403(c). Thus, we have already held that Redus's sentence was clearly within the prescribed statutory range and was not illegal. Redus , 2013 Ark. 9. The trial court's denial of this most recent claim for relief under section 16-90-111 was not error.
Motion treated as a motion for belated appeal and denied.
Hart, J., dissents.
Josephine Linker Hart, Justice, dissenting.
I dissent for the reasons outlined in Gray v. State , 2018 Ark. 79, 540 S.W.3d 658 (Hart, J., dissenting). The only matter properly before us at this juncture is Mr. Redus's motion for belated appeal. This court does not yet have jurisdiction to rule on the merits of Mr. Redus's appeal. | [
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COURTNEY HUDSON GOODSON, Associate Justice
Petitioner Larry Rayford, who was convicted in 1994 of capital murder, brings this pro se petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. It is the fourth such petition filed by Rayford in this court. In the petition and an amendment that he filed to it, Rayford contends that he is entitled to issuance of the writ by the trial court on the ground that he has recently learned that Dr. W.R. Oglesby was not a disinterested person at the time Dr. Oglesby gave his opinion that Rayford was competent to stand trial. Rayford argues that Dr. Oglesby was the psychiatrist for the Arkansas Department of Correction (ADC) and Delta Counseling Associates when he declared that Rayford was competent and that he should have been evaluated by a doctor "outside" the ADC. Rayford asserts that the judgment would not have been rendered had he been aware that Dr. Oglesby had been retained by the ADC.
Rayford's petition is properly filed in this court. His conviction for capital murder and sentence to life imprisonment without parole were affirmed on appeal. Rayford v. State , 326 Ark. 656, 934 S.W.2d 496 (1996). The trial court cannot entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal unless this court grants permission. Newman v. State , 2009 Ark. 539, 354 S.W.3d 61. A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore , 341 Ark. 397, 17 S.W.3d 87 (2000). Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Green v. State , 2016 Ark. 386, 502 S.W.3d 524 ; Westerman v. State , 2015 Ark. 69, 456 S.W.3d 374 ; Roberts v. State , 2013 Ark. 56, 425 S.W.3d 771. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Newman , 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts , 2013 Ark. 56, 425 S.W.3d 771.
The writ is allowed under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State , 2012 Ark. 177, 403 S.W.3d 38. A court is not required to accept the allegations in a petition for writ of error coram nobis at face value. Green , 2016 Ark. 386, 502 S.W.3d 524.
Rayford's claim for issuance of the writ is that he was incompetent to stand trial. His sole basis for the allegation is that Dr. Oglesby was associated with the ADC, and an independent doctor should have conducted his mental evaluation. Rayford asks this court to take judicial notice that a circuit judge ordered in a recent case that the competency of the prison inmate under sentence of death should be determined by a psychiatrist not retained by the ADC. Rayford does not provide any substantiation for the suggestion that a doctor other than Dr. Oglesby would have declared him incompetent and prevented rendition of the judgment. He also offers no factual support for the assertions that he was prejudiced by the alleged association between Dr. Oglesby and the ADC or that the facts of his case are comparable to those in the other inmate's case. The burden is on the petitioner in the application for coram nobis relief to make a full disclosure of specific facts relied upon and not to merely state conclusions as to the nature of such facts. McCullough v. State , 2017 Ark. 292, 528 S.W.3d 833, reh'g denied Dec. 14, 2017. In short, the sentencing court had before it at the time of Rayford's trial the issue of whether Rayford was competent to stand trial, and Rayford has failed to show that there existed some fact pertaining to the issue of insanity at the time of trial that would have prevented rendition of the judgment had it been known to the trial court and that, through no negligence or fault of his own, was not brought forward before rendition of the judgment. Accordingly, he has not established a ground for the writ. See Westerman , 2015 Ark. 69, 456 S.W.3d 374, 377 (affirming the denial of coram nobis relief when the petitioner in the coram nobis proceeding who had entered a plea of guilty had raised the issue of his competence before he entered his plea, and the petitioner had failed to show that there existed some fact concerning his competence at the time of the plea that would have prevented rendition of the judgment had it been known to the trial court).
Petition denied.
See Rayford v. State , 2011 Ark. 86, 2011 WL 693584 (per curiam); Rayford v. State , CR-96-428 (Ark. Feb. 14, 2008) (unpublished per curiam); CR-96-428 (Ark. Mar. 4, 2004) (unpublished per curiam). | [
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N. MARK KLAPPENBACH, Judge
Appellant Charles Randall Davis was charged with the first-degree murder of Jeff Foster. A Poinsett County jury convicted Davis of the lesser-included offense of manslaughter, and he was sentenced to ten years in prison. On appeal, Davis argues that the circuit court abused its discretion in admitting the testimony of three witnesses over his hearsay and confrontation-clause objections. We affirm.
A pretrial hearing was held regarding the admissibility of the testimony of Bennie Adams, Kathleen Wilson, and Ira Vail. Adams testified that about a week before Foster's death, Foster called and said that Davis was threatening to kill him, that he was "scared to death," and that if he ended up dead, Adams should have the police investigate Davis. Adams said that Foster was crying during this conversation. Kathleen Wilson testified that about a week or two before his death, Foster came to her home and told her that Davis had choked him, put a knife to his throat, and thrown him out of Davis's trailer. Wilson said that this conversation occurred right after the incident, that Foster acted kind of nervous, and that Foster told her he was scared. Wilson testified that Foster told her on another occasion that Davis had threatened to kill him during a disagreement over their dogs. Vail was not present at the pretrial hearing, but the State expected him to testify that shortly before Foster's death, Foster told him that Davis had recently threatened to kill him and had put a knife to his throat.
The State argued that it intended to offer these statements to show Davis's motive and intent when he shot Foster. The parties disputed whether the statements were testimonial and therefore barred by the Sixth Amendment and whether they were admissible under Arkansas Rule of Evidence 803(3), an exception to the hearsay rule for a statement of the declarant's then existing state of mind. The court ruled that the statements were not testimonial and that they were admissible under Rule 803(3).
At the jury trial, Deputy Wilbur Hewitt of the Poinsett County Sheriff's Department testified that he responded to a report that someone heard a gunshot from the camper trailer where Davis lived. When Hewitt arrived at the scene he saw a body lying near the doorway and Davis standing inside the trailer. Hewitt instructed Davis to come out, and Davis made the comment, "I don't think it will do me any good to say this, but it was an accident." Hewitt said that Davis cooperated with him, and he did not suspect that Davis had been drinking. Investigator Ron Martin testified that Foster's body was wrapped in a comforter and that there were tracks through the blood on the floor. He saw a considerable amount of blood in the shower and a bloody rag, mop, and bucket. A single-shot .410 shotgun was found in a closed case on the floor.
Martin waited to interview Davis until the next afternoon because his blood-alcohol content was tested at 0.17 percent after his arrest. Davis told him that he and Foster had been drinking in the camper trailer when Foster began raising his voice and being "obnoxious." Davis said that he was afraid of Foster and wanted him to leave, but Foster was not leaving fast enough. Davis said that he started poking Foster with the shotgun, trying to push him out the door, and the gun "just went off." Davis claimed that he did not know the gun was loaded and that he did not remember cocking the hammer or pulling the trigger. Davis said that he wrapped Foster's body in the comforter and planned to take it to Foster's trailer. He told Martin that he was cleaning up because he was scared and did not know what to do, but he knew he should have called 911 instead.
Dr. Frank Peretti testified that Foster died as the result of a single gunshot wound to the neck and head. Dr. Peretti said that the entrance wound was situated in the midline of the back of Foster's neck and that it was a contact wound, meaning the muzzle of the gun was pressed firmly against the skin when it discharged. Dr. Peretti said that Foster's blood showed that he had had "quite a bit to drink." A forensic firearm-and-toolmark examiner from the Arkansas State Crime Lab testified that the shotgun is designed to discharge only after the hammer has been pulled back and the trigger has been pulled, and it functioned as designed when she test-fired it.
Ira Vail testified that on the day before Foster's death, Foster was upset about something and was "kind of crying." When Vail asked what was wrong, Foster told him that Davis had threatened his life approximately one week earlier and then had put a knife to his throat and threatened to kill him the night before. Adams and Wilson testified about the threats Foster relayed to them. All three of these witnesses were questioned on cross-examination about the fact that Foster did not stay away from Davis after the alleged threats. Davis rested without putting on a case, and the jury found him guilty of the lesser-included offense of manslaughter.
Davis first argues that Foster's statements to Adams, Wilson, and Vail were hearsay and not admissible under Rule 803(3). Arkansas Rule of Evidence 803(3) provides that the following is not excluded by the hearsay rule:
Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
We review evidentiary rulings under an abuse-of-discretion standard, and we do not reverse absent a manifest abuse of that discretion and a showing of prejudice. Dickey v. State , 2016 Ark. 66, 483 S.W.3d 287. Davis argues that Foster's statements to the witnesses that Davis had threatened him were inadmissible under Rule 803(3) because they were statements of Foster's memory of past events, not his then existing emotion or state of mind. Davis contends that he was prejudiced by these witnesses' testimony because it was the only evidence that he had threatened Foster and was a "centerpiece" of the prosecution. We agree with the State, however, that even if the circuit court erred in admitting this testimony, any error was harmless.
An error in the admission of hearsay evidence does not automatically result in a reversal if the error was harmless. Proctor v. State , 349 Ark. 648, 79 S.W.3d 370 (2002). When evidence of guilt is overwhelming and the error slight, we can declare the error harmless and affirm. Id. To determine if the error is slight, we look to see whether the defendant was prejudiced by the erroneously admitted evidence. Rodriguez v. State , 372 Ark. 335, 276 S.W.3d 208 (2008). Prejudice is not presumed, and this court will not reverse a conviction absent a showing of prejudice by the defendant. Id.
As the jury was instructed here, a person commits manslaughter if the person recklessly causes the death of another person. Ark. Code Ann. § 5-10-104(a)(3) (Repl. 2013). "A person acts recklessly with respect to attendant circumstances or a result of his or her conduct when the person consciously disregards a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur." Ark. Code Ann. § 5-2-202(3)(A) (Repl. 2013). "The risk must be of a nature and degree that disregard of the risk constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor's situation." Ark. Code Ann. § 5-2-202(3)(B).
As the State notes, it is undisputed that Davis shot and killed Foster. Davis told police that he was poking Foster with the shotgun when it fired. The evidence showed that Davis, while intoxicated, was pressing a loaded shotgun firmly against the back of Foster's neck when the shotgun discharged and that the shotgun discharges when the hammer has been pulled back and the trigger is pulled. This evidence is overwhelming proof that, at a minimum, Davis recklessly caused Foster's death. Although the testimony of Adams, Wilson, and Vail provided evidence that Davis intended to kill Foster, the jury acquitted him of causing Foster's death either with the purpose to do so or knowingly under circumstances manifesting extreme indifference to the value of human life. We hold that any error in the admission of the testimony of Adams, Wilson, and Vail was harmless as to the offense of manslaughter.
Davis also argues that the circuit court violated his Sixth Amendment right to confront witnesses against him by admitting Adams's testimony that Foster said that Davis had threatened to kill him and to have the police investigate Davis if Foster ended up dead. A Confrontation Clause violation is subject to harmless-error analysis, meaning harmless beyond a reasonable doubt. Hughes v. State , 2012 Ark. App. 586. Whether denial of the right to confront a witness is harmless error depends on a host of factors, including the importance of the witness's testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the prosecution's case. Id.
Davis argues that this error was not harmless because Adams's testimony was unique, and the statement regarding having the police investigate Davis was prophetic. We disagree. It was undisputed that Davis caused Foster's death; the only issue at trial was whether Davis did so purposely, knowingly, or recklessly. Testimony that Foster predicted his death would be caused by Davis could be important in proving that Davis intentionally killed Foster, but here the jury found that Davis acted only recklessly. Even without Adams's testimony, the evidence of Davis's guilt as to manslaughter is overwhelming and renders any error in permitting the testimony harmless beyond a reasonable doubt. We affirm the conviction.
Affirmed.
Gladwin and Brown, JJ., agree.
Vail testified that his conversation with Foster occurred on Thursday and that Foster was killed the next day. However, the record reflects that Foster was killed on a Saturday.
Unlike his testimony at the pretrial hearing, Adams did not testify at trial that Foster "said he was scared to death." Wilson's testimony at trial did not include her earlier testimony that Foster had told her about the knife incident right after it happened and that Foster had told her that he was "scared." | [
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Karen R. Baker, Justice, dissenting.
I must dissent from the majority's decision to affirm Fletcher's sentence of life imprisonment and grant counsel's motion to withdraw. I would order rebriefing and deny the motion to withdraw.
As explained by the majority, Fletcher's counsel has filed a no-merit brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and a motion requesting to be relieved a counsel. Pursuant to Anders , we are required "after a full examination of all the proceedings, to decide whether the case is wholly frivolous." Id. at 744, 87 S.Ct. 1396. If we find "any of the legal points arguable on their merits (and therefore not frivolous) [we] must, prior to decision, afford the indigent the assistance of counsel to argue the appeal." Id. The purpose of this procedure is to "assure penniless defendants the same rights and opportunities on appeal-as nearly as is practicable-as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel." Id. at 745, 87 S.Ct. 1396. Thus, the test is not whether counsel believes that the circuit court committed no reversible error; rather, it is whether the arguments to be raised on appeal would be "wholly frivolous."
Accordingly, based on the record before us, I disagree with the majority's decision to affirm without the benefit of adversary briefing. Fletcher's claim of evidentiary error regarding the admission of T.H.'s drawing does not rise to the level of a "wholly frivolous" argument and requires rebriefing. Stated differently, I am not convinced after examining the record that this evidentiary issue is one that may be decided without adversary presentation.
Because this issue deserves adversary presentation, I would deny counsel's motion to withdraw and order rebriefing in adversary form. Therefore, I must respectfully dissent.
Josephine Linker Hart, Justice, dissenting.
This case should be remanded for a merit brief on the admission of the drawing issue. Neither the brief nor the majority's disposition comports with the dictates of Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and its progeny. Filing an Anders brief is permissible only when an attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client's appeal, and after having identified all of the potential adverse rulings, the attorney determines that an appeal from those rulings would be "frivolous." Kou Her v. State , 2015 Ark. 91 at 8-9, 457 S.W.3d 659, 664 (citing Penson v. Ohio , 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) ). In an Anders case, the standard is not whether the appellant has an argument that will result in a reversal of his or her conviction; it is whether it would be wholly frivolous-essentially unethical-to argue a particular point. An argument on the merits of whether the admission of a graphic depiction of a horrendous murder that was created by a twelve-year-old witness, at least a week after the incident, at the behest of a "counselor," would not be frivolous.
The following colloquy took place at trial.
THE STATE : I am going to offer this as Exhibit Number 38. It's a hand-drawn picture by this witness, who I expect to testify that he drew the picture describing what he saw.
THE DEFENSE : My objection is that he has already described what he saw. This was something prepared out of the courtroom. I was not around when it was done. This is not to SCALE . This is simply a child's rendering of what he has already said and I object to it being introduced.
THE COURT : WHEN was this prepared?
THE STATE : April 21, 2015. It was about a week after the INCIDENT .
THE DEFENSE : It was not immediately afterwards. Again, it was prepared out of the courtroom for the purpose of being used as evidence. I wasn't there when it was done, so I don't know who coached him, who talked to them about it or any of that.
THE COURT : Did you get a copy of it?
THE DEFENSE : Yes. WE did get a copy, but again it was drawn out of the courtroom. It was not done to the jury. He has described the entire incident, I thought he did a good job describing it. This, I think, is prejudicial.
THE COURT : I OVERRULE your objection, and will allow it.
[ TESTIMONY Continues.]
T.H.: I RECOGNIZE the picture marked as Exhibit Number 38. I recall drawing the picture when the police questioned me. I did not DRAW it when I gave my statement to the police. I [drew it] when I was at the counselor. I did the scene after the incident happened. It is what I remembered of the incident.
[Whereupon State's Exhibit Number 38 was admitted over DEFENDANT'S renewed objection, and published to the Jury]
First, the majority seems to misunderstand what is meant by judicial discretion. Judicial discretion means
discretion bounded by rules and principles of law, and not arbitrary, capricious, or unrestrained. It is not the indulgence of judicial whim, but the exercise of judicial judgment, based on facts and guided by law or the equitable decision or what is just and proper under the circumstances. It is legal discretion to be exercised in discerning the course prescribed by law and is not to give effect to the will of the judge, but to that of the law.
Black's Law Dictionary 323 (6th ed. 1990). In the case before us, the circuit court asked when the drawing was prepared and whether the defense was provided a copy. When it was informed that the drawing was prepared "about a week after the incident," the circuit court did not have the factual predicate to decide that it fit within a hearsay exception found in Rule 803 of the Arkansas Rules of Evidence. Stated another way, the so-called "discretion" that the law affords the circuit court extends only to determining whether there exists a factual basis for finding an exception to the prohibition in our rules of evidence against admitting hearsay. Accordingly, it would not be "wholly frivolous" to argue that the circuit court erred in admitting the drawing over a hearsay objection. The same rationale exists for an argument that the drawing was cumulative and impermissible bolstering of T.H.'s testimony with a prior consistent graphic statement.
Second, it is not proper to conclude that it would be "wholly frivolous" to make a merit-based argument because there is a wide range of theories about the admissibility of the drawing. As shown above, Fletcher's trial counsel argued that the drawing was inadmissible hearsay, cumulative, and impermissible bolstering with a prior consistent graphic statement. Fletcher's appellate attorney opined that admission of the drawing was error, but the error was harmless. The attorney general's office opined that it was not error to admit the drawing because it was "helpful" to the witness when he testified. The majority asserts that it was not error to admit the drawing because this case is controlled by Bly v. State , 267 Ark. 613, 593 S.W.2d 450 (1980). Suffice it to say that submitting a merit brief would not be wholly frivolous.
Third, under the Anders formulation, Fletcher's appellate counsel did not satisfy the requirement to explain why an argument concerning an adverse ruling would be wholly without merit by anticipating that this court would find the error harmless. Harmless-error analysis is undertaken by the appellate court, not the appellate attorney in an Anders brief. See Kou Her , 2015 Ark. 91, 457 S.W.3d 659 (discussing Penson , 488 U.S. 75, 109 S.Ct. 346 ). For this reason alone, this court should have denied appellate counsel's motion to withdraw. | [
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JOSEPHINE LINKER HART, Associate Justice
Conley appeals the June 9, 2017 order from Pulaski County Circuit Court denying his third amended motion for class certification. Our jurisdiction is proper pursuant to Ark. R. App. P. - Civil 2(a)(9). On appeal, Conley asks us to remand arguing that the trial court abused its discretion by not providing appellants with specific findings of fact and conclusions of law thereon, as Conley requested pursuant to Ark. R. Civ. P. 52, in its order denying class certification. Alternatively, if the circuit court's order is sufficient, Conley asks us to reverse the circuit court's decision because, contrary to the conclusions contained in the order, he has made prima facie showings of commonality and typicality. Boll Weevil counters that the circuit court's order should be affirmed because it found that the proposed class failed to satisfy commonality or typicality, and that Rule 52 thus has no application because it denied the motion for class certification. Additionally, as a separate basis for affirming the circuit court's order, Boll Weevil argues that the proposed classes are not "ascertainable." We conclude that the circuit court was required to enter specific findings of fact and conclusions of law, even in denying class certification, and that it would be advisory to address the parties' remaining arguments at this juncture. We reverse and remand for further proceedings consistent with this opinion.
I. Background
On June 2, 2016, Conley filed a class-action complaint against Boll Weevil in Pulaski County Circuit Court. Conley's complaint alleged that Boll Weevil was charging excessive interest in violation of the Arkansas Constitution and the Arkansas Deceptive Trade Practices Act. For its general factual underpinning, Conley's complaint alleged that Boll Weevil engages in "pawn transactions," a typical example of which would involve a consumer delivering physical possession, control, and (when applicable) title to his or her property to Boll Weevil. In exchange, Boll Weevil extends a sum of money equal to a percentage of 10-30% of the property's actual value, with monthly interest accruing on the entire sum at 20.25% for each month the money is not repaid in full. The consumer can re-acquire the property by paying to Boll Weevil the money advanced and interest at the end of the term of the agreement. Furthermore, the term can be extended if the consumer elects to extend and makes all interest payments due before the end of the term. However, if the consumer ever defaults on the agreement, or if the consumer otherwise chooses not to make the payments contemplated by the pawn transaction, the property is automatically forfeited to Boll Weevil.
On April 18, 2017, Conley filed a third amended motion for class certification asking the trial court to certify two classes consisting of Boll Weevil's pawn transaction customers. The two proposed classes were defined as follows:
Class A: All consumers who have entered into pawn transactions with Boll Weevil since June 2, 2011 continuing up through and until judgment may be rendered in this matter in which: 1) the term of the pawn transaction (listed as the "Maturity Date" on the pawn transaction agreement) is less than one (1) year; and 2) the consumer has made a pawn service fee payment (listed as "Amount Financed" on the pawn transaction agreement) within one (1) year of entering a pawn transaction with Boll Weevil.
Class B: All consumers who have entered into pawn transactions with Boll Weevil since June 2, 2011 continuing up through and until judgment may be rendered in this matter in which: 1) the term of the pawn transaction (listed as the "Maturity Date" on the pawn transaction agreement) is less than one (1) year; and 2) the pawn service fee (listed as the "Finance Charge" on the pawn transaction agreement) amounts to more than 17% of the amount dispersed to the consumer by Boll Weevil (listed as the "Amount Financed" on the pawn transaction agreement).
Also on April 18, 2017, Conley filed a request pursuant to Ark. R. Civ. P. 23 and Ark. R. Civ. P. 52 for "for specific findings of fact and conclusions of law with respect to Plaintiff's request for class certification, the requirements for class certification in Rule 23(a) and (b), and any order entered by the Court granting or denying class certification."
On June 9, 2017, the circuit court entered an order denying class certification. The circuit court's order was very limited, providing as follows:
1. The proposed class does meet the requirement that the class be numerous to the extent that joinder of all members is impracticable.
2. The proposed class lacks commonality in that there are no questions of law or fact common to the class.
3. The proposed class lacks typicality in that the claims or defenses of the representative parties are not typical of the claims or defenses of the class.
4. By failing to meet each of the prerequisites for a class certification, Plaintiff's Third Amended Motion for Class Certification should be and hereby is denied.
The circuit court's order made no mention of adequacy, predominance, or superiority. Additionally, the circuit court's order did not in any manner specify which of the two proposed classes any of these conclusions would refer to.
On June 9, 2017, Conley filed an Objection to the Court Order Denying Plaintiff's Motion for Class Certification. The circuit court did not respond to the objection, the motion was thus deemed denied, and Conley filed a notice of appeal.
II. Applicable Authority
To be certifiable, a proposed class must satisfy the "six factors" set out at Ark. R. Civ. P. 23(a)-(b). Rule 23 provides in relevant part as follows:
(a) Prerequisites to Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties and their counsel will fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. At an early practicable time after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. For purposes of this subdivision, "practicable" means reasonably capable of being accomplished. An order under this section may be altered or amended at any time before the court enters final judgment. An order certifying a class action must define the class and the class claims, issues, or defenses.
...
Ark. R. Civ. P. 23 (a)-(b) (emphases added). Additionally, a proposed class must be "ascertainable." Regarding ascertainability, this court has held as follows:
Before a circuit court may consider whether a class may be certified, or in other words, whether the six criteria for class certification under Ark. R. Civ. P. 23 have been met, a class must exist. The standard that must be met in determining whether a class exists is not explicitly set out in Rule 23. A class must be susceptible to precise definition. Id. Before a class may be certified under Rule 23, the class description must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member of the proposed class, and the identity of the class members must be ascertainable by reference to objective criteria.
Sw. Bell Yellow Pages, Inc. v. Pipkin Enterprises, Inc. , 359 Ark. 402, 405, 198 S.W.3d 115, 117 (2004) (internal citations omitted). This court has held that a class is not ascertainable in cases where "[u]sing the class definition to sort out which customers were or were not members of the class would require a resolution of the ultimate issue in the case." Arch St. Pawn Shop, LLC v. Gunn , 2017 Ark. 341, 2, 531 S.W.3d 390, 392 (2017).
Before the circuit court ruled on Conley's third amended motion for class certification, Conley filed a motion for specific findings of fact and conclusions of law pursuant to Ark. R. Civ. P. 52. Rule 52(a)(1). Rule 52(a)(1) provides as follows:
Effect. If requested by a party at any time prior to entry of judgment, in all contested actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions, the court shall similarly set forth the findings of fact and conclusions of law that constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the circuit court to judge the credibility of the witnesses.
The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under these rules.
Ark. R. Civ. P. 52(a)(1). This court has held that Rule 52(a)(1), when invoked, requires a circuit court to enter specific findings of fact and conclusions of law when addressing a request for class certification.
For example, in BPS v. Richardson , this court reversed a circuit court's order certifying a class because the order failed to adequately set forth specific findings of fact and conclusions of law, despite that the appellant had filed a request pursuant to Rule 52. 341 Ark. 834, 20 S.W.3d 403 (2000). There, the circuit court had granted a motion to certify a class of individuals who suffered damages as a result of an explosion at a chemical packaging plant. Id. Reasoning that Rule 52 applied to motions for class certification and that the circuit court's order fell short of Rule 52's requirements, this court held has follows:
We conclude that this order does not meet the mandatory requirements of Rule 23. Specifically, evaluating the trial court's order we cannot be certain of: (1) the number of members in the class which the trial court used to determine whether the numerosity requirement was met (estimated size of the class ranged from 100 members to 20,000 members); (2) what the trial court found to be the "common questions of law or fact"; (3) what claims the trial court found to be held by the representative parties which would be "typical" of the claims of the proposed class and whether such claims would be subject to defenses not applicable to all members of the class; (4) why the named plaintiffs' claims predominate over claims held by individual class members; (5) why the trial court found that the representative parties would fairly and adequately represent the class; or (6) why the trial court found that a class action is "superior to other available methods for a fair and efficient adjudication of all the actual and potential claims."
Here, the trial court's order does not provide the parties or this court with an analysis of the requirements of Rule 23 or specific factual findings of fact or conclusions of law pursuant to Rule 52. Because it failed to comply with these requirements we conclude that the trial court has abused its discretion in certifying this case for class action status. For a class action to serve the purpose of an efficient and fair means of resolving claims arising out of the same circumstances, these issues must be analyzed. Accordingly, we reverse and remand this case to the trial court for analysis and findings as required by Rule 23 and Rule 52 of the Arkansas Rules of Civil Procedure.
Id. at 850-51, 20 S.W.3d at 411-12. Accordingly, this court remanded the case to the circuit court for further proceedings consistent with its opinion. Id.
This court reached a similar decision in Lenders Title Co. v. Chandler , another case where the appellant argued that the circuit court's order granting class certification did not contain adequate findings of fact and conclusions of law, despite appellant's timely request pursuant to Rule 52. 353 Ark. 339, 107 S.W.3d 157 (2003). Pointing to its prior decision in BPS , this court held as follows:
Like the order involved in BPS Inc. , 341 Ark. 834, 20 S.W.3d 403, the order in this case falls short of the requirements of Rule 23. The order does not state what the trial court found to be questions of law or fact common to the class. Nor does the order explain why or how the common issues would predominate over individual issues. Likewise, the order does not state why a class action in this case is the superior method for adjudicating the claims. Rather, in conclusory fashion, the order merely states that the common issues raised in the complaint predominate and that a class action is the superior method for addressing these issues. It does not address the argument made by Lenders that a class action is not superior because identifying the potential members of the class will require a closing-transaction-by-closing-transaction analysis.
Nor does the order state how or why a class action would be more fair to the parties. Instead, again in a conclusory fashion, the order merely states that there would be substantial benefit through efficiency and judicial economy by consolidating the potential claims into one class action. Finally, the order does not explain why Chandler's claims are typical of the proposed class or whether such claims are subject to defenses not applicable to all members of the class. In short, the order lacks analysis of the criteria set out in Rule 23.
Id. at 347-48, 107 S.W.3d at 161-62.
III. Analysis
Applying these authorities to the case at bar, it is plain that the circuit court's order denying class certification is inadequate. BPS and Lenders Title contemplate specific findings of fact and conclusions of law on all six of the Rule 23 factors when Rule 52 is invoked. The circuit court's order here speaks nothing to adequacy, predominance, or superiority; it only alludes to numerosity, commonality, and typicality, and even its nominal conclusions on these issues lack the specific factual underpinning contemplated by BPS and Lenders Title . In short, regardless of whether the circuit court's order could satisfy all of Rule 23's stated requirements, the order certainly cannot satisfy Rule 52's requirements of "specific findings of fact and conclusions of law."
Boll Weevil asks this court to adopt a rule whereby Rule 52's requirements are only applicable where the circuit court grants class certification, as was the case in BPS and Lenders Title , to be distinguished from the case at bar, where the circuit court denied class certification, but we decline to do so. Nowhere in BPS or Lenders Title did we suggest that Rule 52's requirements are only applicable where the circuit court grants class certification; instead, these decisions indicate the opposite. Here, we reiterate, "[f]or a class action to serve the purpose of an efficient and fair means of resolving claims arising out of the same circumstances, these issues," all six of them, "must be analyzed," regardless of whether the circuit court grants or denies class certification. BPS , 341 Ark. at 850-51, 20 S.W.3d at 412. One of the fundamental reasons our rules allow for class-action litigation is to promote efficiency and expedience, and our rules of appellate procedure allow for interlocutory review of "[a]n order granting or denying a motion to certify a case as a class action in accordance with Rule 23 of the Arkansas Rules of Civil Procedure[.]" Ark. R. App. P. - Civil 2(a)(9) (emphasis added). Accordingly, when Rule 52 is invoked, its requirements must apply regardless of whether class certification is granted or denied, lest we allow for up to, if not more than, six separate interlocutory appeals for the six separate Rule 23 factors.
Even if this were not the case, the circuit court's order here would still be inadequate. If nothing else, the circuit court's order denying class certification only contemplates a single proposed class, when Conley's third amended motion for class certification proposed two separate classes, despite Conley's Rule 52 motion and subsequent objection to the circuit court's limited order. Accordingly, we must remand this case to the circuit court for entry of specific findings of fact and conclusions of law on Conley's motion for class certification, with respect to both proposed classes. Even if the ruling contained in the circuit court's order would have been correct as to one of the classes, there is simply no indication of which class that decision would pertain to, and even if there was such an indication, this court would still be without any ruling as to the remaining proposed class. The circuit court's order here is thus simply unreviewable. While this court can affirm a circuit court's ruling if it is correct for any reason, even if the reasoning relied upon by the circuit was incorrect (See , e.g. , Alexander v. Chapman , 299 Ark. 126, 130, 771 S.W.2d 744, 746-47 (1989) ), this court cannot make up and address a ruling that the circuit court never made.
This circumstance also renders inappropriate any analysis of the parties' remaining arguments in this appeal, for similar reasons. Without intimating any sort of conclusion as to the overall viability of either proposed class, it is plain that Conley's arguments regarding commonality and typicality may be stronger or weaker with respect to one of the proposed classes over the other. The same is true of Boll Weevil's argument regarding ascertainability. For these reasons, we decline to address any of the party's remaining arguments at this juncture.
Reversed and remanded.
Kemp, C.J., concurs.
Wood, J., dissents. | [
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SHAWN A. WOMACK, Associate Justice
Willie G. Davis, Jr., an inmate serving a life sentence in the custody of the Arkansas Department of Correction ("ADC"), filed a petition for writ of mandamus in the Desha County Circuit Court. The circuit court never obtained jurisdiction over James DePriest, who was not a named party and had not been served, and therefore it could not compel his action. As the circuit court had no jurisdiction below, it correctly denied Davis's petition. We affirm.
Davis's writ of mandamus was an attempt to compel production of forensic test results related to his murder conviction. The named respondent on that petition was Thomas Deen, the prosecuting attorney in Davis's case. Davis had been informed by an official with the Arkansas State Crime Laboratory ("the crime lab") that Deen's consent was necessary to release the records. That petition was denied by the circuit court; this Court, however, reversed and remanded on appeal and directed that the circuit court enter an order compelling the crime lab to release the information Davis requested. Davis v. Deen , 2014 Ark. 313, at 3, 437 S.W.3d 694, 695. Pursuant to this order, the crime lab mailed Davis his file. On receipt of the file, however, ADC Chief Legal Counsel James B. DePriest determined that the file contained material that was prohibited by ADC's contraband policies--namely, the photographs of the victim's naked body. ADC confiscated the package. This action precipitated the present litigation. Davis filed another petition for writ of mandamus in the Desha County Circuit Court requesting that DePriest be compelled to release the file. The circuit court denied this petition as well, noting that there was no indication DePriest had been served with process in the matter. Davis appeals from that denial.
The requirement that individuals and entities being haled into court be served with process is central to the American legal system. Service of valid process is a threshold requirement for establishing a court's personal jurisdiction over a party. See, e.g. , Raymond v. Raymond , 343 Ark. 480, 484, 36 S.W.3d 733, 735 (2001). This requirement's necessity is especially clear in the context of a petition for writ of mandamus, because the writ can only issue when the petitioner demonstrates that a specific actor failed to complete a defined, nondiscretionary act to which the petitioning party has a clear and certain right. See, e.g. , Russell v. Pope , 2015 Ark. 199, at 2, 461 S.W.3d 681, 682. We construe both statutory and rules-based service requirements strictly, and any proceedings occurring after invalid service are considered void from the beginning. See, e.g. , Carruth v. Design Interiors, Inc. , 324 Ark. 373, 374-75, 921 S.W.2d 944, 945 (1996).
It is uncontested that DePriest was the individual Davis wished to compel to act in this case, and it is also uncontested that DePriest was neither served with process nor even named in this case's caption, which relates to Davis's earlier grievance against the prosecutor, Deen. The circuit court was correct to deny Davis's petition due to this procedural and jurisdictional defect; any other course of action would have been entirely void.
Affirmed.
Baker and Hart, JJ., concur. | [
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JOHN DAN KEMP, Chief Justice
Appellant Curtis Colston appeals the circuit court's denial of his petition for writ of habeas corpus filed pursuant to Arkansas Code Annotated section 16-112-101 (Repl. 2016). Colston argues on appeal that there were multiple errors in his trial, there were errors in the Arkansas Court of Appeals' decision in his direct appeal, and this court erred in denying his petition for review. He also contends that the circuit court was wrong to hold that his petition was not timely filed under Arkansas Rule of Criminal Procedure 37.1 (2016). Because Colston's petition was filed as a petition for writ of habeas corpus, and he stated no ground for relief cognizable in a habeas proceeding, we affirm the order.
I. Background
In 2016, Colston was found guilty by a Miller County Circuit Court jury of aggravated assault and possession of a firearm by certain persons and sentenced as a habitual offender to an aggregate term of 360 months' imprisonment. The Arkansas Court of Appeals affirmed. Colston v. State , 2017 Ark. App. 282, 523 S.W.3d 363.
II. Grounds for Issuance of the Writ
A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacks jurisdiction over the cause. Philyaw v. Kelley , 2015 Ark. 465, 477 S.W.3d 503. Jurisdiction is the power of the court to hear and determine the subject matter in controversy. Baker v. Norris , 369 Ark. 405, 255 S.W.3d 466 (2007). When the trial court has personal jurisdiction over the appellant and also has jurisdiction over the subject matter, the court has authority to render the judgment. Johnson v. State , 298 Ark. 479, 769 S.W.2d 3 (1989).
Under our statute, a petitioner for the writ who does not allege his actual innocence and proceed under Act 1780 of 2001 must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that he is being illegally detained. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016). Unless the petitioner can show that the trial court lacked jurisdiction or that the commitment was invalid on its face, there is no basis for a finding that a writ of habeas corpus should issue. Fields v. Hobbs , 2013 Ark. 416.
III. Standard of Review
A circuit court's decision on a petition for writ of habeas corpus will be upheld unless it is clearly erroneous. Hobbs v. Gordon , 2014 Ark. 225, 434 S.W.3d 364. A decision is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id.
IV. Claims of Trial Error
The issues raised by Colston in his petition concerned the admissibility of evidence and errors in his trial, in the direct appeal, and in this court's denial of his petition for review. It is well settled that claims of error in the trial court's rulings on evidentiary questions or in the appellate courts' decisions pertaining to the trial court's rulings are not grounds for a petition for writ of habeas corpus. Such claims do not implicate the facial validity of the judgment or the jurisdiction of the trial court. See Williams v. Kelley , 2017 Ark. 200, 521 S.W.3d 104.
V. Consideration of Habeas Petition under Rule 37.1
While the circuit court was correct when it noted that Colston's petition was untimely if considered as a petition pursuant to Rule 37.1, the circuit court was not the trial court. Colston's petition was filed in Pulaski County only because he was incarcerated in that county. It is axiomatic that any petition for writ of habeas corpus to effect the release of a prisoner is properly addressed to the circuit court in which the prisoner is held in custody, unless the petition is filed pursuant to Act 1780. Gardner v. Kelley , 2018 Ark. 300, 2018 WL 5076670 ; see also Ark. Code Ann. § 16-112-201 (Repl. 2016) (providing that petitions under Act 1780 are brought in the court in which the petitioner's judgment of conviction was entered). In Colston's case, he was convicted in Miller County, and any Rule 37.1 petition he desired to file should have been timely filed in that county where the judgment of conviction was entered. Nevertheless, because it is abundantly clear that Colston's petition stated no claim for relief that was within the purview of a habeas corpus proceeding, the habeas petition was subject to denial on that basis. This court will affirm the circuit court's decision because it reached the right result, albeit for the wrong reason. Marshall v. State , 2017 Ark. 208, 521 S.W.3d 456.
Affirmed.
Hart, J., dissents.
Josephine Linker Hart, Justice, dissenting.
I am mindful that our case law has substantially narrowed the circumstances under which relief under our state habeas corpus statute may be had. However, in light of the Supreme Court of the United States' rejection of this limit on habeas corpus when it reversed Jackson v. Norris , 2011 Ark. 49, 378 S.W.3d 103 ( Jackson I ), in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the majority's analysis is no longer valid. As in the case before us, this court in Jackson I disposed of Jackson's habeas petition stating, "Jackson has failed to allege or show that the original commitment was invalid on its face or that the original sentencing court lacked jurisdiction to enter the sentence. We hold that the circuit court's dismissal of the petition for writ of habeas corpus was not clearly erroneous." Jackson I , 2011 Ark. 49, at 5, 378 S.W.3d at 106. Inexplicably, this court continues to cite and rely on the same rationale that the Supreme Court of the United States has expressly rejected in habeas cases. Accordingly, I must dissent.
In his brief, Colston summarized the issues raised in his habeas petition in the following manner: (1) can the admissibility of photographic evidence be based on more than two theories of authentication; (2) under either the pictorial-communication theory or the silent-witness theory of photographic authentication, can either theory be applied based solely on what a witness heard; (3) can a witness testify to the accuracy of an event even if that witness was not present to witness the event; (4) can the belated recognition of an individual image in video footage be enough to authenticate the entire video recording if the witness has not provided testimony material and relevant to what the proponent claimed; (5) can a video recording provide testimony to a jury in a criminal trial without providing the accused the right to confront the witness therein; (6) is it constitutional or fundamentally fair for the accused to be denied recourse to address the wrong when he has not had the right to confront all witnesses who provided testimony.
In accordance with Rule 37.2(c)(ii), a petition claiming relief under the Rule must be filed in the trial court within sixty days of the date the mandate issued if the judgment was appealed. White v. State , 2018 Ark. 81, 540 S.W.3d 291, cert. denied , --- U.S. ----, 139 S.Ct. 390, 202 L.Ed.2d 298 (2018). The time limitations imposed in Rule 37.2(c) are mandatory, and the trial court may not grant relief on an untimely petition. Latham v. State , 2018 Ark. 44, 2018 WL 897481. | [
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BRANDON J. HARRISON, Judge
The Lafayette County Circuit Court revoked Quinton Rashad Brown's probation and sentenced him to five years' imprisonment. Pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Rule 4-3(k)(1) of the Rules of the Arkansas Supreme Court and Court of Appeals, Brown's attorney has filed a no-merit brief, along with a motion to withdraw as counsel, asserting that there is no issue of arguable merit for an appeal. Brown was notified of his right to file pro se points for reversal via certified mail, but he has not done so. We affirm the revocation and grant counsel's motion to withdraw.
In January 2016, Brown was charged with two counts of delivery of methamphetamine or cocaine (CR-2016-2 and CR-2016-3). Brown pled guilty to both charges and received two sentences of five years' probation to run concurrently. The conditions of Brown's probation required that he not commit a criminal offense punishable by imprisonment and that he "not use, sell, distribute, or possess any controlled substance, or associate with any person who is participating in or known to participate in the illegal use, sale, distribution or possession of controlled substances." In May 2017, the State petitioned to revoke Brown's probation in both cases, alleging that he had failed to report to the supervising officer, failed to pay court-ordered financial obligations, and failed to pay probation-supervision fees. Brown once again entered a guilty plea, and his probation was reinstated.
In August 2017, the State again petitioned to revoke Brown's probation, alleging that he had committed the offense of breaking or entering, committed the offense of commercial burglary along with two other convicted felons, failed to pay court-ordered financial obligations, and failed to pay probation supervision fees. In September 2017, the State amended its petition to revoke, alleging that Brown had also committed the offenses of possession of marijuana with intent to deliver, fleeing, driving on a suspended driver's license, and reckless driving.
The circuit court convened a revocation hearing on 22 September 2017. Officer Jason Tomlin, the chief of police for the Lewisville Police Department, testified that he knew Brown and had arrested him several times. Tomlin explained that on 30 July 2017, he saw Brown driving with a passenger and knew that Brown had a suspended license; so he (Tomlin) got behind Brown and initiated a traffic stop. Instead of stopping, Brown sped away, and while following Brown, Tomlin observed Brown making movements with his left hand and then jumping from the driver's seat into the backseat. The passenger then moved over to the driver's seat and stopped the car. Tomlin smelled a strong odor of marijuana in the car and observed a bag containing a large amount of a green, leafy substance weighing 1.86 ounces. Brown was arrested for possession of marijuana with intent to deliver. On cross-examination, Tomlin clarified that Brown was also cited for reckless driving, fleeing, driving on a suspended license, window tint, and no insurance.
Officer Clay Rayburn, a Lafayette County probation officer, testified that Brown had reviewed and signed the conditions of his probation. Rayburn also explained that the State had petitioned to revoke Brown's probation based on the July 30 charges and a failure to pay fines and fees.
Trey Hill, the passenger in Brown's car on July 30, testified that he had been driving that day and that he and Brown had not switched seats. He also testified that he owned the marijuana that was found in the car.
In its oral ruling, the circuit court noted that another court had found probable cause to charge Brown with possession of a controlled substance with purpose to deliver. Based on that fact and the testimony presented at the hearing, the circuit court found, by a preponderance of the evidence, that Brown had violated the law and was therefore in violation of his probation. Brown was sentenced to two terms of five years' imprisonment, to run concurrently. He has timely appealed his sentences.
On appeal of a revocation, we review whether the circuit court's findings are clearly against the preponderance of the evidence. Jones v. State , 2013 Ark. App. 466, 2013 WL 4766701. To revoke probation, the State has the burden of proving by a preponderance of the evidence that a condition of probation was violated. Id. Evidence that is insufficient to support a criminal conviction may be sufficient to support a revocation. Joiner v. State , 2012 Ark. App. 380, 2012 WL 2129351. Proof of just one violation of the terms and conditions of release is sufficient to support revocation. Richardson v. State , 85 Ark. App. 347, 157 S.W.3d 536 (2004).
Brown's counsel argues that there are no meritorious grounds for appeal and asks to withdraw as counsel. A request to withdraw because the appeal is wholly without merit must be accompanied by a brief that contains a list of all rulings adverse to appellant and an explanation as to why each ruling is not a meritorious ground for reversal. Ark. Sup. Ct. R. 4-3(k)(1). The brief must contain an argument section that consists of a list of all rulings adverse to the defendant made by the circuit court on all objections, motions, and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. Id. In deciding whether to allow counsel to withdraw from appellate representation, the test is not whether counsel thinks the circuit court committed no reversible error, but whether the points to be raised on appeal would be wholly frivolous. Williams v. State , 2013 Ark. App. 323, 2013 WL 2112203.
In this case, counsel correctly notes that the only adverse ruling was the revocation of Brown's probation. Counsel contends that the State need only prove one violation and that the circuit court based its decision on testimony that Brown had possessed marijuana and been cited for fleeing and driving on a suspended license. Counsel asserts that the circuit court believed the testimony of Officer Tomlin and that the appellate courts defer to the circuit court's credibility determinations. See Kidwell v. State , 2017 Ark. App. 4, 511 S.W.3d 341.
We hold that any point raised on appeal would be wholly without merit. Marijuana is a schedule VI controlled substance, see Ark. Code Ann. § 5-64-215 (Repl. 2016), and it is unlawful for a person to possess a controlled substance. Ark. Code. Ann. § 5-64-419(a) (Repl. 2016). The circuit court heard sufficient evidence to find by a preponderance of the evidence that Brown had possessed marijuana and thus violated his probation by committing a criminal offense. We find compliance with Rule 4-3(k)(1) and Anders , affirm the revocation, and grant counsel's motion to withdraw.
Affirmed; motion to withdraw granted.
Gruber, C.J., and Brown, J., agree. | [
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RAYMOND R. ABRAMSON, Judge
A Miller County jury convicted Thomas Leaks of possession of less than two grams of methamphetamine, a Class D felony. He was sentenced as a habitual offender to 15 years' imprisonment in the Arkansas Department of Correction. In this no-merit appeal, Leaks's appellate attorney has filed a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Arkansas Supreme Court Rule 4-3(k)(1) (2017), seeking to withdraw as counsel on the basis that there is no merit to an appeal.
On March 5, 2018, Leaks filed pro se points pursuant to Rule 4-3(k)(2) alleging that the State's crime-lab expert was uncertain about whether he possessed ecstasy or methamphetamine; that the Texarkana police officer "lied" about how much he had paid for the drugs to "defile [his] character"; that his counsel was ineffective for failing to object to his being charged with possessing methamphetamine instead of ecstasy; and that his counsel was ineffective for allowing him to testify. The State filed a brief in response to Leaks's pro se points as required by Rule 4-3(k)(3).
On March 30, 2016, Texarkana police officer Chase Dixon initiated a traffic stop on Leaks's vehicle after Dixon saw a bag being dropped out of the driver's side of the car. The bag contained what Dixon believed to be ecstasy pills. The dash-cam video that recorded the stop was introduced without objection.
Leaks was arrested, and he admitted that the pills were his and that they did not belong to the two other occupants of the vehicle. Leaks testified that he had bought the pills the day before "[c]ause it was my birthday, and I was trying to party.... [A]nd I was trying to kick it, because I had just got out of jail two weeks before that, and I wasn't even on papers, then two weeks later was my birthday, so I was trying to have a good time." While on the stand, Leaks was also questioned about his prior criminal history, which included seven prior felony convictions. Leaks stated that he was tired of the lifestyle of "popping pills" and asked the jury for forgiveness.
At the conclusion of the State's case, Leaks's counsel moved for a directed verdict on the basis that there was no proof presented that the crime was committed in Texarkana, Arkansas, or Miller County, and that the State had not met its burden.
The circuit court denied the motion. Leaks testified on his own behalf and then renewed his motion for directed verdict, which was again denied by the circuit court. The jury convicted Leaks of possession of a controlled substance. This no-merit appeal followed.
A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract and addendum. Ark. Sup. Ct. R. 4-3(k)(1). The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the circuit court on all objections, motions, and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. Eads v. State , 74 Ark. App. 363, 47 S.W.3d 918 (2001). This framework ensures that indigents are afforded their constitutional rights. Campbell v. State , 74 Ark. App. 277, 47 S.W.3d 915 (2001). In furtherance of the goal of protecting these constitutional rights, it is the duty of both counsel and this court to perform a full examination of the proceedings as a whole to decide if an appeal would be wholly frivolous. Id.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Hinton v. State , 2015 Ark. 479, 477 S.W.3d 517. In Leaks's motion for directed verdict, he argued that there was no proof that the crime charged occurred in Texarkana, Arkansas. In his brief, Leaks's counsel explains that the "State is not required to prove jurisdiction or venue unless evidence is admitted that affirmatively shows that the court lacks jurisdiction or venue." See Lindsey v. State , 54 Ark. App. 266, 925 S.W.2d 441 (1996). There is a presumption that venue is proper; accordingly, we agree that this adverse ruling provides no meritorious ground for appeal. Leaks's counsel also discusses the "second prong" of his motion for directed verdict that the "state didn't meet its burden" and properly addresses, as required by Rule 4-3(k), the reasons the adverse ruling provided no meritorious grounds for appeal.
The final unfavorable rulings that Leaks's counsel identifies in his brief all involve Leaks's testimony at trial and questions that the State asked on cross-examination. We review evidentiary rulings regarding the admissibility of evidence under an abuse-of-discretion standard, and we do not reverse absent a manifest abuse of that discretion and a showing of prejudice. Mendez v. State , 2011 Ark. 536, 2011 WL 6275689. Even if otherwise inadmissible, when a party invites discussion of a certain subject, he or she opens the door to a line of questioning by the opposing party so that the opposing party may "fight fire with fire." Wilburn v. State , 289 Ark. 224, 229, 711 S.W.2d 760, 762 (1986) (quoting Pursley v. Price , 283 Ark. 33, 670 S.W.2d 448 (1984) ). We have long held that the circuit court has wide latitude in governing cross-examination and conclude that these adverse rulings were within the court's discretion and are not meritorious points to argue on appeal.
The test for filing a no-merit brief is not whether there is any reversible error but whether an appeal would be wholly frivolous. House v. State , 2015 Ark. App. 280, 2015 WL 1954057. After thoroughly reviewing the entire record and counsel's brief, we find that there has been compliance with Rule 4-3(k)(1) ; there are no nonfrivolous issues that support an appeal in this case, and this appeal has no merit. Furthermore, we also conclude that there is no merit to Leaks's pro se points in that they are either not preserved for appeal or do not support reversal. Consequently, we grant Leaks's counsel's motion to be relieved and affirm the conviction.
Affirmed; motion to withdraw granted.
Virden and Hixson, JJ., agree.
The Arkansas State Crime Laboratory later analyzed the pills, and they were determined to be methamphetamine. | [
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KAREN R. BAKER, Associate Justice
Appellants, the Arkansas Department of Correction and Wendy Kelley, in her official capacity as Director of the Arkansas Department of Correction ("ADC"), appeal from the Pulaski County Circuit Court's order requiring the ADC to provide appellee Steven Shults with the pharmaceutical package inserts and labels for its supply of potassium chloride, one of the drugs in the State's execution protocol. On appeal, the ADC contends that the lethal-drug information requested by Shults is confidential and not subject to disclosure under the Method of Execution Act ("MEA"), Arkansas Code Annotated section 5-4-617 (Supp. 2017). In the alternative, the ADC contends that, even if the information is not confidential under the MEA, it is still required to redact certain information from the drug labels to protect the confidentiality of sellers and suppliers in the chain of distribution. We affirm in part and reverse in part.
On March 23, 2017, Shults, an Arkansas resident and attorney, filed a complaint against the ADC after it refused to provide him with public records pertaining to the State's supply of potassium chloride pursuant to his Arkansas Freedom of Information Act ("FOIA") request. Shults alleged that on February 9, February 27, and March 7, 2017, Shults submitted FOIA requests to the ADC, seeking, in part, documents and records held by the agency after November 30, 2016, containing "the name of chemicals or substances intended or considered for use in lethal injection executions, manufacturer/compounder, concentration, expiration date(s) and/or lot numbers of all chemicals or substances intended or considered for use in executions currently in the possession of the ADC." On March 10, 2017, the ADC responded to the request by providing records stating that on March 8, 2017, Kelley had recently acquired 100 vials of potassium chloride, a drug listed in its execution protocol. The ADC refused to disclose the package inserts or labels for the newly acquired supply of potassium chloride because it stated that these documents could be used to identify the sellers or suppliers of the drug in violation of the MEA. Shults contended that the ADC's interpretation of the MEA was in violation of the statute and of his rights under the FOIA, that the ADC was not substantially justified in its refusal to provide the requested records, and that he was entitled to unredacted copies of the drug labels and package inserts.
On March 29, 2017, the ADC answered and affirmatively moved to dismiss the complaint. The ADC also filed a brief in support, arguing that Shults had failed to state a FOIA claim because the records he sought were specifically exempted from public disclosure by the MEA. The ADC took the position that the lethal-drug labels and package inserts readily identify the drug manufacturers, who are sellers and suppliers protected by the plain language of the confidentiality provisions in the MEA. The ADC attached the affidavit of Rory Griffin, the deputy director of Health and Correctional Programs with the ADC. Griffin stated that the ADC had attempted to comply with both the disclosure and confidentiality provisions of the MEA in response to past FOIA requests; however, even when the ADC had provided redacted copies of lethal-drug labels and package inserts, some recipients had been able to determine the identity of the drugs' manufacturers by comparing the redacted labels and inserts to publicly available information. Griffin stated that this is because each manufacturer's labels and package inserts are unique with respect to format, style, diction, font, organization, grammar, spelling, size, shape, coloring, and appearance. Griffin stated that, given the unique character of drug labels and package inserts, the only way for the ADC to comply with the confidentiality provisions of the MEA was to decline disclosure of these records entirely.
On March 30, 2017, the circuit court held a hearing on Shults's complaint, and on March 31, 2017, the circuit court entered an order granting Shults's request that he be provided with the unredacted potassium chloride labels and package inserts. The circuit court held that the General Assembly did not intend to protect the identity of manufacturers of drugs used in the ADC's lethal-injection protocol. On April 3, 2017, the ADC filed a notice of appeal, and we granted its request for an emergency stay of the order pending appeal.
While briefing in this case was ongoing, Shults filed a nearly identical FOIA complaint against the ADC with respect to its refusal to disclose labels and inserts pertaining to midazolam, another drug used in the execution process. The circuit court in that case also ordered disclosure of the unredacted records, and the ADC appealed. We granted a stay of the circuit court's order and also granted Shults's motion to expedite the appeal. Ark. Dep't of Corr. v. Shults , 2017 Ark. 300, 529 S.W.3d 628 ( Shults I ). In Shults I , a majority of this court affirmed in part and reversed and remanded in part. Applying our rules of statutory interpretation, we held that drug manufacturers are not included within the MEA's confidentiality provisions. Id. We reversed, however, the portion of the circuit court's order requiring the ADC to disclose unredacted records. Id. We remanded for the circuit court to determine "which information must be redacted on the midazolam labels and/or package inserts at issue." Id. at 10, 529 S.W.3d at 634. We now have the same issues before us in this current appeal with respect to the ADC's records pertaining to its supply of potassium chloride.
The issue presented on appeal is strictly one of statutory interpretation of Ark. Code Ann. § 5-4-617. We review issues of statutory interpretation de novo, as it is for this court to determine the meaning of a statute. Dep't of Ark. State Police v. Keech Law Firm, P.A. , 2017 Ark. 143, 516 S.W.3d 265. The primary rule of statutory interpretation is to give effect to the intent of the legislature. Keep Our Dollars in Independence Cty v. Mitchell , 2017 Ark. 154, 518 S.W.3d 64. We first construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. In conducting this review, we will reconcile statutory provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Id. Furthermore, we will not read into a statute language that was not included by the legislature. Id.
Here, the statute at issue, Ark. Code Ann. § 5-4-617, provides in pertinent part:
(i)(1) The procedures under subdivision (g)(1) of this section, the implementation of the procedures under subdivision (g)(1) of this section, and the identities of the entities and persons who participate in the execution process or administer the lethal injection are not subject to disclosure under the Freedom of Information Act of 1967, § 25-19-101 et seq.
(2) The department shall keep confidential all information that may identify or lead to the identification of:
(A) The entities and persons who participate in the execution process or administer the lethal injection; and
(B) The entities and persons who compound, test, sell, or supply the drug or drugs described in subsection (c) of this section, medical supplies, or medical equipment for the execution process.
(3) The department shall not disclose the information covered under this subsection in litigation without first applying to the court for a protective order regarding the information under this subsection.
(j) The department shall make available to the public any of the following information upon request, so long as the information that may be used to identify the compounding pharmacy, testing laboratory, seller, or supplier is redacted and maintained as confidential:
(1) Package inserts and labels, if the drug or drugs described in subsection (c) of this section have been made by a manufacturer approved by the United States Food and Drug Administration;
(2) Reports obtained from an independent testing laboratory; and
(3) The department's procedure for administering the drug or drugs described in subsection (c) of this section, including the contents of the lethal-injection drug box.
In its brief, the ADC argues that the circuit court erred by ordering it to provide Shults with copies of the potassium chloride labels and package inserts because these records would identify the drug manufacturer, who the ADC contends is not subject to disclosure under the MEA's confidentiality provisions. However, in its reply brief, which was filed subsequent to our decision in Shults I , the ADC has abandoned its argument regarding manufacturers and instead asserts that this case is controlled by Shults I -stating the court's decision in Shults I is now final and controls the outcome of this case. We agree.
In Shults I , we were presented with the same issue as in this case. In Shults I , we held that the identity of the drug manufacturers is not protected under the "seller" and "supplier" confidentiality provisions of Arkansas Code Annotated § 5-4-617,
A review of the entire statute ... reveals that the legislature explicitly referred to a "manufacturer" of lethal drugs in two different subsections. See Ark. Code Ann. § 5-4-617(d)(1) & (j)(1).... This demonstrates that the legislature was aware of the differences between the terms "manufacturer," "seller," and "supplier" and that it could have easily included "manufacturer" among the entities whose identity was confidential for purposes of the MEA had it intended to do so. We have repeatedly held that we will not read into a statute language that was not included by the legislature. E.g. , [ Keep Our Dollars in Independence Cty. v. Mitchell , 2017 Ark. 154, 518 S.W.3d 64 ]; Scoggins v. Medlock , 2011 Ark. 194, 381 S.W.3d 781 ; Potter v. City of Tontitown , 371 Ark. 200, 264 S.W.3d 473 (2007).
....
We interpret AFOIA liberally to promote free access to public information. [ Dep't of Ark. State Police v. Keech Law Firm, P.A. , 2017 Ark. 143, 516 S.W.3d 265 ]. In addition, we interpret any exemptions to AFOIA narrowly and in favor of disclosure. Id. ; Ark. State Police v. Wren , 2016 Ark. 188, 491 S.W.3d 124. Based on the foregoing principles, we conclude that the circuit court was correct in determining that the identity of drug manufacturers is not protected under the confidentiality provisions of section 5-4-617, and we affirm this ruling.
Shults I , 2017 Ark. 300, at 6-8, 529 S.W.3d at 632-33.
Here, simply put, the holding from Shults I is directly on point with the case before us, and we affirm the circuit court's finding that the identity of drug manufacturers is not protected under the confidentiality provisions of Ark. Code Ann. § 5-4-617.
Next, we address the ADC's alternative argument that even if we agree with the circuit court that the confidentiality of manufacturers is not protected under the statute, it is still required to redact certain information such as lot, batch, and/or control numbers that could lead to the identification of other sellers and suppliers in the chain of distribution. We agree. Pursuant to Ark. Code Ann. § 5-4-617(j), if package inserts and drug labels are made available to the public, any information that could be used to identify the seller or supplier must be redacted and maintained as confidential. In Shults I , we held that because disclosure of information such as lot, batch, and/or control numbers could lead to the identification of the seller and/or supplier of the midazolam, the ADC was required to redact and maintain this information as confidential under section 5-4-617(j). We also held that our holding was supported by "FDA regulations, which require that drug labels contain information revealing 'the complete history of the manufacture, processing, packing, holding, and distribution of a batch or lot of drug product[.]' 21 C.F.R. § 210.3(b)(11) (2011).' " Id. at 9, 529 S.W.3d at 634. Accordingly, here, consistent with Shults I , because disclosure of information such as lot, batch, and/or control numbers could lead to the identification of the seller and/or supplier of the potassium chloride, the ADC is required to redact and maintain this information as confidential under section 5-4-617(j). We therefore reverse that portion of the circuit court's order requiring disclosure of the unredacted records and remand for the court to determine, based on the evidence presented by the parties, which information must be redacted on the potassium chloride labels and/or package inserts at issue.
Affirmed in part; reversed in part and remanded.
Kemp, C.J., and Wood, Wynne, and Womack, JJ., concur in part and dissent in part. | [
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Michael filed a motion to reconsider on December 7, 2016. In it he argued that the circuit court failed to consider or make findings regarding Rene's financial need and that the circuit court impermissibly automatically escalated alimony at the end of four years. Michael also appealed the circuit court's division of the rights to the stock awards as marital property. He argued that Brady has the right to unilaterally deny Michael these benefits; thus, he does not have enforceable contract rights to the stock awards.
The court did not rule on the motion to reconsider, and it was deemed denied. Michael filed a timely notice of appeal.
II. Issues on Appeal
A. Alimony Award
1. Discretion to award alimony
For his first point on appeal, Michael argues that the circuit court abused its discretion when it awarded Rene alimony despite its finding that she has no financial need for alimony. We disagree with Michael's characterization of the circuit court's finding regarding Rene's financial need, and we find no error in the circuit court's exercise of its discretion.
On appeal, divorce cases are reviewed de novo. Webb v. Webb , 2014 Ark. App. 697, 450 S.W.3d 265. An award of alimony is not mandatory but is solely within the circuit court's discretion, Mitchell v. Mitchell , 61 Ark. App. 88, 964 S.W.2d 411 (1998). We will not reverse absent an abuse of that discretion. Cole v. Cole , 89 Ark. App. 134, 201 S.W.3d 21 (2005). An abuse of discretion means discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Foster v. Foster , 2015 Ark. App. 530, 472 S.W.3d 151. The circuit court is in the best position to view the needs of the parties in connection with an alimony award. Smithson v. Smithson , 2014 Ark. App. 340, at 2, 436 S.W.3d 491, 493. If alimony is awarded, it should be set at an amount that is reasonable under the circumstances. Mitchell, supra.
The division of marital property and an award of alimony are complementary devices that may be utilized by the circuit court to make the dissolution of a marriage financially equitable. Webb, supra. The purpose of alimony is to rectify the economic imbalances in earning power and standard of living in light of the particular facts of each case. Kuchmas v. Kuchmas , 368 Ark. 43, 243 S.W.3d 270 (2006). The primary factors that a court should consider in awarding alimony are the financial need of one spouse and the other spouse's ability to pay. Gilliam v. Gilliam , 2010 Ark. App. 137, 374 S.W.3d 108. The circuit court may also consider other factors, including the couple's past standard of living, the earning capacity of each spouse, the resources and assets of each party, and the duration of the marriage. Johnson v. Cotton-Johnson , 88 Ark. App. 67, 194 S.W.3d 806 (2004). We adhere to no mathematical formula or bright-line rule in awarding alimony. Valetutti v. Valetutti , 95 Ark. App. 83, 234 S.W.3d 338 (2006). The need for flexibility outweighs the need for relative certainty. Id.
The circuit court's detailed analysis of the alimony issue demonstrates its careful consideration of the evidence. To understand this point on appeal and the following point, it is helpful to set out the court's entire discussion of the alimony issue. The circuit court concluded the following:
[W]hile it doesn't disagree with the Defendant that you could easily look at this as a case where, yes, the Defendant has the ability, but the Plaintiff doesn't have the need. And the Court would say that it is looking at it as an alimony case because there's only four years left for a substantial amount of child support. The Court finds that the appropriate amount of alimony is $3500 per month; however, the Court charges the Plaintiff with $1000 a month as income she could earn on her own. That's a very small amount of money. On the other hand, with two school-age children with which the Plaintiff is heavily involved and the Defendant who is only able to be here some, only working part-time right now is feasible for the Plaintiff. The Court does not tell the Plaintiff to work part-time, but thinks she could obtain work without any harm to the children, obtaining work would perhaps benefit the children and the Plaintiff, and such work could be increased as the children leave home. Therefore, the Defendant shall pay spousal support of Two Thousand Five Hundred Dollars ($2500) per month directly to the Plaintiff. Such award is subject to review in four years.
The Court agrees that alimony may need to be stepped up in the future, but it's four years until the Plaintiff loses child support, and the Court is just not going to try and predict that far out. If in four years the Plaintiff wants to come in and
show she needs more, and he's still earning at the same rate, and the Plaintiff is making some reasonable efforts to gain employment or prepare herself for employment, the Court can look at it at that point, but the Court is not going to make those kind of assumptions that far ahead. The Court knows that's not a lot of alimony, but in most cases it would be a huge amount of alimony. It's not a lot of alimony in this case. And the reason for that is the Plaintiff is getting a large amount of child support, the court believes, after looking at the Defendant's exhibits, the Plaintiff has the ability to draw a substantial sum of money in excess of $85,000. The Court appreciates the basic assessment that the reason the returns of the Parties have been relatively low up to now is that so much of the investments have been in savings accounts. The Court is cognizant it is very difficult today to receive a good return on a completely safe investment. The Court doesn't know how people who say they live off CDs do it, because, you know, they are not interested in paying you any sum of money that is even worth your while, really to put your money there. I mean, it's just-it's pitiful. But the Court does believe that there are some investment vehicles that carry some risk, as all things do, but that would provide the Plaintiff income in excess of what she's getting now. So all those things went into the Court's calculation that alimony should be kept at what, for this case, is a low level.
Michael's assertion that the circuit court found that Rene has no need for alimony is not borne out by our review of the order. The court stated that "you could easily look at this as a case where, yes, the Defendant has the ability, but the Plaintiff doesn't have the need." The circuit court then rejected that view and explained that it had considered the issue of alimony in light of the upcoming cessation of child-support payments, Rene's involvement with the children's day-to-day lives and Michael's work-related absence from the daily routine, and the relatively low return on the investments from which Rene garners income. The circuit court also specifically found that Rene is able to earn $1000 a month from part-time employment. Accordingly, the court reduced the $3500 amount in alimony it would have awarded by $1000 to $2500. The circuit court explains that the
"low" amount of alimony reflects of the large amount of child support Michael is responsible for each month.
Michael argues that the court erred in awarding alimony and compares the instant case to Cole v. Cole , 89 Ark. App. 134, 201 S.W.3d 21 (2005). The facts in Cole are similar to the case before us. At the time of the parties' divorce, Cindy Cole was forty-nine years old, in good health, had been a stay-at-home parent for all but two years of the marriage, and the Coles' minor child would soon graduate from high school. Cindy, like Rene, had been awarded various substantial financial assets in the divorce. Unlike Rene, Cindy had completed her college degree, and she held a real estate license. In Cole , our court held that the circuit court had considered the proper factors (Cindy's lack of financial need, her resources and assets, and her earning capacity) in deciding that she had not demonstrated a need for permanent alimony; thus, there was no abuse of discretion. However, the important similarity between Cole and the instant case is the circuit court's thoughtful exercise of its discretion. We recently held in Trucks v. Trucks , 2015 Ark. App. 189, at 5, 459 S.W.3d 312, 316,
Although the facts of this case would arguably support the denial of an award of alimony if that had occurred, it is not our duty under our standard of review to simply substitute our judgment for that of the circuit court, which was in a far better position to judge the credibility of the witnesses. It is instead our duty to determine if the circuit court abused its discretion in making its findings regarding the award of alimony.
In both Cole and the instant case, the circuit court clearly considered the facts, testimony, and evidence and thoughtfully employed its discretion.
Michael also argues that the circuit court abused its discretion by improperly evaluating Rene's monthly expenses. Michael argues that the instant case is "just like" Kelly v. Kelly , 2016 Ark. App. 272, 496 S.W.3d 391, in which our court held that "[w]ithout discussion, the trial court awarded Mandy every penny she requested[.]" In Kelly our court held that the circuit court had abused its discretion by ordering alimony without seeming to consider the following facts in evidence:
The vast majority of Mandy's above-requested expenses are nonexistent, overstated, or excessive. Mandy claimed $225 per month for lawn care, but it was her testimony that lawn care was provided for by her landlord. She allocated $250 per month for fire insurance but testified she did not pay fire insurance. She claimed $750 per month for health insurance but admitted under cross-examination her health insurance would cost at most $463 per month. We find these items-her $1,000 per month for gifts, $1,000 per month for entertainment and $2,500 per month for vacations-were excessive. Mandy conceded that her monthly figures for food ($1,382), clothing ($1,764), and vacations ($2,500) were based on a family of four, not her current family of three further requiring these figures to be reduced.
Our court remanded the case and ordered the circuit court to reduce the award of alimony to one that is reasonable under the circumstances set forth in the record. By contrast, the circuit court in the instant case awarded a combined amount of alimony and child support of $11,600, which is around $1000 and $8000 less than Rene's two household-expense estimates of $12,995 and $19,946.25. Michael asserts that Rene overestimated her monthly expenses, and he testified that he estimates that the household expenses are around $7500 a month. Michael urges this court to reweigh the evidence in his favor; however, our court defers to the superior position of the circuit court to judge the credibility of witnesses, and we cannot say that in light of the testimony and evidence the circuit court awarded an unreasonable amount of alimony under the circumstances.
The circuit court engaged in a careful analysis weighing the relative financial positions of the parties, Rene's role as primary caregiver, her improved ability to find employment or further her education when the children are in college, both parties' affidavits and testimony regarding household expenses, and the amount of child support awarded. The circuit court did not exercise its discretion thoughtlessly, improvidently, or without due consideration, and we affirm.
2. Escalator clause
Michael argues that the circuit court's finding that the issue of alimony may be revisited in four years constitutes an "escalator clause." Michael mischaracterizes the circuit court's decision.
Michael cites Kelly , supra , in support of his argument that the circuit court abused its discretion by automatically increasing alimony payments in four years when child-support payments cease. In Kelly , our court held that the circuit court erred when it directed that alimony automatically increases as child support abates. We held that
[t]he circuit court's approach, applying the "escalator clause" where no justification exists, ignores the fact that modifications in alimony require proof of a change in circumstances, and the burden of proof is on the party seeking to modify the alimony. Without financial need established, by employing the use of the "escalator clause" to increase alimony as child support decreases and then abates, the circuit
court has relieved Mandy of her burden to prove that such an increase is necessary and justified.
Kelly , 2016 Ark. App. 272, at 8, 496 S.W.3d 391, 395-96.
By contrast, in the instant case the circuit court did not order that alimony will automatically increase when child-support payments cease. In fact, the circuit court explicitly states that in four years, when child support abates, Rene may petition the court to review the issue of alimony based on the facts at that time. The court's order is in line with Arkansas Code Annotated section 9-12-312(a)(7), which provides that if a material change in the parties' circumstances occurs-here, the cessation of child support-then either party may petition for review of the order awarding alimony. Modification of an alimony award must be based on a significant and material change in the parties' circumstances, and the burden of showing such a change in circumstances is always on the party seeking the modification. Jones v. Jones , 2014 Ark. App. 614, 447 S.W.3d 599. If Rene chooses to petition the court for an increase in alimony, it will be her burden to prove that the increase is justified, and the circuit court's order in no way eliminates that requirement. Such a requirement may come at any time circumstances warrant. We find no error, and on this point we affirm.
3. The divisibility of the stock options
Michael makes several interrelated arguments regarding the divisibility of the stock options. First, he argues that he has no enforceable right to the awards because his rights are subject to Brady's restrictive policies, such as claw back and the right to defer, amend, modify, or terminate the agreement, and because his right to the stock options depends on his continued employment; thus, the awards are not vested and not divisible marital property. Second, Michael asserts that at the time of the divorce, he had no "current, fully distributive interest" in the awards, which he argues is required for the court to find that he has acquired an enforceable right to the awards. Last, Michael points out that Rene did not provide evidence of the fair market value of the stocks; therefore, the circuit court erred by finding that a speculative future interest is distributable. We find no error in the circuit court's findings, and we affirm.
This court reviews division-of-marital-property cases de novo. Sanders v. Passmore , 2016 Ark. App. 370, at 7, 499 S.W.3d 237, 243. With respect to the division of property in a divorce case, we review the circuit court's findings of fact and affirm them unless they are clearly erroneous or against the preponderance of the evidence. Id. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. In order to demonstrate that the circuit court's ruling was erroneous, an appellant must show that the circuit court abused its discretion by making a decision that was arbitrary or groundless. Id.
First, we address whether the circuit court erred by finding that the awards are divisible marital property based on its conclusion that Michael's interest in the stock awards had vested before the divorce. As stated above, Michael asserts that his interest is subject to Brady's restrictive company policies and his continued employment; thus, at the time of the divorce he had no "current, fully distributive interest" in the awards.
The circuit court set forth its reasons for finding that Michael has an enforceable right to the stock options:
Under the terms of the award, the Defendant will receive stock (or options) if he still works for the employer at the specified date. Should he die before that date, his estate will receive that award. The Day court defines benefits as vested once they 'cannot be unilaterally terminated by an employer without also terminating the employment relationship.' Therefore, I believe that the awards made during marriage are, at least in part, marital. I say in part because the grants are intended as payment for work already done and as incentive for continued employment. Only the portion of the awards intended to compensate for past performance should be considered marital. It is difficult to determine how to allocate the awards between payment for past performance and incentive for future employment, but I think the allocation I announced at trial, 80% of awards exercisable in 2016, 40% of awards exercisable in 2017, and none of the awards exercisable in later years, is appropriate.
Michael cites Burns v. Burns , 312 Ark. 61, 847 S.W.2d 23 (1993), in support of his argument that he had no enforceable right to the stock awards. In Burns , our supreme court held that "nonvested military retirement benefits to which the serviceman or servicewoman may become entitled in the future are not property." Id. at 64, 847 S.W.2d 23, 26. Burns is distinguishable from the instant case. In Burns , the husband would acquire the right to the retirement fund only if he continued to serve five more years after the parties' divorce. By contrast, Michael acquired the right to the stock options as part of an award-and-incentive plan offered to him upon his employment with Brady. In support of its finding that Michael has a vested interest in the options, the circuit court points out that if Michael dies, the stock options will become a part of his estate. In Burns , the husband's rights were contingent on his continued service for five years.
Michael also asserts that this case is analogous to Hatch v. Hatch , 2009 Ark. App. 337, 308 S.W.3d 174, in which our court held that the payments made to the husband as a result of his disability do not constitute "retirement pay" under the parties' property-settlement agreement, and the disability benefits the husband received after the parties' divorce are not subject to division as marital property. Our court held that "appellant's entitlement to retirement benefits as contemplated under the decree would occur when appellee was paid benefits that were vested, irrevocable, or permanent in nature instead of tied to whether or not he could work." Hatch is distinguishable from the instant case. In Hatch , we held that the husband's potential disability payments are nonmarital property because he had not yet acquired the right to them at the time of the divorce. As we stated above, Michael acquired the right to the stock options when he began employment with Brady and accepted and contracted for those rights.
Michael also argues that the stock awards are not marital property because they were not fully distributable at the time of the divorce and cites Hackett v. Hackett , 278 Ark. 82, 84, 643 S.W.2d 560, 652 (1982), to support his argument. In Hackett , our supreme court held that, "[t]here is no evidence in this case Mr. Hackett had a vested interest in the capital account with Southwestern Life Insurance Company that was fully distributive upon the date of the Hackett's divorce"; thus, the wife was not entitled to half of the account. It is important to note that Hackett was decided before Day v. Day , 281 Ark. 261, 663 S.W.2d 719 (1984), in which our supreme court expanded the definition of marital property. In Day , the Court held that the husband's interest in his retirement plan was vested, marital property subject to allocation because it could not be diminished by his employer, and his interest was not dependent on his continued employment. In the instant case, the stock awards were granted to Michael beginning in 2014, subject to a restrictive period during which Michael's right to the stock awards was forfeitable. According to the restricted stock-unit agreement, if Brady terminates Michael's employment (without cause) or if he dies or is disabled before the end of the restrictive period, the restricted stock units will become fully vested. The nonqualified stock-option agreement sets forth that after one year's employment, if Michael is terminated not for cause, he has 90 days to exercise his option. Furthermore, the agreement sets forth that if he dies, is disabled such that he cannot work, or is terminated because of retirement after age 65, he immediately vests. The circuit court correctly noted that even Michael's death would not affect his right to his stock award, and thus, Day is applicable here.
Decades later, our supreme court cited Hackett in Pelts v. Pelts , 2017 Ark. 98, at 3, 514 S.W.3d 455, 456. In Pelts our supreme court addressed the issue of when an active-duty retirement account is vested and therefore divisible marital property. In Pelts , the husband had two retirement accounts-a reserve retirement account that the parties agreed was vested and an active-duty account that required Pelts to continue to serve for several more years to acquire a right to it. The Arkansas Supreme Court held that "[w]hether a retirement interest is vested hinges on several factors, including whether the benefit 'cannot be diminished by the [employer] and is not dependent upon ... continued employment.' We have also asked whether the interest was 'fully distributive upon the date of the ... divorce.' See Hackett v. Hackett , 278 Ark. 82, 84, 643 S.W.2d 560, 562 (1982)." In Pelts , our supreme court noted that if the husband opted to end his military service immediately, he would never vest in that particular retirement plan, and he would receive no share of the retirement payments. Our supreme court held that
Gregory's vested property interest in the reserve retirement system at the time of his divorce is distinct from his potential future interest in active-duty payments. The parties do not contest that if Gregory opted to leave the military immediately, he would receive no share of the active-duty retirement payments that might otherwise begin a decade before his anticipated reserve retirement. An interest that is contingent on continued employment is too speculative to be vested and subject to division.
The instant case is distinguishable from both Hackett and Pelts . First, though our supreme court held in Pelts that whether an interest is distributable could be evidence that the interest had vested, its holding is particular to the facts of that case and not a reinstatement of that requirement. Second, unlike Pelts , in which appellant must continue to serve to acquire his right to the retirement account, Brady conferred the right to the stock options when Michael began employment and entered into the agreements.
The instant case is analogous to McDermott v. McDermott , 336 Ark. 557, 565, 986 S.W.2d 843, 847 (1999), in which our supreme court held that attorney's fees earned pursuant to a contingency-fee contract made during the marriage are marital property even though the fees would not be collected until sometime in the future after the parties' divorce. In McDermott , the husband's contingency contracts were created during the marriage, and some of the cases covered by those contracts were tried during the marriage; therefore, our supreme court held that the husband expended time and effort during the marriage in an effort to create more marital assets, and these assets are divisible. Likewise, Michael contracted for the stock options during the marriage in an effort to add to the household income. Like McDermott, during the marriage, Michael expended time and effort working for Brady. The stock options Michael can "collect" as deferred compensation for the work he performed before the divorce are divisible, marital property.
Michael asserts that the contracts setting forth the terms of the stock awards contain restrictive policies that "allow Brady Corporation to amend, modify, defer, claw back, or terminate Michael's possible, future rights," and Michael argues that these policies would allow Brady to unilaterally terminate the options. Michael cites no case law to support his argument that the above-named policies are anything more than boilerplate. In our review, we found no case law or statutory regulation declaring that any of these policies render stock-awards unenforceable. When stock options are nontransferable according to the stock option agreement, courts have found that the options may be considered marital property. In a similar case, Jensen v. Jensen , 824 So.2d 315, 320 (Fla. Dist. Ct. App. 2002), the Florida District Court of Appeals held that
[w]hile both expert witnesses in this case testified that appellant's unvested stock options were incapable of being valued or transferred as of yet, the stock options were granted to appellant during the marriage ... while the unvested stock options in this case are contingent upon certain events transpiring, such as appellant's continued employment, these options were granted to appellant during the marriage. Appellant's employer sought to reward appellant for his past commendable service, while at the same time, adding incentive for appellant to remain with the company in order to exercise such options. Yet, in the unfortunate circumstance of appellant's death, the option period would have remained open to appellant's estate for one year. Similarly, if appellant became disabled, such options would then vest. Notwithstanding the lack of value, such options that were gained
prior to the filing of the dissolution petition do represent assets that were accumulated during the marriage and are, thus, subject to equitable distribution.
The appellant in Jensen and Michael have very similar agreements regarding the stock options. Neither death nor disability bar the vesting of the stocks, and in both cases, the percentage of the stock options that the lower court found are divisible, marital property represent deferred payment for work performed during the marriage. The fact that certain restrictions, such as the inability of the employee to transfer the stock, inhibit the control of the stock-option holder does not render the stock award agreement unenforceable. Michael does not cite any authority regarding the effect of the named contingencies on the vesting and divisibility of stock awards, and we decline to accept his interpretation.
Michael also asserts that the circuit court's decision to distribute the stock options violates Arkansas Code Annotated section 9-12-315(a)(4) (Repl. 2015), which sets forth that
[w]hen stocks, bonds, or other securities issued by a corporation, association, or government entity make up part of the marital property, the court shall designate in its final order or judgment the specific property in securities to which each party is entitled, or after determining the fair market value of the securities, may order and adjudge that the securities be distributed to one party on condition that one-half (1/2) the fair market value of the securities in money or other property be set aside and distributed to the other party in lieu of division and distribution of the securities.
Michael correctly concedes that the stock options at issue do not directly comprise stocks, bonds, or other securities; however, he asserts that this court should treat the stock options as it would corporate stock that has been designated marital property. Michael asserts that the circuit court erred when it "failed to either allocate the ownership of the martial property between Michael and Rene or determine the fair market value of the marital property and divide that value between Michael and Rene," and he cites Adametz v. Adametz , 85 Ark. App. 401, 155 S.W.3d 695 (2004), in support of his argument. In Adametz , the circuit court found that the hospital in which the Adametzes invested had concrete, ascertainable value-namely its real estate assets. The wife failed to present any evidence of the value of those assets, and the circuit court found that because of her failure to provide evidence of the fair market value of the real estate, she was not entitled to any amount of the assets. The instant case is distinguishable from Adametz because here, the stock award did not have an immediate, ascertainable value at the time of the divorce. Indeed, Rene's expert forensic accountant testified that she had not calculated the fair market value of the options because their value may be ascertained only at the time the option is exercised. Michael's assertion that Rene must present such evidence mischaracterizes the nature of the stock awards. Again, McDermott , supra , is instructive. In McDermott , the amount of the contingency fee that the husband contracted for during marriage was not known at the time of the divorce. Our supreme court held that because the husband expended time and effort working on these cases during the marriage, a percentage of the contingency fee is marital property, and the actual amount of the fee awarded depends on the future outcome of the case. In the instant case, the circuit court makes it clear that Rene's interest in the stock awards is a quantifiable, proportional percentage of the deferred payment for Michael's past performance for Brady during the marriage. The court's percentage-based division of the property is appropriate and necessary when the value of the property is not immediately ascertainable as it is here and in McDermott . For the reasons set forth above, we affirm.
Affirmed.
Gruber, C.J., and Harrison, J., agree.
In Kelly v. Kelly , 2015 Ark. App. 147, 2015 WL 1000809, we ruled that the divorce decree was not final for purposes of appeal. Owen Kelly filed a petition for review. In Kelly v. Kelly , 2016 Ark. 72, 483 S.W.3d 296, our supreme court vacated the opinion and remanded the case to this court. | [
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RAYMOND R. ABRAMSON, Judge
Jonathan Nichols and Whitney Dubar (now Nichols) separately appeal the Sebastian County Circuit Court order terminating their parental rights to their son, B.N. Whitney also appeals the termination of her parental rights to her children, A.D., H.P., and G.D. On appeal, they both argue that the circuit court erred in finding that (1) it was in the children's best interest to terminate their parental rights and (2) a statutory ground supported termination. We affirm.
On September 3, 2015, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody of A.D., H.P., and G.D. The petition listed Whitney as the mother. Jonathan is not the father of the children but was Whitney's live-in boyfriend when the petition was filed.
In the affidavit attached to the petition, DHS alleged that it had opened a protective-services case on August 27, 2015, as a result of Jonathan's spanking H.P., which left a large bruise on the back of her leg. The affidavit further stated that DHS had contacted Whitney and Jonathan on August 31, 2015, at the hotel where the family was living, after receiving a report that Whitney had inadequate food for the children. Whitney admitted posting on Facebook that she had no formula for G.D. She submitted to a drug screen and testified positive for THC. She also learned that she was pregnant with B.N. She further admitted that she had medications for her anger but had not been seeking treatment. A chaplain arrived with formula and food donations, so DHS left the children in Whitney's custody. DHS returned to the hotel on September 1, 2015, to check on the welfare of the children, but Whitney and Jonathan had moved out of the hotel around midnight the night before and had left all their belongings. DHS attempted to contact Jonathan, but he disconnected the call. The circuit court entered an ex parte order of emergency custody on the same day the petition was filed.
On September 8, 2015, the court entered a probable-cause order, and on October 13, 2015, the court adjudicated the children dependent-neglected based on abuse, neglect, and parental unfitness. In the adjudication order, the court found that DHS had made reasonable efforts to prevent removal of the children.
On March 1, 2016, the court held a review hearing and noted that Whitney and Jonathan had married. The court found that Whitney was complying with the case plan and court orders. Specifically, she was attending parenting classes and had completed a psychological evaluation and a drug-and-alcohol assessment. The court ordered Whitney to notify DHS when she went into labor and noted that an emergency hold of the child would be taken. The court further noted that Jonathan was attending parenting classes and had completed a psychological evaluation. The court ordered him to complete domestic-violence classes. The court further found that DHS had made reasonable efforts to provide family services.
On March 13, 2016, Whitney gave birth to B.N., and on March 15, 2016, DHS filed a petition for emergency custody and dependency-neglect of the child. The petition listed Whitney as the mother and Jonathan as the legal father. In the affidavit attached to the petition, DHS alleged that the hold resulted from the dependency-neglect case involving Whitney's other children. On the same day the petition was filed, the circuit court entered an ex parte order for emergency custody. On April 1, 2016, the court entered a probable-cause order.
On April 19, 2016, the court adjudicated B.N. dependent-neglected based on the parties' stipulations. In the adjudication order, the court found that Whitney and Jonathan had been complying with the case plan and court orders. Specifically, Whitney had completed parenting classes and was participating in the twelve-week program recommended in her drug-and-alcohol assessment. The court also noted that DHS had made new referrals for domestic-abuse counseling and parenting-without-violence and parenting-forever classes. As to Jonathan, the court found that he was working to complete domestic-violence, parenting-without-violence, and parenting-forever classes. The court found that DHS had made reasonable efforts to provide family services.
On August 4, 2016, the court held a permanency-planning hearing. The court found that Jonathan and Whitney had housing and income but no transportation. The court noted that Whitney had completed the recommended drug treatment from her assessment. The court ordered both Jonathan and Whitney to complete parenting-without-violence classes. The court further found that DHS had made reasonable efforts to provide family services.
On November 3, 2016, the court held a fifteen-month review hearing. At that hearing, the court continued the goal of the case to be reunification with a concurrent goal of adoption following termination of parental rights. On December 30, 2016, DHS filed a petition for termination of Jonathan's and Whitney's parental rights. It alleged the aggravated-circumstances ground against both Jonathan and Whitney. The court held a termination hearing on February 2, 2017.
At the hearing, Whitney testified that she and Jonathan had moved into a two-bedroom apartment in Van Buren on December 1, 2016. She explained that her mother and stepfather had previously lived in the apartment but that she recently evicted them because of a disagreement. She noted that only she and Jonathan are listed on the lease agreement.
Whitney testified that her current combined income with Jonathan is $1400 a month and that their source of income is Social Security disability benefits. She stated that she has reliable transportation through her cousin. She did not have a vehicle and did not have a driver's license due to unpaid fines for a disorderly-conduct charge.
Whitney explained that she had visitation with her children every Wednesday for two hours and that the visits went well, but the children often appeared with bruises or boils. She testified that she had completed parenting classes but had not completed parenting-without-violence classes; she could not recall how many more classes she needed to attend to complete the program. She testified that in the parenting classes, she had learned to appropriately discipline her children. She stated that she had completed a drug-and-alcohol assessment and its recommendation of twelve weeks of Narcotics Anonymous meetings; she actually completed sixteen weeks of meetings. She noted that she had not completed counseling because DHS had not made a referral.
She further discussed her and Jonathan's relationship with the DHS caseworker, Karen Pearson. She stated that she had requested a new caseworker because Pearson is disrespectful to them and initiates fights in the children's presence. She testified about an incident in which Pearson had critiqued how she fed one of the children during a visitation and she became aggravated with Pearson. Whitney acknowledged that she had responded inappropriately, and she apologized for her actions.
Jonathan testified that he had been arrested for disorderly conduct, assault, and failure to pay fines during the pendency of the case. As to the assault charge, he explained that it involved a neighbor who had been harassing him but that he and Whitney had since moved and the issue had been resolved. He testified that he did not have a driver's license and that due to his disability, he is unable to understand or retain the information necessary to obtain a license. He stated that Whitney would obtain a license. He testified that his visitations with the children had gone well but that he had also noticed the bruises and the boils on them. He admitted that he had spanked the children frequently in the past but stated that he had learned to appropriately discipline the children through the parenting classes; he does not "believe" in spanking the children anymore. He agreed with Whitney that they had not attended counseling sessions because they had not received a referral from DHS.
Jessica Arden, a program assistant at DHS, testified that she had observed Whitney and Jonathan's visits with the children. She stated that Jonathan became bored during some visits and had ended a visitation early because he was uninterested in visiting only two of the children. She also discussed a visit during which Jonathan reported to her that he was hungry because they were waiting for their disability checks to arrive. On cross-examination, she acknowledged that Jonathan suffers from ADD and that the disability could hinder his concentration.
Joshua Henley, also a program assistant with DHS, testified that he had observed fourteen of Jonathan and Whitney's visitations and that he had witnessed Whitney "whip" the children on two occasions. Specifically, on February 19, 2016, he saw Whitney hit H.P.'s leg, and on November 16, 2016, he saw Whitney spank A.D. On both occasions, he informed Whitney that that form of discipline was not allowed. Henley further testified that Whitney's discipline of the children was not consistent and that she and Jonathan sometimes become irritated with each other.
Karen Pearson testified that she had a good relationship with Whitney and Jonathan until DHS filed the petition for termination of their parental rights. She also testified that she had referred them for counseling at Western Arkansas Guidance on November 4, 2016, but that they had not attended the sessions. She testified that she had called Whitney and notified her that the referral had been made.
Pearson voiced concerns with both Whitney's and Jonathan's anger problems. She explained that Jonathan has aggression issues and that Whitney cannot calm him. She referenced a staffing meeting where Whitney and Jonathan became upset with her, pushed a table, and stormed out of the room. She also testified that Jonathan had approached her in an aggressive manner when a visitation was canceled because he spoke negatively about DHS. She noted that Whitney became angry and that, from inside the building, she could hear Whitney yelling on the street. She further testified that Jonathan had left her a voicemail threatening to "blow up" her and the DHS building.
Pearson stated that Whitney and Jonathan had completed services, but she did not believe the services had benefited them. Specifically, Pearson did not believe that Whitney and Jonathan had learned to properly parent and discipline the children. She testified that the children are adoptable and that all of their placements had expressed interest in adopting them.
Brandon Chancey, G.D.'s foster parent, testified that when G.D. returns from a visit with Whitney and Jonathan, she suffers from high anxiety for about twenty-four to forty-eight hours. Chancey also discussed comments Whitney and Jonathan had made to him about the children. Specifically, they told him that the children's removal from their custody had been a "vacation" and that "no one wants the older two children because they are too much of a handful." They had also laughed and bragged to him about "telling Karen [Pearson] off." Chancey further testified that Jonathan stated that he is worried only about B.N. returning to his custody, not Whitney's other children.
Courtney Sweeney, A.D. and H.P.'s foster parent, testified that when A.D. and H.P. return from a visitation, they exhibit behavioral issues such as biting themselves and banging their heads against furniture and walls. She believed their behavioral changes could have been the result of seeing Whitney and Jonathan.
At the conclusion of the hearing, the circuit court orally terminated Whitney's and Jonathan's parental rights, and on June 30, 2017, the court entered a written termination order. The court found that the aggravated-circumstances ground supported termination. Specifically, the court found that there was little likelihood that services to the family would result in successful reunification because of Whitney's and Jonathan's "anger issues and violent tendencies." The court noted that it had observed "extreme levels of frustration" and "explosive anger" from Whitney and Jonathan and that they had failed to complete parenting-without-violence classes. The court further found it was in the best interest of the children to terminate their parental rights; that the children were adoptable; and that the children would be subjected to a great risk of potential harm if returned to Whitney and Jonathan's custody based on their unresolved anger issues, which the court found presented an emotional and physical danger to the children. Jonathan and Whitney separately appealed the termination order.
We review termination-of-parental-rights cases de novo. Lively v. Ark. Dep't of Human Servs. , 2015 Ark. App. 131, 456 S.W.3d 383. It is DHS's burden to prove by clear and convincing evidence that it is in a child's best interest to terminate parental rights as well as the existence of at least one statutory ground for termination. Id. On appeal, the inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made. Id. We give a high degree of deference to the circuit court, as it is in a far superior position to observe the parties before it and judge the credibility of the witnesses. Id. The termination of parental rights is a two-step process. The circuit court must find by clear and convincing evidence (1) the existence of one or more statutory grounds for termination and (2) that termination is in the best interest of the children. Wafford v. Ark. Dep't of Human Servs. , 2016 Ark. App. 299, 495 S.W.3d 96.
Jonathan and Whitney both argue that the circuit court erred in finding that the aggravated-circumstances ground supported termination. Whitney argues that the evidence is insufficient to show that there is "little likelihood" that services to her would result in successful reunification, because she complied with the case plan and court orders and benefited from DHS services. She further points out that the court relied on her anger problems in terminating her parental rights but that DHS did not make a referral for counseling until November 4, 2016, only a month before DHS filed its termination petition.
Jonathan asserts similar arguments on appeal. He argues that the evidence is insufficient to show that he did not benefit from DHS services and claims that there is no evidence that he displayed inappropriate parenting skills in the children's presence. Jonathan further argues that DHS failed to offer him timely and appropriate services based on his disability in violation of the Americans With Disabilities Act (ADA).
"Aggravated circumstances" means, among other things, that a determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(ix)(a)(3)(B)(i) (Repl. 2015). We have held that a finding of aggravated circumstances is not clearly erroneous when the evidence shows that a parent has not demonstrated that she has benefited from DHS services. See Brandau v. Ark. Dep't of Human Servs. , 2017 Ark. App. 87, 512 S.W.3d 636.
We hold that the circuit court did not err in finding that the aggravated-circumstances ground supported termination. The court concluded that, after receiving a year of services, Whitney and Jonathan had not addressed their anger problems. The evidence showed that Whitney and Jonathan had violent altercations with a DHS caseworker; Jonathan had been arrested for disorderly conduct and assault; Whitney had been arrested for disorderly conduct; and DHS workers had observed their aggressive behavior during visitations. Moreover, the circuit court observed their volatile temperament in the courtroom on the day of the termination hearing. Furthermore, Whitney and Jonathan were not in full compliance with the case plan: they failed to complete parenting-without-violence classes.
As to their arguments that DHS failed to offer them timely and appropriate services, the circuit court made findings throughout the case that DHS had provided them with reasonable services, and Whitney and Jonathan failed to object to those findings at the termination hearing; thus, they have waived the issue on appeal. See Yarbrough v. Ark. Dep't of Human Servs. , 2016 Ark. App. 429, 501 S.W.3d 839 (holding that an appellant waived the issue of whether appropriate services were provided to him when he failed to object to a prior reasonable-efforts finding at the termination hearing).
Both Jonathan and Whitney also argue that the circuit court erred in finding that it was in the children's best interest to terminate their parental rights. Whitney asserts the adoptability finding was clearly erroneous because DHS presented no evidence that it sought an adoptive home for the children as a sibling group. She additionally argues that there was insufficient evidence of potential harm because the evidence showed that she is a safe and stable parent who benefited from DHS services. She asserts that the circuit court's findings concerning her anger issues are wholly unsupported by the evidence. Jonathan does not challenge the court's adoptability finding but argues that there is insufficient evidence of potential harm. He asserts that he submitted to services and displayed improved parenting techniques.
We disagree. As to Whitney's challenge to the adoptability finding, the termination statute requires only that the court consider the likelihood that the child will be adopted. Brown v. Ark. Dep't of Human Servs. , 2017 Ark. App. 497, 529 S.W.3d 275. The circuit court is not required to find by clear and convincing evidence that the children are adoptable but merely must consider the likelihood of adoption if parental rights are terminated. Taylor v. Ark. Dep't of Human Servs. , 2017 Ark. App. 60, 511 S.W.3d 366. A caseworker's testimony that a child is adoptable is sufficient to support an adoptability finding. Brown , 2017 Ark. App. 497, 529 S.W.3d 275. Here, Pearson testified that the children are adoptable and that all their placements had expressed interest in adopting them.
As to potential harm, the evidence supporting the aggravated-circumstances finding also supports the court's potential-harm finding. In considering the potential harm caused by returning the child to a parent, the circuit court is not required to find that actual harm would result or to affirmatively identify a potential harm. Welch v. Ark. Dep't of Human Servs. , 2010 Ark. App. 798, 378 S.W.3d 290. Potential harm must be viewed in a forward-looking manner and in broad terms. Collins v. Ark. Dep't of Human Servs. , 2013 Ark. App. 90, 2013 WL 546940. Here, the circuit court found that the children would be at a risk of harm if returned to Whitney and Jonathan's custody because of their unresolved anger issues, which it found presented an emotional and physical danger to the children. And the evidence showed that Whitney and Jonathan displayed aggression throughout the pendency of the case. Accordingly, we hold that the circuit court did not clearly err in finding that termination of Whitney's and Jonathan's parental rights was in the children's best interest.
Affirmed.
Vaught and Hixson, JJ., agree.
The circuit court's order also terminated the parental rights of H.P. and G.D.'s father, Joshua Lawrence; however, he is not a party to this appeal.
The March 1, 2016 hearing was the first hearing that Whitney and Jonathan attended. They did not attend the probable-cause hearing or the adjudication hearing, but Whitney was represented by counsel at both of those hearings.
At a previous hearing, Whitney testified that she had eight parenting-without-violence classes remaining.
Whitney additionally complains that the circuit court failed to timely enter the termination order pursuant to Arkansas Code Annotated section 9-27-341(d). Our supreme court has held that a violation of this statute does not warrant reversal or any other sanction. Wade v. Ark. Dep't of Human Servs. , 337 Ark. 353, 990 S.W.2d 509 (1999). Further, the order entered by the circuit court was simply a written judgment of what the court had announced in open court; thus, Whitney has suffered no real prejudice because the order was entered simply to show that which actually occurred. See id.
Jonathan asserts that he raised his ADA argument to the circuit court when his attorney argued that DHS did not "meet the burden of clear and convincing [evidence] from all the progress, and considering the level of disability that's involved in this [case.]" We disagree. | [
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KENNETH S. HIXSON, Judge
Appellant Alicia Michelle Morris is the biological mother of her son, J.M., who was born on April 24, 2007. On May 27, 2009, an order of permanent guardianship was entered appointing appellee Jannelle Marie Clark as J.M.'s guardian. On August 18, 2016, Alicia filed a motion to terminate the guardianship and for J.M. to be placed in her custody. On March 10, 2017, the trial court entered an order denying Alicia's petition.
Alicia now appeals from the trial court's order denying her petition to terminate the guardianship. For reversal, Alicia argues that the trial court misapplied the applicable guardianship statute, Ark. Code Ann. § 28-65-401(b)(3) (Repl. 2012), and that the trial court erred in failing to give weight to her fundamental right to the care, custody, and control of her child. We affirm.
We review probate proceedings de novo, but we will not reverse a finding of fact by the trial court unless it is clearly erroneous. Graham v. Matheny , 2009 Ark. 481, 346 S.W.3d 273. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. We, however, give no deference to the trial court with respect to matters of law. Stautzenberger v. Stautzenberger , 2013 Ark. 148, 427 S.W.3d 17.
The pertinent facts and procedural history are as follows. On July 21, 2007, when J.M. was almost three months old, Alicia signed a nonbinding document consenting to place the child in the custody of Jannelle, who is the child's cousin. Thereafter, J.M. resided in Pine Bluff with Jannelle and Jannelle's mother (Alicia's half-sister). Jannelle became the child's primary caregiver.
On February 17, 2009, Jannelle filed a petition to be appointed J.M.'s guardian. In the petition Jannelle alleged that she had been providing for and caring for the child; that Alicia had not visited or provided support for the child; and that Alicia had criminal charges pending against her. Alicia filed a response, contesting Jannelle's petition. After a hearing, the trial court, on May 27, 2009, entered an order appointing Jannelle as J.M.'s permanent guardian subject to Alicia's reasonable visitation. For the next several years, J.M. remained in Jannelle's custody in Pine Bluff.
Seven years later, on August 18, 2016, Alicia filed a petition to terminate the guardianship. In the petition, Alicia alleged that the prior criminal charges against her had been nolle prossed. Alicia further alleged that she lived in a suitable home in West Memphis raising her two older children, that she was gainfully employed, and that she was a fit parent. The petition also stated that Jannelle had not abided by the visitation order and had only allowed her only sporadic visitation with J.M. The petition further stated that, about a month earlier, Jannelle was homeless and had temporarily moved into Alicia's home with J.M. Finally, Alicia alleged that she and J.M. had bonded and established a strong parent-child relationship, and also that J.M. was bonded with his two older siblings. Jannelle filed a response, requesting that Alicia's petition to terminate the guardianship be denied. The trial court subsequently held a hearing on the petition.
Alicia testified that she lives with her two older sons and her boyfriend in West Memphis. Alicia stated that J.M. previously needed a guardian due to Alicia's criminal charges, but that the charges had been dropped and she had been in no further criminal trouble. Alicia stated that she is now stable, her life is in order, and she has full-time employment. Alicia stated that she had tried to visit her child regularly but that Janelle had denied her visitation. As a result, Alicia had only visited J.M. about ten times. Alicia testified that she wanted to be a mother to J.M., and asked that the guardianship be terminated.
In support of her position that the guardianship should remain in force, Jannelle testified that she and J.M. had lived in Pine Bluff for several years, but that she had recently brought J.M. to West Memphis in an attempt to foster a relationship between J.M. and Alicia and the child's siblings. Jannelle denied ever being homeless, and stated that, after temporarily staying with Alicia, she and J.M. moved to a place in Memphis. Jannelle works in a nursing home in Memphis, and also works part-time every other weekend in Pine Bluff. When Jannelle works in Pine Bluff, she takes J.M. to stay with Jannelle's mother. Jannelle acknowledged that she had changed J.M.'s last name to that of Jannelle's ex-boyfriend, who had since gone to prison and been recently paroled. Jannelle denied withholding Alicia visitation with J.M., stating that she had no objection to Alicia visiting the child. However, Jannelle testified she wanted to remain J.M.'s guardian.
J.M., who is now ten years of age, also testified. J.M. stated that he loves his mother, Alicia, as well as his older brothers. However, J.M. stated that he wanted to continue living with Jannelle and have visitation with Alicia.
On March 10, 2017, the trial court entered an order denying Alicia's petition to terminate the guardianship. In the trial court's order, it made the following pertinent findings and conclusions:
1. The natural mother showed that the conditions that made it necessary for this guardianship no longer exist. The felony charge was nolle prossed. It would appear that the natural mother's personal life is stable. From the proof, this court concluded that the natural mother is experiencing residential instability.
2. The guardian has shown that it is in the welfare and best interest of the child that this guardianship continues. This child has had very little contact with his natural mother from the time he was three months old until now. The child is adjusted after being in the care of this guardian. Moreover, the child wishes to remain in the custody of the guardian.
On appeal from the order denying her motion to terminate the guardianship, Alicia argues that the trial court misapplied the applicable guardianship statute, and that proper weight was not given to her fundamental rights as the biological parent.
Guardianships are special proceedings that are governed by statute. Hetman v. Schwade , 2009 Ark. 302, 317 S.W.3d 559. Under the guardianship statute, a guardianship may be terminated if "the guardianship is no longer necessary or for the best interest of the ward." Ark. Code Ann. § 28-65-401(b)(3) (Repl. 2012).
The cases interpreting the termination-of-guardianship statute have been in, and apparently continue to be in, a state of flux and ongoing clarifications. The pertinent line of supreme court cases began with Graham v. Matheny , 2009 Ark. 481, 346 S.W.3d 273, and was followed by In re Guardianship of S.H. (1) , 2012 Ark. 245, 409 S.W.3d 307, and In re Guardianship of S.H. (2) , 2015 Ark. 75, 455 S.W.3d 313. Finally, in 2015, in what appeared to be a significant departure from the historical interpretation of the statute, the supreme court delivered In Re Guardianship of W.L. , 2015 Ark. 289, 467 S.W.3d 129.
In In re W.L. , our supreme court gave a somewhat reformed interpretation to the guardianship-termination statute in a case involving a fit parent, and stated that, to the extent Graham , In re S.H. (1) , and In re S.H. (2) were in conflict with its decision, they were overruled. In In re W.L. , the supreme court pointedly discussed a parent's fundamental right to raise his or her children and the history and the disjunctive nature of the guardianship-termination statute, and stated:
We have already said that a guardianship is no longer necessary once a fit parent revokes an earlier-given consent. This is because a fit parent is presumed to
be acting in the child's best interest. By petitioning to terminate the guardianship and revoking consent, the fit parent, who has the child's best interest at heart, informs the court that the guardianship is no longer necessary. That is sufficient to meet the statutory requirement where the court "may" terminate the guardianship. In other words, a guardianship is no longer necessary-per the statute-when a fit parent revokes consent. The fit parent does not have to prove anything else. The statute does contain another method for the guardianship to be terminated, that is, by showing it is no longer in the ward's best interest. However, given that the legislature has created a disjunctive test, the parent can move to terminate under either prong.
This ruling is consistent with the statutory text and a fit parent's fundamental liberty interest in the care, control, and custody of his or her child. Furthermore, the burden of proof does not and cannot shift to the guardians when a guardianship is terminated based on a fit parent's revocation of consent. Simply put, a fit parent's decision regarding his or her children is conclusive.
In re W.L. , 2015 Ark. 289, at 7-8, 467 S.W.3d at 133-34 (emphasis added). Hence, In re W.L. appeared to be the clarification of the guardianship-termination statute.
However, only one year after In re W.L. was delivered, the supreme court again reentered the guardianship-termination statute-interpretation fray and delivered Donley v. Donley , 2016 Ark. 243, 493 S.W.3d 762. While the supreme court did not overrule In re W.L ., the Donley court did significantly clarify the holding of In re W.L . The circumstances of Donley were similar to those in In re W.L. in that a fit parent revoked consent and petitioned to have the guardianship terminated. In Donley , the trial court found that, despite the fact that a fit mother revoked her consent (which should have entitled her to the fit-parent presumption), the fit mother failed to establish her case-in-chief that the guardianship should be terminated. The trial court further found that the guardianship was still necessary and that it was not in the child's best interest to terminate the guardianship. The trial court, therefore, denied the petition to terminate the guardianship. However, the supreme court in Donley held that the trial court had incorrectly applied the law by failing to apply the fit-parent presumption and reversed. In discussing the fit-parent presumption, the Donley supreme court wrote:
Based on our holding in In re W.L. , here, ... [the mother] was a fit parent, revoked her consent to the guardianship, and the burden shifted to [the guardian] to demonstrate that the guardianship was still necessary or in [the child's] best interest. Stated differently, when [the mother] revoked her consent, the statute was triggered, the presumption applied and the burden shifted to [the guardian].
Donley , 2016 Ark. 243, at 11, 493 S.W.3d at 769 (emphasis added). While the Donley opinion's language with respect to the "burden shifting" to the guardian may appear to conflict with In re W.L ., the above-cited "burden-shifting" language in Donley is the latest pronouncement on the guardianship-termination interpretation issued by our supreme court and, hence, is the controlling precedent.
Both below and on appeal, Alicia relied on In re W.L. Alicia's reliance on In re W.L . is misplaced. Alicia argued that based on our supreme court's holding in In re W.L. , that where a fit parent revokes her consent to the guardianship, a fit parent's decision regarding his or her children is conclusive and, therefore, the guardianship is no longer necessary. Ergo, according to Alicia, because the statutory language is disjunctive, the guardianship should be terminated. While that argument may have been dispositive under In re W.L. , that argument is no longer dispositive, and our analysis must be guided by our supreme court's later holding in Donley , as this reflects its most recent interpretation of the guardianship-termination statute and how it must be applied.
Turning to the facts of the present case, Alicia was never found by the trial court to be an unfit parent. In fact, in the March 10, 2017 order denying Alicia's petition to terminate the guardianship, the trial court specifically stated that the trial court did not find the natural mother to be unfit in its previous May 27, 2009 order appointing Jannelle as J.M.'s permanent guardian. Nor did the trial court make any finding of unfitness in the March 10, 2017 order.
Applying our supreme court's most recent holding in Donley , Alicia, as a fit parent, was presumed to be acting in J.M.'s best interest when she petitioned to terminate the guardianship. By petitioning the trial court for termination of the guardianship, Alicia was informing the court that the guardianship was no longer necessary. Per Donley , when Alicia, a fit parent, petitioned to terminate the guardianship, Alicia was entitled to the fit-parent presumption and the burden then shifted to Jannelle, the guardian, to demonstrate that the guardianship was still necessary or that the guardianship was in J.M.'s best interest.
In this case, the trial court found that Alicia had shown that the conditions that made it necessary for the guardianship no longer existed, stating that the criminal charges against her had been dropped and that her personal life appeared to be stable. While the trial court did not use the phrase "fit-parent presumption" in its order, it does appear that the trial court applied the fit-parent presumption and proceeded to allow the burden to shift to the guardian, Janelle, to prove that the guardianship was still necessary or that it was in the best interest of the ward as required by Donley . The trial court made the following conclusions: "2. The guardian has shown it is in the welfare and best interest of the child that the guardianship continues. " The trial court, thereafter, dismissed the appellant's petition to terminate the guardianship. In reaching these conclusions, the trial court relied on the evidence that J.M. had very little contact with his natural mother from the time he was three months old, that J.M. was well adjusted after being in Jannelle's care, and that J.M. wished to remain in Jannelle's custody. In so doing, the trial court effectively applied the burden-shifting standard announced by our supreme court in Donley , and found that the guardian had met her burden of proving that continuing the guardianship was still in J.M.'s best interest. We conclude on this record that the trial court did not clearly err in finding that Jannelle met her burden of showing that the guardianship was in J.M.'s best interest, and therefore we affirm the trial court's order denying Alicia's petition.
Finally, we observe that, although it is not listed as a separate point on appeal, Alicia also cites in her brief Ark. Code Ann. § 28-65-401(b)(2), which provides that "[a] guardianship may be terminated by court order after such notice as the court may require [i]f the ward becomes a nonresident of this state." However, Alicia did not argue in either her petition to terminate the guardianship or in her posttrial brief to the trial court that the guardianship should be terminated because J.M. was no longer a resident of this state, nor did the trial court make a finding on the issue in its order denying Jannelle's petition.
Therefore, we need not address the allegation that J.M. had become a nonresident or that the guardianship should have terminated on that ground.
Affirmed.
Abramson and Vaught, JJ., agree.
Alicia subsequently filed a motion for reconsideration, which was denied.
This was the guardianship statute in effect when the trial court entered the order being appealed. The statute has since been amended to replace "or" with "and," see Ark. Code Ann. § 28-65-401(b)(3) (Supp. 2017), but the amended version of the statute is not applicable here.
Although the trial court in Donley had found the mother to be unfit, the supreme court reversed that finding, stating that although the mother had been found to be unfit in a temporary guardianship order, that order expired upon entry of the permanent guardianship, wherein the trial court made no finding of parental unfitness. The supreme court held that because the temporary order expired and was superseded by entry of the permanent order, from the time the permanent order was entered the fit-parent presumption applied. | [
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RAYMOND R. ABRAMSON, Judge
The parties were divorced by decree of the Saline County Circuit Court in 2012. Appellee Melissa Warner has custody of the parties' daughter, S.W., who turned 18 years old in February 2017. On August 21, 2017, Melissa filed a motion to modify child support and to compel disclosure of income information. S.W. had been diagnosed with neurocardiogenic syncope, and Melissa sought to continue appellant Russell Warner's support obligation past S.W.'s 19th birthday. After a hearing, the circuit court found that child support should continue and entered an order extending child support past the age of majority. On appeal, Russell argues that there was insufficient evidence to support the circuit court's determination that the parties' adult child suffered from a disability at the time of her majority when it extended his obligation to continue to pay child support. We disagree and affirm.
Our standard of review for an appeal from a child-support order is de novo on the record, and we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Ward v. Doss , 361 Ark. 153, 205 S.W.3d 767 (2005). A finding is clearly erroneous, even though there is evidence to support it, if the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Deluca v. Stapleton , 79 Ark. App. 138, 84 S.W.3d 892 (2002). In reviewing a circuit court's findings, we give due deference to that court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Ward , supra.
The sole issue on appeal is whether the circuit court properly ordered that support continue beyond the age of majority. The custodial parent seeking continued support bears the burden of proving that support should continue. Harris v. Harris , 82 Ark. App. 321, 107 S.W.3d 897 (2003).
Arkansas Code Annotated section 9-14-237 provides that:
(a)(1) Unless a court order for child support specifically extends child support after these circumstances, an obligor's duty to pay child support for a child shall automatically terminate by operation of law:
(A) When the child reaches eighteen (18) years of age, unless the child is still attending high school;
(B) If the child is still attending high school, upon the child's high school graduation or the end of the school year after the child reaches nineteen (19) years of age, whichever is earlier.
Ark. Code Ann. § 9-14-237 (a)(1)(A), (B) (Repl. 2015).
A parent ordinarily has no legal obligation to support a child beyond age eighteen. However, a parent may have a duty to provide continuing support to a child who is disabled upon reaching her majority. See Elkins v. Elkins , 262 Ark. 63, 553 S.W.2d 34 (1977) ; Petty v. Petty , 252 Ark. 1032, 482 S.W.2d 119 (1972). Our supreme court recognized in Petty that the onus of supporting the disabled child should not be borne solely by one parent.
As our court stated in Guthrie v. Guthrie , 2015 Ark. App. 108, 455 S.W.3d 839 :
The common-law duty to support a disabled adult child, set forth in Petty and Elkins, was not included in section 9-14-237 when the legislature enacted that statute in 1993. The statute's automatic-termination provision made no exception for disabled children. Nevertheless, since 1993, our courts have continued to recognize a parent's ongoing duty to support a disabled adult child. See Bagley v. Williamson , 101 Ark. App. 1, 269 S.W.3d 837 (2007) ; Davis v. Davis , 79 Ark. App. 178, 84 S.W.3d 447 (2002) ; Kimbrell v. Kimbrell , 47 Ark. App. 56, 884 S.W.2d 268 (1994).
Id. at 4-5, 455 S.W.3d at 843.
S.W. suffers from neurocardiogenic syncope, an autonomic dysfunction that causes an abnormal reflux between her brain and heart that causes her to faint. Her health condition first presented when she was sixteen years old when she had her first fainting episode in December 2015. Since that time, she has had at least two fainting or near fainting episodes every day. S.W. described her symptoms as dizziness, light-headedness, loss of vision, loss of hearing, weakness, and feeling like she will collapse. Since her diagnosis, S.W. has been completely dependent on her mother.
Patrick Stage, a nurse practitioner, who is part of S.W.'s medical team at the Arkansas Heart Hospital, testified at the hearing. At the time of trial, her condition was not stable, and Stage confirmed that S.W.'s neurocardiogenic syncope was "severe" and "debilitating." S.W. cannot work and must attend school at home. She cannot drive. She cannot live independently until she stops having fainting spells. Stage confirmed that S.W. will be dependent on someone like a parent for the foreseeable future.
Prior to her illness, S.W. was an honor student at Bauxite High School. Her guidance counselor testified at the hearing that she expected S.W. to graduate with honors and that S.W. planned to go to college. When S.W. got sick her junior year of high school, she missed twenty-five days of school and completed only four courses. During what should have been her senior year of high school (the 2016-2017 school year), she earned only half a credit. At the time of the hearing, S.W. was currently in school at home and taking classes through Miner Academy, a charter school within the Bauxite School District. She had not yet graduated. S.W., Melissa, and Russell all testified at the hearing. Russell presented no evidence to dispute that S.W. was disabled upon reaching age eighteen and that she remained so at the time of the hearing.
On appeal, Russell relies on Towery v. Towery , 285 Ark. 113, 685 S.W.2d 155 (1985), and its holding that a court cannot reimpose a legal duty of child support once that duty has ceased. Towery , however, is distinguishable from the case before us. The child in Towery was healthy upon reaching his majority but became disabled after turning eighteen. The Towery court held that under those circumstances, the duty of parental support could not be revived. Yet, the court was also careful to note that the duty of support does not terminate if the child is disabled at the age of majority , as is the case here.
Based on the evidence presented about S.W.'s medical condition, the circuit court found that she (1) suffered from a disability at the time she reached the age of majority; (2) continues to suffer from this disability; and (3) needs continued support. Specifically, the circuit court's order included the following findings:
[S.W.] has been diagnosed with neurocardiogenic syncope, which renders her unable to live independently. She is currently repeating her senior year of high school as a result of this illness. [S.W.] is unable to work, unable to drive, and cannot live on her own at this time. [S.W.]'s disability began before she attained the age of majority and continues beyond the age of majority.
Given our standard of review and the record before us, we hold that the circuit court did not clearly err in continuing child support for S.W. beyond the age of majority based on its findings that S.W. was disabled at the time she reached the age of majority and needed continued support. Accordingly, we affirm.
Affirmed.
Harrison and Murphy, JJ., agree. | [
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BART F. VIRDEN, Judge
A Garland County jury convicted appellant Benjamin Pitts of second-degree murder, two counts of first-degree battery, possession of a firearm by certain persons, and aggravated residential burglary. Pitts was sentenced to an aggregate term of eighty years in the Arkansas Department of Correction (ADC). Pitts raises two points on appeal. He does not challenge the sufficiency of the evidence supporting his convictions. Rather, he argues that the trial court erred in denying his motion to dismiss for violation of his right to a speedy trial and in denying his motion to suppress custodial statements made to his parole officer. We affirm.
I. Motion to Dismiss on Speedy-Trial Grounds
As relevant here, Arkansas Rules of Criminal Procedure 28.1(b) and 28.2(a) require the State to bring a criminal defendant to trial within twelve months from the date of his or her arrest, excluding only such periods of necessary delay as are authorized by Rule 28.3. If a defendant is not brought to trial within the requisite time, he or she is entitled to have the charges dismissed with an absolute bar to prosecution. Ark. R. Crim. P. 30.1(a). Once it has been shown that a trial will be held after the speedy-trial period set out in Rule 28.1 has expired, the State bears the burden of proving that the delay was the result of the defendant's conduct or was otherwise justified. Miles v. State , 348 Ark. 544, 75 S.W.3d 677 (2002). This court conducts a de novo review to determine whether specific periods of time are excludable under the speedy-trial rules. Federick v. State , 2012 Ark. App. 552, 423 S.W.3d 649.
The parties agree that Pitts was arrested on May 8, 2014, and that the time for trial commenced to run from that date. He was ultimately tried on October 23, 2017, or 1,264 days after his arrest. Because the trial was held well outside the twelve-month period allowed, the burden shifted to the State to show that Pitts was tried within twelve months once certain periods are properly excluded.
Pitts admits that any time after May 19, 2015, was properly charged to him. There are 376 days between Pitts's arrest on May 8, 2014, and May 19, 2015. In other words, the State must account for an additional eleven days that went beyond the twelve-month period allowed. Pitts maintains that there are only three periods at issue here: October 7 to November 18, 2014; November 18 to December 17, 2014; and January 20 to May 19, 2015. Exclusion of any one of these periods would make Pitts's trial timely, rendering a discussion of the other time periods unnecessary. We address the first period comprising forty-two days.
After his arrest, Pitts was held in the ADC for a parole violation. An omnibus hearing had been scheduled for October 7, 2014. On that date, the trial court was told that Pitts had not been transported to court for the hearing. During a discussion regarding the rescheduling of the hearing, the trial court expressed concern about a delay creating an issue with respect to speedy trial. Defense counsel said, "I'm going to take the time with the understanding if you will make a note that we did do a transport order, it was signed and delivered and it was not acted on." The trial court responded, "So noted. The time between this date and November 18, 2014, is excluded for speedy trial." The trial court documented on the docket that the time was excluded for speedy-trial purposes.
At the hearing on Pitts's motion to dismiss for violation of the speedy-trial rules, which was filed on October 6, 2017, the prosecutor argued that the reason Pitts could not be transported on October 7, 2014, was because of his misconduct at the ADC. Pitts then testified and claimed that the reason he had not been transported was because the detention center had been short staffed. In its subsequent order denying Pitts's motion to dismiss, the trial court ruled that, whether Pitts was not transported due to an altercation or a staff shortage, defense counsel had said that he would "take the time."
On appeal, Pitts makes several arguments that the trial court erred in excluding the period from October 7 to November 18, 2014. Our supreme court has said that the time to raise the issue of whether a certain period is excludable is at the hearing where excludability is discussed. Mack v. State , 321 Ark. 547, 905 S.W.2d 842 (1995) ; Bowen v. State , 73 Ark. App. 240, 42 S.W.3d 579 (2001). At the time this period was excluded not only did Pitts's counsel not object to the time being charged to Pitts, he expressly agreed to "take the time" for speedy-trial purposes. Accordingly, Pitts waived any complaint about the propriety of excluding those forty-two days by not objecting below. See DeAsis v. State , 360 Ark. 286, 200 S.W.3d 911 (2005) ; Autrey v. State , 90 Ark. App. 131, 204 S.W.3d 84 (2005). Excluding this period, Pitts was tried 334 days after his arrest, which is less than the twelve-month period prescribed by the speedy-trial rules.
II. Motion to Suppress Custodial Statements
On April 30, 2014, Steve Swanigan entered an apartment and began shooting the occupants. The home invasion left one young woman dead, and a man and child were injured. Swanigan and a cohort, who had entered the apartment after him, fled the complex together in a vehicle. Circumstantial evidence at trial established that Pitts was that cohort. Pitts was arrested eight days later and held in jail. Five days after his arrest, Courtney Henry, Pitts's parole officer, visited him at the jail to read a parole-violation report based on the new charges he faced. Pitts made several statements to her that he later moved to suppress.
At the suppression hearing, Henry testified that on May 12, 2014, she went to the jail to serve Pitts with a parole-violation report. When Henry informed Pitts that he had been charged with capital murder, he said, "Why do they not have an accessory law in Arkansas?" Henry asked Pitts if he was an accessory, to which he responded, "Well, I'm not a capital murderer." According to Henry, Pitts said that he should not have been charged with capital murder and that no motive could be proved. She said that Pitts had initially used the pronoun "we," before stopping midsentence to instead say "they," when referring to the police's lack of understanding why the perpetrators committed the crime. Henry said that Pitts had stated that the police did not know whether the suspects had gone to the home to rob the place, talk with someone, or "deal with a prior situation between people." Henry said that Pitts-not in response to questioning-discussed the lack of evidence against him. For example, he stated that he knew that his face was not shown on camera. Henry testified that she saw Pitts again the following day, May 13, to notify him of his right to a hearing. She said that Pitts again spoke of the evidence against him and what he had told investigators without any questioning by her, aside from asking whether he wished to waive the hearing. Henry admitted that, although Pitts was in custody, she did not read him Miranda warnings before speaking with him on either day. She explained that she had been "acting under the scope of a parole officer, not an investigator."
The trial court denied Pitts's motion to suppress and found that he had made spontaneous statements to Henry that were not in response to questioning or interrogation. The trial court also found that Pitts had been advised of his Miranda rights on May 7, 2014, five days before he spoke with Henry, so he was aware of his rights at the time he made the spontaneous statements to Henry.
A statement made while in custody is presumptively involuntary, and the burden is on the State to prove by a preponderance of the evidence that a custodial statement was given voluntarily.
Mosby v. State , 2018 Ark. App. 139, 544 S.W.3d 78. When reviewing the trial court's determination involving the voluntariness of a confession, we review the totality of the circumstances. Id. We will reverse a trial court's ruling only if it is clearly against the preponderance of the evidence. Id. Evaluating the credibility of witnesses who testify at a suppression hearing about the circumstances surrounding an appellant's custodial statement is for the trial court to determine, and this court defers to the trial court in matters of credibility. Id.
The United States Constitution's Fifth Amendment prohibition against compelled self-incrimination requires that an accused be given a series of warnings, including that the accused has the right to remain silent and the right to the presence of an attorney, before he or she is subjected to "custodial interrogation." Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of the police officers that they should have known were reasonably likely to elicit an incriminating response.
Rhode Island v. Innis , 446 U.S. 291, 300-02, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (emphasis in original) (footnotes omitted). A suspect's spontaneous statement while in police custody is admissible, and it is irrelevant whether the statement was made before or after Miranda warnings because a spontaneous statement is not compelled or the result of coercion under the Fifth Amendment's privilege against self-incrimination. Fricks v. State , 2016 Ark. App. 415, 501 S.W.3d 853. Moreover, a voluntary custodial statement does not become the product of an interrogation simply because an officer asks a defendant to explain or clarify something he or she already said voluntarily. Anderson v. State , 2011 Ark. 461, 385 S.W.3d 214.
On appeal, Pitts argues that Henry's reading of the parole-violation report, along with his new charges, including capital murder, was the functional equivalent of an interrogation because it was likely to elicit an incriminating response. Alternatively, he contends that he was subjected to express questioning by Henry when she asked whether he was an accessory to capital murder because she was actively seeking an incriminating response. He argues that, either way, Henry, as a law-enforcement official, was required to read him his Miranda rights and that her failure to do so rendered his statements to her inadmissible.
While we reject Pitts's assertion that Henry's reading of a parole-violation report was the functional equivalent of an interrogation, Henry's question whether Pitts was an accessory to capital murder is more troubling. Although Henry confidently testified at trial that, as Pitts's parole officer, she was not required to give him Miranda warnings, we point out that there is a growing trend toward accepting that probation and parole officers must advise probationers and parolees in police custody of Miranda warnings before any questioning. In Minnesota v. Murphy , 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), the United States Supreme Court suggested in a footnote that a parolee in police custody being interviewed by a parole officer may be entitled to Miranda warnings. Id. at 429 n. 5, 104 S.Ct. 1136. See also Fowler v. State , 2010 Ark. App. 23, 2010 WL 135209, vacated and affirmed on other grounds , 2010 Ark. 431, 371 S.W.3d 677 ; Beavers v. State , 2015 Ark. App. 124, 456 S.W.3d 783 (Virden, J., concurring).
Under the circumstances presented, however, we need not decide whether Henry's failure to give Pitts Miranda warnings before asking him the question whether he was an accessory rendered his statements inadmissible. This is because Pitts does not challenge the trial court's ruling that he was aware of his rights when he made statements to Henry given that he had received Miranda warnings five days before her visit. There is no constitutional requirement that a suspect be warned of his or her Miranda rights each time the suspect is questioned. Williams v. State , 363 Ark. 395, 214 S.W.3d 829 (2005). There is likewise no mechanical formula for measuring the longest permissible interval between the last warning and the confession. Id. Miranda warnings need only be repeated when the circumstances have changed so seriously that the accused's answers are no longer voluntary, or the accused is no longer making a knowing and intelligent relinquishment or abandonment of his or her rights. Id.
Here, Pitts does not argue that the prior Miranda warnings were insufficient to advise him of his rights; rather, he focuses on Henry's failure to readvise him of those rights. Given Pitts's failure to acknowledge, much less attack, what is an independent and alternative basis for the trial court's ruling, we must affirm the denial of Pitts's motion to suppress the custodial statements he made to his parole officer. Pugh v. State , 351 Ark. 5, 89 S.W.3d 909 (2002).
Affirmed.
Klappenbach and Whiteaker, JJ., agree.
Rule 28.2(a) provides that the time for trial shall commence running from the date of arrest or service of summons. | [
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WAYMOND M. BROWN, Judge
The Perry County Circuit Court granted permanent custody of the minor children, M.G.1, C.G., K.G., and M.G.2, to Lawrence and Melissa Gabbard and closed the dependency-neglect case that appellee Arkansas Department of Human Services (DHS) had brought against the children's parents, Jacklyn and Micah Gabbard. The minor children appeal, arguing that the court's order should be reversed because (1) the court failed to make a not-best-interest finding; (2) no written home study was presented to the court, so there was insufficient evidence to support the court's custody decision; and (3) the court failed to give the statutory required notice that the case would be closed. We dismiss for lack of jurisdiction because appellants failed to file a timely notice of appeal.
DHS took emergency custody of appellants on September 20, 2017. An ex parte petition for emergency custody and dependency-neglect was filed on September 22, 2017. An ex parte order for emergency custody was filed the same day, placing appellants in the custody of DHS. The probable-cause order of September 25, 2017, continued appellants in DHS's custody but mentioned a provisional placement. Appellants were adjudicated dependent-neglected as a result of parental unfitness and neglect by Jacklyn in an order filed on November 8, 2017. That order also found that Micah contributed to the dependency-neglect by agreeing to leave appellants in Jacklyn's care following their divorce, knowing her drug history. In the review order of March 7, 2018, the court indicated that the case goal was reunification with a concurrent goal of relative placement/guardianship. The order found that appellants should remain out of the custody of Jacklyn and noted that appellants were in the foster home of their aunt and uncle where their needs were being met.
Appellants filed a motion to suspend visitation and for no contact against Jacklyn on April 6, 2018. Jacklyn filed a response on April 20, 2018, asking the court to deny the motion. The court entered an order on April 23, 2018, suspending visitation and ordering no contact between Jacklyn and appellants.
The permanency-planning hearing (PPH) took place on August 27, 2018. At the hearing, DHS, the attorney ad litem, M.G.1, Lawrence, and Melissa all advocated for the termination of Jacklyn's and Micah's parental rights over permanent custody. The court took the testimony under advisement. It issued a PPH order and order of permanent custody on September 14, 2018, granting permanent custody of appellants to Lawrence and Melissa Gabbard and closing the case.
The attorney ad litem filed a motion for relief from judgment, decree, or order pursuant to Rule 60 of the Arkansas Rules of Civil Procedure on September 24, 2018, on behalf of appellants. Jacklyn filed a response on October 8, 2018, asking the court to dismiss the motion. A notice of appeal was filed on behalf of appellants on October 12, 2018, appealing the court's September 14, 2018 order. The court entered an order on October 23, 2018, denying appellants' Rule 60 motion. An amended notice of appeal was filed on November 2, 2018, appealing both the September 14 and October 23 orders.
The burden of proof in dependency-neglect proceedings, including permanency-planning hearings, is by a preponderance of the evidence. The standard of review is de novo, but we, giving due deference to the circuit court's superior position to observe the parties and judge the credibility of the witnesses, will not reverse the circuit court's ruling in a dependency-neglect case unless the ruling was clearly erroneous or clearly against the preponderance of the evidence. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Deference to the circuit court is even greater in cases involving child custody, as a heavier burden is placed on the circuit court to use to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children.
As an initial matter, we must determine whether appellants' October 12, 2018 notice of appeal was timely filed. In Ashcroft v. Arkansas Department of Human Services , our supreme court specifically held that posttrial motions will not extend the time for filing the notice of appeal in dependency-neglect cases:
Rule 6-9 sets twenty-one days as the time within which the notice of appeal must be filed in cases involving dependency neglect. Ark. Sup. Ct. R. 6-9(b)(1) (2009). In addition, Rule 6-9(b)(4) states that "[t]he time in which to file a notice of appeal or a notice of cross-appeal and the corresponding designation of record will not be extended." The express purpose of Rule 6-9(b) is to expedite the appellate process in dependency-neglect cases. Ratliff v. Ark. Dep't of Health & Human Servs. , 371 Ark. 534, 268 S.W.3d 322 (2007) (per curiam). Although Rule 4(b)(1) of the Arkansas Rules of Appellate Procedure-Civil allows the deadline for a notice of appeal to be extended where certain post-trial motions have been filed, we have held that we will not extend that rule to dependency-neglect cases because doing so would vitiate the purpose of Rule 6-9(b). Ratliff , 371 Ark. at 535, 268 S.W.3d at 323.
Here, appellants' notice of appeal for the September 14, 2018 order was not filed until October 12, 2018, approximately twenty-eight days after the order was entered. Therefore, it was untimely. Although appellants filed a Rule 60 posttrial motion and notice of appeal from the court's denial of that motion, it was outside of the twenty-one-day limit set in our Rules. Our supreme court has been clear that posttrial motions will not extend the time in which to file an appeal from dependency-neglect cases. Because appellants failed to file a timely notice of appeal, we dismiss for lack of jurisdiction.
Dismissed.
Harrison, J., agrees.
Hixson, J., concurs.
Anderson v. Ark. Dep't of Human Servs. , 2011 Ark. App. 522, 385 S.W.3d 367 (citing Ark. Code Ann. § 9-27-325(h)(2)(B) (Supp. 2017)).
Churchill v. Ark. Dep't of Human Servs. , 2012 Ark. App. 530, 423 S.W.3d 637.
Id.
Ashcroft v. Ark. Dep't of Human Servs. , 2010 Ark. App. 244, 374 S.W.3d 743.
2009 Ark. 461, at 2-3. | [
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] |
LARRY VAUGHT, Judge
This is an appeal from a decree of divorce that the Circuit Court of Craighead County entered on March 15, 2017, granting the appellee, Karen Roach, an absolute divorce from the appellant, Donnie Joe Roach (Joe). Joe appeals the decree and raises three arguments for reversal. Karen cross-appeals, arguing that the circuit court failed to divide commercial real property that the couple owned during the marriage. We dismiss the appeal and the cross-appeal without prejudice for lack of a final order.
Karen and Joe Roach were married on April 19, 1987, while they were college students in Monroe, Louisiana. The couple remained in Louisiana after graduation, whereupon Joe attended pharmacy school and Karen worked as the morning disc jockey at a local radio station. The couple moved to Jonesboro, Arkansas, following Joe's graduation in 1991. Joe worked as a pharmacist at various locations in Jonesboro and Blytheville. Karen worked at a radio station in Arkansas until the couple's first son, John, was born on May 17, 1992. Karen thereafter remained at home to care for John and his three younger siblings.
In October 2001, the couple purchased a pharmacy business that they would later rename Family Care Pharmacy in Marked Tree, Arkansas. Joe filled prescriptions and managed the business. Karen worked part time as a pharmacy technician and bookkeeper after the couple's youngest child began school in 2005.
The couple acquired additional property and business interests during their marriage, including Action Medical, a medical-supply store, in Truman, Arkansas. They also purchased several properties, including the commercial buildings where Family Care Pharmacy and Action Medical are located, and several residential properties in Northeast Arkansas and Memphis. One of the properties, located in Jonesboro, was the marital residence when the couple separated on June 10, 2012.
Karen filed a complaint for divorce on August 10, 2012, alleging general indignities and seeking custody of the couple's two minor children. She also requested child support, alimony, a division of the couple's substantial marital property, and attorney's fees and costs. Joe counterclaimed for divorce on September 10, 2012, also alleging general indignities. He likewise sought custody of the minor children, a division of the marital assets, child support, and attorney's fees and costs.
On October 9, 2012, the circuit court entered a temporary order that awarded Karen custody of the minor children, child support in the amount of $3,000 a month, and spousal support in the amount of $2,000 a month. The court further ordered that Joe shall have visitation with the children, and "each party shall pay one-half of [the children's] medical, dental, orthodontic, optical, and prescription medical expenses" not covered by insurance. Finally, the court ordered that Joe "shall receive all rental income on all rental properties owned by the parties, pendente lite, with an accounting of all income[.]"
Karen filed a petition for contempt on March 20, 2015. In that petition, Karen alleged that Joe "refused" to pay child support in a timely manner; that he had "engaged in harassing behavior directed toward [Karen]"; that he had "gone outside of his visitation schedule" without Karen's prior knowledge or consent; and that Joe had "failed to provide an accounting of the rental property income as ordered in the Temporary Order[.]"
Karen's contempt petition remains pending. The circuit court entered an order requiring Joe to appear and show cause at the second phase of the trial on April 22, 2015, and directed the parties to submit posttrial briefs. Although Joe's posttrial brief clearly identified the "contempt issue" as one that must still be resolved, it does not appear that the circuit court ultimately ruled on Karen's petition for contempt. The circuit court does not address the petition for contempt in the letter opinion entered on January 27, 2016, in the decree entered on July 22, 2016, from which this appeal is taken, or in any separate order.
Otherwise, the circuit court granted Karen a divorce "on the grounds of adultery, general indignities, and eighteen (18) months separation." Regarding the division of property, the decree incorporated a settlement agreement in which Joe and Karen agreed that Joe would retain Family Care Pharmacy and Action Medical and pay Karen for her share of those businesses. The court also ordered the sale of the parties' rental properties, as well as their marital home in Jonesboro, but made no ruling on the couple's commercial real estate business. Finally, the decree ordered the following regarding the assets in Joe and Karen's banking and investment accounts:
The funds in all remaining accounts which have not otherwise been addressed in this Divorce Decree shall be placed in a bank trust account which cannot be accessed without court order and which shall be frozen pending the sale of the parties' properties. Upon the sale of the rental properties, any outstanding mortgage debt shall be paid from the bank trust account. Any remaining funds will be distributed pending further orders of the court.
Joe now appeals the decree, raising three arguments for reversal. He first argues that the decree should be reversed because the circuit court made statements on the record that manifested a bias against him. He also asserts that the circuit court based its rulings on custody, child support, and spousal support on facts outside the record and on factual findings that were otherwise clearly erroneous. Joe further contends that the decree should be reversed because the circuit court failed to divide the assets of KDR Marketing-a business that the couple established during their marriage-and failed to otherwise consider Karen's alleged dissipation of the assets of the business during the pendency of the divorce. Karen cross-appeals, arguing that the decree should be reversed because it fails to make any division of the parties' commercial real estate business, Panther Trading Company. We dismiss the appeal and the cross-appeal for lack of a final order because the decree contemplates further judicial action regarding the division of marital assets, and Karen's motion for contempt remains pending.
Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure-Civil provides that an appeal may be taken from a final judgment or decree that is entered by a circuit court. The finality of a circuit court's judgment or decree is a jurisdictional requirement, and its purpose is to avoid piecemeal litigation. See Davis v. Davis , 2016 Ark. 64, at 5, 487 S.W.3d 803, 807. "For a [decree] to be final and appealable, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy." Id. It must also "put the court's directive into execution, ending the litigation or a separable part of it." Id. , at 5-6, 487 S.W.3d at 807. A decree that contemplates further judicial action is not final. See Moore v. Moore , 2016 Ark. 105, at 3, 486 S.W.3d 766, 770.
The decree in this case is not final because it contemplates further judicial action regarding the division of assets remaining in the couple's banking and investment accounts. In its letter opinion, the circuit court orders the cash balances in the couple's accounts transferred into a bank trust account, and after sale of the rental properties, "any mortgage debt outstanding should be paid from these joint accounts." The letter opinion further explains that it will consider proposed offsets before dividing the remaining funds, stating as follows:
After all mortgage indebtedness on rental properties are paid these funds will be released subject to the setoffs discussed below. During the trial numerous claims were made for offsets due to improper spending of marital accounts. Counsel for each side should immediately send the Court his proposed findings of fact and proposed language to be included in the decree regarding these offsets. The Court, after reviewing such may select one to be included in the final decree with or without modifications. After proper offsets, the funds will be released.
The decree, however, still reserves the division of the money in the bank trust account, as well as any offsets for alleged improper spending for a later date; providing that funds remaining after payment of the mortgage debt will be distributed "per further orders of this Court." Therefore, because the decree contemplates further judicial action and there is no certificate complying with Ark. R. Civ. P. 54(b) (2018), we must dismiss the appeal and cross-appeal without prejudice for lack of a final order.
Additionally, because "[c]ontempt is not merely a collateral issue, like attorney's fees," Anderson-Tully Co. v. Vaden, et al. , 2018 Ark. App. 484, at 4, 562 S.W.3d 249, a circuit court's order is not final and appealable when a contempt issue remains pending. Id. The circuit court did not rule on the petition for contempt that Karen filed shortly before the second phase of the trial in April 2015, and Karen did not abandon any pending claim in her notice of cross-appeal under Rule 3(e)(vi) of the Arkansas Rules of Appellate Procedure-Civil. Therefore, because Karen's contempt petition remains pending and the decree contemplates further judicial action regarding the division of the couple's marital assets, we dismiss the appeal and cross-appeal without prejudice. We urge the parties to ensure, in the event of a future appeal, that these issues-and any others that may remain pending- are resolved by written order.
Dismissed without prejudice.
Gladwin and Glover, JJ., agree.
Joe also filed a petition for contempt on April 2, 2015. While there was no ruling on the petition below, Joe abandoned "any pending but unresolved claim," including his motion for contempt, in his notice of appeal under Rule 3(e)(vi) of the Arkansas Rules of Appellate Procedure-Civil. Because that abandonment operates as a dismissal of Joe's contempt petition with prejudice, see id. , we do not discuss it here. | [
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BRANDON J. HARRISON, Judge
Chad Graham was accused of engaging in sexual intercourse and deviant sexual activity with his teenage daughter, D.C., on multiple occasions in his Elkins, Arkansas, home and in his Fayetteville, Arkansas, barbershop. A circuit court, sitting as the trier of fact, convicted Graham of committing two counts of rape and sentenced him to two concurrent twenty-year terms of imprisonment in the Arkansas Department of Correction.
On appeal Graham does not challenge the sufficiency of the evidence that the State presented or the circuit court's finding of guilt. Instead, he argues that the court abused its discretion when it admitted a photograph. The photograph depicted a screenshot; and the screenshot was of text messages that were stored on a separate cellular phone from which the screenshot had been taken. Graham complains that the cellular phone belonging to D.C., the victim, was in the State's constructive possession and that the State's failure to produce D.C.'s cell phone violated his constitutional rights under the Fifth and Fourteenth Amendments as applied by the United States Supreme Court in Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and related cases. He also claims that the circuit court should not have referred to his daughter, D.C., as a "victim" during the bench trial and that the circuit judge should have recused from the case. We affirm the circuit court's judgment.
I.
Graham primarily challenges the court's decision to admit as evidence State's exhibit no. 1, which is an 8 x 11 inch piece of paper. Printed on that paper is what appears to be a cellular phone's screen that displayed a text message. At the top of the phone's screen (the one whose screen is being photographed by a separate cell phone) appears "Dad 4798718639." A third of the way down the screenshot appears "Tue, 2016/07/26." On the left side of the screenshot are lines that look like cracks across a cell phone's physical screen or cover. Below the date appear four text bubbles in alternating colors of yellow and blue:
• "Want to make some money 2:59 AM" (yellow)
• "How 3:00 AM" (blue)
• "Let me inspect 3:01 AM" (yellow)
• "No 3:02 AM" (blue)
Graham argues that the exhibit was inadmissible for several reasons and that he was "profoundly prejudiced" by its admission during the trial.
Challenges to the admissibility of evidence are left to the sound discretion of the circuit courts, and we will not reverse a circuit court's ruling on admissibility unless there has been an abuse of discretion and a showing of prejudice. Gulley v. State , 2012 Ark. 368, at 10, 423 S.W.3d 569, 576-77 (citing Davis v. State , 350 Ark. 22, 86 S.W.3d 872 (2002) ). The abuse-of-discretion standard "is a high threshold that does not simply require error in the trial court's decision, but requires that the trial court act improvidently, thoughtlessly, or without due consideration." Grant v. State , 357 Ark. 91, 93, 161 S.W.3d 785, 786 (2004).
Having considered the record, the parties' arguments, and the law, we hold that any error in the circuit court's admission of State's exhibit no. 1 did not prejudice Graham. See Pigg v. State , 2014 Ark. 433, 444 S.W.3d 863 (evidence of guilt was such that no need to decide evidentiary issue raised). In other words, we see no reasonable probability of a more favorable verdict for Graham had the circuit court decided to exclude the challenged exhibit. Sparkman v. State , 91 Ark. App. 138, 148, 208 S.W.3d 822, 829 (2005). That is not to say that we do not appreciate the importance of Graham's arguments in this digital world that we now all inhabit. How courts deal with the admissibility of electronic-based communications and digitally generated and stored information is a grave and potentially outcome-determinative matter.
Here, the exhibit was admitted over Graham's objections during the testimony of Amber Dunn, D.C.'s mother. Dunn testified that she read text messages on D.C.'s old phone, which prompted her to call her daughter (who was then at her father's residence) and ask her about the so-called inspection text, which ultimately resulted in D.C.'s telling her mother that her father "had been touching her." D.C. testified during the bench trial and said that she had received text messages from her father and that the phrase "let me inspect" meant that he wanted to have sex with her. She further testified that although she said no, Graham came to her room and had sex with her immediately after sending the text messages depicted in exhibit no. 1. D.C. also said that an inspection meant that Graham would clean her vagina with a rag and that he used the word "inspect" often when referring to that activity. So "inspection," according to D.C., was code for sexual grooming and sexual activity. D.C.'s trial testimony detailed many other "inspections" and incidents of rape at various locations that occurred while living with her father in northwest Arkansas. We therefore conclude that any error in admitting the exhibit containing the text messages was harmless given that D.C.'s testimony touched directly on the same topic as the one depicted in the photographed text messages. See Wright v. State , 368 Ark. 629, 249 S.W.3d 133 (2007) (evidentiary error is harmless if the same or similar evidence is otherwise introduced).
II.
Graham also challenges the State's failure to produce D.C.'s cell phone during discovery. Here are the contextual details.
On 19 March 2018, Graham filed a motion in limine and a supporting brief. The copy of this document that is in the record is redacted and difficult to decipher in places because it does not identify specific people. For example, one sentence states, "Therefore, ___ phone has been through the hands of _____ between July 26, 2016 and November 26, 2016." In his motion, Graham complained that the important text-message exchange was reportedly produced to investigating officers on 26 November 2016. Graham wanted to examine D.C.'s cell phone. The cell phone had not been produced to defense counsel nor was any information provided by the prosecuting attorney to defense counsel regarding the make or model of the phone or the phone number assigned to it. The text messages that D.C. reportedly received on her cell phone-and were allegedly sent to her by Graham-were referenced in the (1) police report, (2) the child-safety interview, and (3) the affidavit supporting Graham's arrest warrant. Graham asked the circuit court to exclude any evidence of the text messages because the phone itself had not been produced.
On 31 March 2017, Graham filed a discovery motion and asked the State to permit an "inspection, testing, copying and photocopying of any relevant material" connected to any specific statements from him and to police reports or other evidence, including photographic evidence, that the State intended to use against him at trial.
Almost one year later, on the day of trial, Graham argued to the circuit court, "I don't know what happened to the cell phone. I think that if they [the State] are going to use evidence that was produced on a cell phone, that we had a right to examine that cell phone and as far as I know it was never collected or seen or viewed by law enforcement officers." He asked the court to exclude all evidence obtained from D.C.'s cell phone as a result, including the screenshot that was used as State's exhibit no. 1. The court denied his motion.
There were contradictory accounts of who took the screenshot of the text messages. For example, during cross-examination D.C. testified that a police officer handled her cell phone and took a picture of her phone "from his phone." She also said that she had left an old cell phone in Oklahoma with her sister on a previous visit, that her mom had read the texts on her old phone, and that her mom brought D.C.'s old cell phone from Oklahoma to Elkins and handed D.C.'s phone to a police officer.
On redirect, D.C. said that she had "like three" cell phones when she was living with her father and that she had given her sister her (D.C.'s) old cell phone. D.C. equivocated when asked whether she was sure that her mother, Amber Dunn, had D.C.'s cell phone with her when she took D.C. to the Elkins Police Department. "I could have swore I remembered it being there, but it might not have been."
Dunn said that she (Dunn) took the picture of D.C.'s phone in Oklahoma while D.C.'s phone screen displayed the disputed text messages. Dunn also said that she had left D.C.'s phone in Oklahoma after she had taken the screenshot of the texts and did not take D.C.'s phone to Arkansas. D.C.'s cell phone therefore stayed in Shawnee, Oklahoma, according to Dunn's testimony. Dunn said that she had instead simply kept her own cell phone, which had stored in it an electronic image of some text messages that had been received by D.C.'s cell phone.
The investigating officer testified, but he did not mention D.C.'s cell phone. He said that based on information provided by the Elkins Police Department, he had sent a case file to the prosecutor's office to request additional charges.
At the end of the State's case-in-chief, Graham moved to dismiss the rape charges based on Brady , supra , and Arizona v. Youngblood , 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), arguing that the State failed to preserve the cell phone as potentially exculpatory evidence. Graham recounted D.C.'s testimony that the phone was photographed by an Elkins police officer and that Dunn had taken D.C.'s phone to the police department. Graham's main argument to the circuit court was:
However you slice it, the defense was 100 percent deprived of any opportunity to look at that phone, analyze that phone, get any new information from it. It had been through a number of hands in between [D.C.'s] and Elkins PD or Ms. Dunn, and the fact that the Defense has been unable to do additional research regarding that phone and find exculpatory evidence on it violates [ Brady and Youngblood ].
....
At this point and throughout this proceeding, no one has known where this phone is. No one has even testified or knows who the provider to that phone is. And the Defense has had zero opportunity to do anything to assist itself in its defense against that screenshot of a text message[.]
The court denied Graham's motion to dismiss. It ruled that the State "was never in control of the phone to produce the phone under Brady to show inculpatory or exculpatory evidence." In doing so, the court credited Dunn's testimony.
Here, Graham argues that the court's denial of his motion to dismiss based on discovery violations was reversible error because the cell phone was "available" to the State but not the defense before the trial. (No chain-of-custody argument is at issue.) In his view, a constitutionally significant discovery violation occurred because the State "constructively possessed" D.C.'s cell phone.
The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires the prosecution to disclose evidence that is "material" to the guilt or punishment of the accused. Brady , 373 U.S. at 87, 83 S.Ct. 1194. In addition to the State's duty to disclose material favorable to the defendant, the Due Process Clause also imposes a limited duty on the State to preserve evidence. See Youngblood , 488 U.S. 51, 109 S.Ct. 333. The prosecutor in every case must therefore make an objective, threshold decision about whether the State must provide evidence to the defense; and an individual prosecutor has the affirmative duty to learn about the existence of any potentially exculpatory or impeachment evidence known to governmental actors, including the police. Newman v. State , 2009 Ark. 539, 354 S.W.3d 61 (citing Strickler v. Greene , 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) ).
To establish a Brady violation, Graham must satisfy three elements: (1) the evidence at issue must be favorable to him, either because it is exculpatory or because it can be used to impeach a witness; (2) the evidence must have been suppressed by the State (willfully or even inadvertently); (3) and some prejudice must have ensued. Henington v. State , 2018 Ark. 279, at 3, 556 S.W.3d 518, 522. The question is not whether Graham would more likely than not have received a different verdict with the sought-after evidence in hand. The question is whether, in its absence, he received a fair trial. A fair trial in this context means one that resulted in a verdict worthy of confidence. Kyles v. Whitley , 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). The Arkansas Supreme Court has recently stated that the standard of review on direct appeal for an alleged Brady violation is an abuse of discretion. Duck v. State , 2018 Ark. 267, at 7, 555 S.W.3d 872, 876.
Though Graham's concern and arguments give us pause, we nonetheless hold that he has failed to meet the Brady or Youngblood standards; therefore, the circuit court did not abuse its discretion when it denied him relief. We cannot say that the circuit court's finding that D.C.'s phone was not possessed by the State was legally wrong. Conflicting evidence was presented to the court regarding the location and whereabouts of D.C.'s phone (and which one of the potentially three phones that she may have possessed at one time or another). The circuit court credited Dunn's account that D.C.'s cell phone was never handed to a police officer and that the phone remained in Oklahoma after D.C. had given it to her sister. And even if a police officer had photographed the text messages on D.C.'s cell phone, which she at one point described during her testimony, there was no evidence that the failure of the police to collect and store the cell phone was done in bad faith. Youngblood , 488 U.S. at 58, 109 S.Ct. 333 ("[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law."). Further, D.C.'s testimony, when fully considered, separately and amply enough covered the same topic that the admitted photograph (exhibit no. 1) depicted. For these reasons, we find no reversible error regarding Graham's Brady challenge.
III.
As another matter, Graham argues that the circuit court erred when it referred to D.C. as a victim during the bench trial. In a motion in limine filed before the trial, which the circuit court denied, Graham asked the court to refrain from calling D.C. a victim "during the trial" because it "would improperly signal to the jury that the prosecutor and/or State witnesses holds a personal belief in the credibility of her claims." (Emphasis added.) First, there was no jury trial. Second, it suffices to say that the word "victim" was primarily used by the court during discussions about elements under the rape statute that the State charged Graham with violating. E.g. , Ark. Code Ann. § 5-14-103(a)(4)(A)(i) (Repl. 2013) ("[Victim] is a minor and the actor is the victim's ... [g]uardian"). In fact, Graham's counsel himself used the word "victim" in his motion to dismiss the rape charges. There was no reversible error.
Graham also contends that the circuit court's reference to D.C. as a victim required the judge to recuse herself, but he never moved for recusal. He is therefore barred from making this argument now. Dolphin v. Wilson , 328 Ark. 1, 942 S.W.2d 815 (1997) (holding that a party cannot raise a failure-to-recuse issue for the first time on appeal).
IV.
We affirm Graham's convictions and the related sentence.
Affirmed.
Abramson and Murphy, JJ., agree. | [
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ROBIN F. WYNNE, Associate Justice
Christine Hartman (now Smyth) appeals from the Franklin County Circuit Court's order denying her petition to terminate the guardianship of her two minor children, E.R. and D.R. She argues on appeal that the circuit court was clearly erroneous in applying the best-interest-of-the-child standard as opposed to determining the fitness of the natural mother; not finding her to be a fit parent; and failing to determine whether the guardianship's original function remained, as required by Arkansas Code Annotated section 28-65-401. Furthermore, appellant argues that even assuming arguendo that the correct standard was "best interest," the circuit court was clearly erroneous in finding that it would not be in the best interest of the minor children to be placed with their natural mother. We reverse and remand with instructions for the circuit court to enter an order terminating the guardianship.
The guardianship of E.R., born in 2003, and D.R., born in 2005, arose when appellees Marla and Franklin Reardon, the paternal grandparents, filed a petition for emergency and permanent guardianship in August 2013 after appellant's husband, Sam Hartman, was charged with the sexual abuse of E.R. The court entered an ex parte order for emergency temporary guardianship. Appellant filed a motion to dismiss the petition for guardianship and an alternative answer in which she denied the material allegations in the petition. Following a hearing, the court granted the Reardons a permanent guardianship, finding as follows:
That probable cause existed at the time of the entry of the Ex Parte Order for Emergency Custody and probable cause continues to exist. Specifically, the Court finds that Respondent Christine Hartman has subjected the minor child [E.R.] to Sam Hartman's family and homes of his family members in Logan County. The Court takes notice that Mr. Hartman is facing charges of Rape, a class Y felony for engaging in deviate sexual activity with the minor [E.R.] for a period of time from January 1, 2011 until May 6th, 2013, which was during the course of the marriage with Respondent and Mr. Hartman. Mr. Hartman is also facing charges of Tampering with Physical Evidence, Third Degree Assault on the Respondent, and Interfering with Emergency Communication 1st Degree.[ ] Additionally, the Court finds that Mr. Hartman's family has inappropriately tried to influence the minor child and the court has great concern over the minor children having contact with his family. The minor child testified in court that the situation was troubling her and she felt more safe at the Petitioner's residence.
The court further found that it was in the best interest of both children for the guardianship to be granted. No finding regarding the parental fitness of appellant was made. Appellant was awarded standard unsupervised visitation to take place at the home of her mother, Debra Smyth, with instructions that there was to be no contact between the children and Sam Hartman or his family.
On January 24, 2017, appellant filed a petition to terminate the guardianship. She alleged that since the guardianship order had been entered there had been "material changes in circumstances where it is currently now in the best interest of the minor children to be with their biological mother, [appellant]"; that she was fit and appropriate to care for her children; and that the circumstances had changed such that she had filed for divorce and her husband was currently in the Arkansas Department of Correction. A hearing was held on November 14, 2017. At the hearing, the parties agreed that there had been no finding of unfitness as to appellant in the permanent guardianship order. The court asked, "Is this agreed then that what we are going to be looking at is that Mom needs to set out why things are different than they were as stated in that 2013 order?" Appellant's counsel responded, "We intend to set that out. I believe that the court could also determine whether she is fit or unfit in this case, but we intend to present both."
At the conclusion of the evidence, the court ruled from the bench that the petition to terminate the guardianship would be denied. The court entered an order denying appellant's petition to terminate guardianship, adopting in full the statements of the Reardons' counsel in closing argument at the hearing (attached to the order as an exhibit and incorporated therein), and setting forth additional findings. The court found that "the original order dealt with Petitioner's failure in allowing Mr. Hartman's family to have access to her daughter, with the crux being that she had exhibited poor judgment and did not prioritize her children." The court found that "the Petitioner's lack of prioritizing these children and poor judgment was the reason for originally granting this guardianship and those reasons still exist." Specifically, the court faulted appellant for the length of time it took her to get divorced, which the court attributed to her continuing to choose her husband over her children until his appeals had been exhausted; the fact that she had recently moved into her mother's four-bedroom house, which raised "concerns regarding whether the Petitioner could herself, provide reasonable accommodations for these children"; her testimony regarding having had issues in the past concerning whether she believed E.R. and whether she had anger at E.R.; and for seeking out parenting education from someone certified in the age group of her youngest child, not the ages of E.R. and D.R. In addition, regarding the second prong of section 28-65-401(b)(3), the circuit court found that the children had flourished in their grandparents' care and that "it is not in the best interest of these children to change things mid-stream and return them to a situation that hurt them before." In its analysis of the best interest of the children the court cited Graham v. Matheny , 2009 Ark. 481, 346 S.W.3d 273, a guardianship case that has been overruled, and Bamburg v. Bamburg , 2014 Ark. App. 269, 435 S.W.3d 6, a custody-and-visitation case between ex-spouses. This appeal followed.
We review probate proceedings de novo, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. In re Guardianship of W.L. , 2015 Ark. 289, 467 S.W.3d 129. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. When reviewing the proceedings, we give due regard to the opportunity and superior position of the circuit court to determine the credibility of the witnesses. Id.
Arkansas Code Annotated section 28-65-401(b)(3) (Supp. 2017) provides that "[a] guardianship may be terminated by court order after such notice as the court may require ... [i]f, for any other reason, the guardianship is: (A) [n]o longer necessary; and (B) [n]o longer in the best interest of the ward." Here, the circuit court found that neither requirement of the statute had been met and that the guardianship should remain in place.
The circuit court did not make a finding of unfitness when it granted the permanent guardianship in 2013 or when it denied the petition to terminate the guardianship. The Reardons argue that the court made a "de facto" finding of unfitness in this case. Specifically, they point to the court's statements from the bench that, going back to the beginning of this case, appellant had shown "a complete disregard for parental responsibility." However, they cite no authority for such a finding and we decline their invitation to recognize a "de facto" finding of parental unfitness. In Guardianship of W.L. , 2015 Ark. 289, 467 S.W.3d 129, this court rejected the circuit court's reasoning that, while it had not expressly found the father to be unfit, such a finding had been made without the use of the word "unfit." This court held that the circuit court's finding of unfitness was clearly erroneous, concluding that "the circuit court could not retroactively declare [the father] unfit." In re Guardianship of W.L. , 2015 Ark. 289, at 11, 467 S.W.3d at 135. Then, in Donley v. Donley , 2016 Ark. 243, 493 S.W.3d 762, this court addressed a finding of unfitness of the natural mother in a temporary guardianship, which was superseded by the entry of an agreed permanent guardianship that did not contain a finding of unfitness. We held that the mother was a fit parent and that the circuit court had erred in failing to afford her the fit-parent presumption when she revoked her consent and sought to terminate the guardianship. Here, appellant has never been adjudicated an unfit parent. Therefore, in accordance with our reasoning in W.L. and Donley , appellant in the present case is a fit parent. As we have previously stated:
Parents have a fundamental right to raise their children. We will not lightly intrude on this fundamental right. We have already said that a guardianship is no longer necessary once a fit parent revokes an earlier-given consent. This is because a fit parent is presumed to be acting in the child's best interest. By petitioning to terminate the guardianship and revoking consent, the fit parent, who has the child's best interest at heart, informs the court that the guardianship is no longer necessary.
In re Guardianship of W.L. , 2015 Ark. 289, at 7-8, 467 S.W.3d at 133. We recognize that both W.L. and Donley were decided in the context of guardianships to which the parents had consented but later revoked their consent and petitioned for termination of the guardianships. However, a fit parent who did not consent to a guardianship must still be afforded a natural parent's constitutional right to raise his or her child without undue interference from the government as recognized by the Supreme Court of the United States in Troxel v. Granville , 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). "[S]o long as a parent adequately cares for his or her children (i.e. , is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." Troxel , 530 U.S. at 68-69, 120 S.Ct. 2054. Thus, parental fitness is at the heart of termination-of-guardianship cases involving parents of minor wards.
Turning now to the termination-of-guardianship statute, we hold that appellant was entitled to the fit-parent presumption that the guardianship was no longer necessary when she so informed the court in her petition to terminate the guardianship. Ark. Code Ann. § 28-65-401(b)(3)(A) ; see In re Guardianship of W.L. , 2015 Ark. 289, 467 S.W.3d 129. At that point, the Reardons had the opportunity to challenge appellant's fitness or to show exceptional circumstances that would overcome the fit-parent presumption. We note that it is clear from the record that the reasons for the guardianship-exposure to Sam Hartman's family members and E.R.'s feeling safer at the Reardons' home-no longer existed by the time of the termination hearing. Accordingly, we hold that the circuit court clearly erred in finding that the reason for originally granting this guardianship still existed.
Regarding the second prong of the statute, whether the guardianship is no longer in the best interest of the wards, see Ark. Code Ann. § 28-65-401(b)(3)(B), it appears that the circuit court focused on the success of the children in the guardians' care and found that "there is no reason to remove them from a stable situation mid-course and send them back to the unknown." However, the circuit court failed to accord appellant the presumption that a fit parent acts in her children's best interest. See Troxel , 530 U.S. at 68, 120 S.Ct. 2054 ("[T]here is a presumption that fit parents act in the best interests of their children."). Furthermore, nothing in this record rebuts that presumption. The evidence showed that appellant had stable employment, a suitable home, family support, and a close relationship with E.R. and D.R., who both wanted to live with her. Further, overnight visitation had been consistently exercised with no issues other than minor disciplinary disagreements with the Reardons regarding D.R. In short, the presumption that appellant has acted in her children's best interest was not rebutted on this record, and the circuit court clearly erred in finding that it remains in the children's best interest to leave the guardianship intact. Accordingly, we reverse and remand with instructions to the circuit court to enter an order terminating the Reardons' guardianship of E.R. and D.R.
Reversed and remanded with instructions.
Wood and Womack, JJ., dissent.
The Reardons' son and appellant were divorced, and appellant was the custodial parent. The Reardons' son consented to the guardianship.
According to the affidavit for Sam Hartman's arrest, police came into contact with him on May 6, 2013, when they responded to a domestic-disturbance call, and he agreed to be interviewed. He admitted having sexual contact with E.R. Sam Hartman was eventually convicted of raping E.R. and received a sentence of life imprisonment.
Appellant's divorce decree was entered on July 10, 2017.
In Act 717 of 2017, the General Assembly amended the termination-of-guardianship statute to make both prongs necessary by replacing the word "or" with "and." Act of Mar. 28, 2017, No. 717, 2017 Ark. Acts 3698. See In re Guardianship of W.L. , 2015 Ark. 289, at 8, 467 S.W.3d at 134 (under the prior version, "given that the legislature has created a disjunctive test, the parent can move to terminate under either prong"). | [
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BRANDON J. HARRISON, Judge
This workers'-compensation appeal asks us to decide whether substantial evidence supports the Arkansas Workers' Compensation Commission's decision that an Arkansas Highway and Transportation Department employee's weed eating activities did not equate to a rapid-repetitive movement as workers'-compensation law uses the term.
Dale Carlat is a fifty-four-year-old man who has worked for the highway department since 2002. In October 2014, he complained of a sharp pain in his shoulder but did not report it as a work-related injury until March 2015. In February 2015 a MRI showed several tears and degenerative changes in the right shoulder. Surgery was an option, Carlat chose it, and the surgery was completed in May 2015. Shoulder problems continued postsurgery. Medical records note that Carlat complained that his shoulder pain was related to using a weed eater. Carlat sought benefits related to the shoulder injury and the administrative law judge (ALJ) denied them. He appealed to the Commission, which also denied them, concluding that he did not prove a compensable gradual-onset injury to his right shoulder. The lapse in proof, said the Commission, was that Carlat did not show that the weed eating activity equated to a rapid or repetitive movement. Carlat takes issue with that decision.
Before the ALJ, Carlat testified that he was a maintenance aide III or lead-man position for the highway department. His duties included inspecting and maintaining equipment, driving his crew, supervising the work of his subordinates, and weed eating. Carlat testified that weed eating was a "second duty" to his other tasks and that it only occurred during mowing season, which ran from May through November. According to Carlat, during mowing season, he and a four-or five-member crew worked ten-hour days, four days a week. Carlat said he would go ahead of his crew to start weed eating around mailboxes, culverts, and cross drains. He was "in and out" of the truck all day. He would swing the weed eater back and forth; the crew would average eighteen miles a day.
Bradley English, a highway department employee, testified that he worked as a grade 5 single-axle truck driver running a "five-footer," or a hydraulic sickle, on the mowing crew. English said that Carlat was his supervisor in 2014 on the mowing crew and that Carlat, when weed eating, would get the weed eater out of the truck, run it around the signs, mailboxes, culverts, and cross drains, then put the weed eater back on the truck and move down the road about every ten yards. English testified that Carlat would do this about one hundred times a day on an average shift and possibly more. He said that cross drains would take about five minutes of continuous weed eating but that the length of time depended on the slope and density of the grass or other vegetation.
Barry Clark, an area maintenance supervisor for the highway department, said that Carlat's maintenance III position entailed being responsible for getting the crew out on the job, getting the equipment ready, overseeing the crew, and doing daily maintenance. During mowing season, additional responsibilities included setting out roadside warning signs, assisting the crew in any repairs, and "just kind of doing some weed eating." He said that the crew leader will drive the truck, get out, weed eat, and then get back in the truck and drive to the next point. According to Clark, a mowing crew would spend an average of eight hours mowing in a ten-hour day and averaged between five and fifteen miles a day. He testified that a crew leader spends anywhere from two to three hours between starting mowing in the morning and lunchtime running the weed eater. But the time varied based on how close together the signs are on the road, how many mailboxes there were, and whether the crew was working in a rural or urban area. He agreed that the process was "weedeating ... for only a few minutes and then you stop weedeating and come back to the truck."
The Commission rejected Carlat's claim for the following reasons:
In the present claim, the claimant contends that he sustained a gradual-onset shoulder injury as a result of weedeating. While, arguably, the task of weedeating is, to some degree, repetitive, the claimant failed to prove that his performing this task was repetitive as required by our statutory provisions for establishing a gradual-onset injury. More specifically, the claimant testified that during the mowing season (or, roughly from May to November) he was required to conduct various work-related duties in his position as Maintenance Aide III. These duties, as verified by Mr. Clark, included inspecting and maintaining equipment, driving ahead of his crew to place signs along the highway, supervising the work of his subordinates, and
weedeating. The claimant admitted that weedeating was secondary to his other activities. Moreover, the claimant testified that much of his time was spent getting in and out of his truck and driving as his crew moved forward.
Notwithstanding that Mr. English testified on the claimant's behalf that the claimant got in and out of his truck and weedeated approximately one hundred times per shift, English further testified that his primary duty was to operate a blade tractor. Based on English's description of his own work activities, he could not have constantly observed the claimant's work-related activities. Therefore, English's testimony concerning the number of times the claimant got in and out of his truck and weedeated per day is, at best, a guess, unverifiable by the factual evidence of record. Moreover, English admitted that he sometimes weedeated for as much as a week at a time during the time in question.
While arguably an integral part of the claimant's work-related activities at certain time of the year, the record demonstrates that weedeating was neither the claimant's sole or primary responsibility, nor was the claimant required to perform this activity on a constant basis. Therefore, the claimant has failed to prove that the claimant's own act of weedeating was repetitive for purposes of this claim.
This court views the evidence and all reasonable inferences deducible from it in the light most favorable to the Commission's findings and will affirm if those findings are supported by substantial evidence. Jeter v. B.R. McGinty Mech. , 62 Ark. App. 53, 55, 968 S.W.2d 645, 647 (1998). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The issue on appeal is not whether the court might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, the court must affirm its decision. Id. When a claim is denied, the substantial-evidence standard of review requires the court to affirm the Commission if its opinion displays a substantial basis for the denial of the relief sought. Id.
For an injury to be compensable under the gradual-onset, rapid-repetitive-motion law, a claimant must prove by a preponderance of the evidence that (1) the injury arose out of and in the course of his or her employment; (2) the injury caused internal or external physical harm to the body that required medical services or resulted in disability or death; (3) the injury was caused by rapid-repetitive motion; and (4) the injury was a major cause of the disability or need for treatment. Lay v. United Parcel Serv. , 58 Ark. App. 35, 40, 944 S.W.2d 867, 870 (1997) ; Ark. Code Ann. § 11-9-102(4)(A)(ii)(a) (Repl. 2012). An injury must be established by medical evidence supported by objective findings. Galloway , 2010 Ark. App. 610, at 6, 378 S.W.3d at 214.
An injury is caused by a rapid-repetitive motion when, as the term naturally suggests, the task or tasks performed are repetitive, and the repetitive motion is done rapidly. Id. The Arkansas Supreme Court has held that multiple tasks involving different movements can be considered together to satisfy the repetitive element of "rapid repetitive motion." See Hapney v. Rheem Mfg. Co. , 342 Ark. 11, 26 S.W.3d 777 (2000). As a threshold issue, the tasks must be repetitive, or the rapidity element is not reached. Galloway v. Tyson Foods, Inc. , 2010 Ark. App. 610, at 6, 378 S.W.3d 210, 214. This court has previously required some showing of how rapidly the repetitive actions were performed and observed that "in its ordinary usage, rapid means swift or quick." Rudick v. Unifirst Corp. , 60 Ark. App. 173, 962 S.W.2d 819 (1998) (internal citations omitted).
No case in Arkansas has yet decided whether weed eating is a repetitive movement. Most of the "repetitive" movement cases involved factory or assembly-line jobs. See, e.g. , Boyd v. Dana Corp. , 62 Ark. App. 78, 966 S.W.2d 946 (1998) (employee's job involved rapid-repetitive motion when the job involved motions that were repeated 115 to 120 times a day, separated by periods of only one and a half minutes). See also Moody v. Addison Shoe Co. , 104 Ark. App. 27, 29, 289 S.W.3d 115, 116 (2008) (factory worker making 1920 and 2160 individual shoes with gradual-onset shoulder injury was rapid-repetitive movement). Apart from factory workers, there are a few typical cases. Some involve walking. For example, there is Pearson v. Worksource , 2012 Ark. 406, 424 S.W.3d 311, in which our supreme court held that the Commission erred in concluding that an employee's blister injury to his big toe was non-compensable because his walking duties at work were not rapid-repetitive movements. In Pearson , the claimant was required to cover bundles of steel as quickly as possible, had to walk fast from one end of a field to the other, and the "only reasonable conclusion" was that the fast-paced repetitive walking caused a blister given the rapid motion of the claimant's ill-fitting boots rubbing against his toe. But see Jenkins v. It's Fashion , 2010 Ark. App. 746, 379 S.W.3d 630 (substantial evidence that employee's gradual-onset bilateral Achilles tendonitis had not been caused by rapid-repetitive motion as a manager of a retail clothing store, even though her physician testified that the employment was the major cause of claimant's condition and that the condition was the result of rapid-repetitive motion at work; testimony of another manager supported finding that claimant's use of ladder was infrequent and that use of ladder did not constitute rapid-repetitive motion).
This case is more like Lay v. UPS , in which we affirmed the Commission's denial of benefits because a delivery-truck driver, who briefly performed several different rapid motions, repeated at differing intervals and separated by periods of several minutes, did not engage in a rapid-repetitive motion. 58 Ark. App. 35, 944 S.W.2d 867 (1997). And consider Pulaski County Special School District v. Stewart , in which the activity of a school-bus driver opening and closing a difficult-to-operate door ten times in two hours was not a rapid-repetitive task. 2010 Ark. App. 487, at 2, 375 S.W.3d 758, 759. Finally, the supreme court has held that a custodian in a public school failed to establish a rapid-repetitive injury when she performed several different tasks each day. Malone v. Texarkana Pub. Sch. , 333 Ark. 343, 969 S.W.2d 644 (1998).
There is no doubt that Carlat had a physical job and that he worked hard at it. On the whole, however, given this record, we cannot say that the Commission's decision was insufficiently supported. We therefore affirm its decision.
Affirmed.
Klappenbach and Brown, JJ., agree. | [
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[ COUNSEL ]: That's right, Your Honor. There was a question as to the legal status of Mr. Brown under the review order filed September 21st, 2016, paragraph 9. It says based on the results of the DNA testing, D'Andre Brown shall be made a party to the case. DHS shall cause summons to be issued and served.
THE COURT : All right. The petition, which was filed later, names him as the legal father and rightly so. The Court did not specifically say I was making him legal father on September 21st, '16, but, in fact, that's what I was doing. And the resulting actions were because of that. So the record today should be clear. On September 21st, 2016, I made him the legal father, and I think we all understood that.
....
THE COURT : [Appellant], earlier, you made reference to a September 21st, 2016, order.
[ COUNSEL ]: Yes, Your Honor.
THE COURT : That was when we were talking about this legal status of Mr. Brown.
[ COUNSEL ]: Yes.
THE COURT : The Court finds that that's the day that the order was filed.
[ COUNSEL ]: Okay.
THE COURT : The hearing about which that file marked date refers, that review order, the hearing was April 29th, 2016. So it was on April 29th, 2016, that the Court changed Mr. Brown's legal-status to legal.
[ COUNSEL ]: Yes. I should have mentioned that the-
THE COURT : Okay. Thank you.
[ COUNSEL ]: -order seemed to be entered a few months-
THE COURT : Yes.
[ COUNSEL ]: -later.
THE COURT : Yes.
[DHS]: I'm sorry. Can I get the date that you-from the hearing?
THE COURT : April 29th, 2016. It was a review hearing. DNA results were offered to the Court at that time. Thank you. You may proceed.
Thereafter, the hearing proceeded.
At the termination hearing, Holly Johnson testified that she was the family-service worker assigned to the case. She explained that A.G. was removed due to Greenway's drug use and an inappropriate home. Appellant had been incarcerated at that time and was released in August 2016. Johnson testified that she went to the jail on December 12, 2015-even though she thought appellant was just listed as the putative father at that time-to go over the case plan. She explained the importance of maintaining contact with DHS, submitting to drug screens, allowing DHS into the home, and having appropriate housing and employment.
After his release, appellant completed a parenting workbook and watched "The Clock Is Ticking" video. However, Johnson expressed concerns regarding appellant's home. She explained that the home had broken windows, broken glass and a knife on the floor, and broken glass outside the home in the grass. Appellant had admitted to DHS that there were no utilities at the home on May 18, 2017. On May 26, 2017, Johnson testified that she had visited the home but appellant was not there. Someone from inside the home stated that he was "watching the home." Johnson testified that although she did not go inside the home without appellant's being there, she did not observe any lights on in the home. She further testified that she thought Greenway, an untreated drug user, was still living in the home with appellant after the trial court had terminated Greenway's parental rights and severed her relationship with A.G. Additionally, Johnson testified that appellant had failed to provide any proof of income or employment during the pendency of the case. Appellant had sporadic visitation with A.G. since his release, visiting her only four times. On one of those occasions, he was asked to leave after he became very aggressive with the staff.
Therefore, Johnson opined, there would be a risk of potential harm if A.G. was returned because of her concerns with the home and appellant's ability to support A.G. Johnson further opined that A.G. was adoptable and was doing well in her placement with her maternal grandfather and step-grandmother. Johnson testified that there were not any other services that could have been provided to appellant that would have increased the likelihood that the home would have been safe for A.G. She testified that DHS could not "make him provide ... proof of employment [or] make him keep an appropriate home."
Autumn Matthews, appellant's parole and probation officer, testified that appellant is on probation and parole for offenses involving controlled substances. Appellant received permission to move to Greene County to live with his girlfriend, Kelli Greenway. During her only home visit, Matthews observed broken glass by the front door and all over the floor inside the home. She testified that the home was not clean and had a strong foul odor. Kelli Greenway was at the home during her visit and told Matthews that she lived there with appellant. At some point, appellant admitted to Matthews that there was no electricity on at the home. Matthews described appellant's demeanor as extremely aggressive if he did not get his way and testified that, to her knowledge, he did not have a steady income.
Appellant testified. Appellant denied that Greenway was living with him at the time of the hearing but did admit that she was trying to get approval from her probation officer to do so. Later, on cross-examination, appellant testified that Greenway did live with him for approximately a week. Although appellant admitted that Greenway was his girlfriend, he testified that it was his intention to marry her. Appellant further testified that he was "disregarding [the] Court's [previous] finding that Kelli Greenway poses a risk and threat of harm to [A.G.]."
Appellant explained that the broken glass and trash observed by Johnson and Matthews had been cleaned up with Greenway's assistance, although his window is still broken as the result of someone breaking into his home. Appellant's landlord was supposed to fix the window. Appellant admitted that his electricity had been turned off at his home because he was unable to pay the bill; however, appellant testified that the electricity had been turned back on by the time of the termination hearing. Appellant additionally testified that he was working for his landlord doing maintenance work, earning approximately $60 per day five days a week. He stated that he felt DHS had not assisted him to achieve reunification with his child.
Earnest Friend testified that appellant had been doing maintenance work with him during the last five or six months for approximately sixty-five rental properties. Friend testified that appellant was paid ten dollars an hour and was paid by Reuben Watkins's estate for his work.
After the hearing, the trial court terminated appellant's parental rights. In the termination order, the trial court found by clear and convincing evidence that it was in A.G.'s best interest to terminate appellant's parental rights. It stated that it considered the likelihood that A.G. would be adopted and the potential harm to the health and safety of A.G. by returning her to appellant. Additionally, the trial court made the following pertinent findings:
2. The Court has considered and reviewed all the evidence submitted and the testimony of the witnesses in this matter, and finds that the Arkansas Department of Human Services has proven by clear and convincing evidence that:
a. The father has abandoned the child. A.C.A. § 9-27-341(b)(3)(B)(iv).
b. Other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the child in the custody of the father is contrary to the child's health, safety and welfare and despite the offer of appropriate family services, the father has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the father's circumstances which prevent the placement of the child in the custody of the parents. A.C.A. § 9-27-341(b)(3)(B)(vii)(a) .
c. D'Andre Brown is found by this Court to have subjected the juvenile to aggravated circumstances in that the child has been abandoned and that there is little likelihood that further services to the family will result in successful reunification. The Court finds that no additional services to the father will promote reunification.
Specifically, the Court finds that D'Andre Brown has had no meaningful contact with the child. The Court finds that D'Andre Brown has not provided proof of stable and safe housing. The Court finds that the father's house is not safe for the child because Kelli Greenway, whose parental rights regarding this child have been terminated and whom D'Andre Brown intends to marry, is regularly in the home, and dangerous items, including but not limited to broken glass, are on the floor of the home. The Court finds D'Andre Brown does not have sufficient income, nor has he provided proof of stable income or employment. The Court finds that D'Andre Brown is not credible regarding: Kelli Greenway in living in the home, his income and employment, and his housing. The Court finds that the child cannot be safely placed with D'Andre Brown today. The Court finds that there is little likelihood that reunification services would result in successful reunification, and there are no services known to the Court that would result in successful reunification.
This appeal followed.
II. Standard of Review
A trial court's order terminating parental rights must be based on findings proven by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2017). Clear and convincing evidence is defined as that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Posey v. Ark. Dep't of Health & Human Servs. , 370 Ark. 500, 262 S.W.3d 159 (2007). On appeal, the appellate court reviews termination-of-parental-rights cases de novo but will not reverse the trial court's ruling unless its findings are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, an appellate court gives due deference to the opportunity of the trial court to judge the credibility of witnesses. Id.
In order to terminate parental rights, a trial court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted; and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii). The order terminating parental rights must also be based on a showing of clear and convincing evidence as to one or more of the grounds for termination listed in section 9-27-341(b)(3)(B). However, only one ground must be proved to support termination. Reid v. Ark. Dep't of Human Servs. , 2011 Ark. 187, 380 S.W.3d 918.
III. Parental Status
Appellant first argues that the trial court erred in terminating his parental rights because he had not specifically been found to be A.G.'s biological parent before the termination hearing, citing Earls v. Arkansas Department of Human Services , 2017 Ark. 171, 518 S.W.3d 81, as support. We disagree because appellant consented to and acquiesced in the trial court's finding that his parental status had been established.
Appellant was initially identified as a putative parent and ordered to establish paternity and submit to DNA testing. In the September 21, 2016 order, the trial court treated appellant as the "legal father" after DNA testing had confirmed that he is the biological father. While appellant essentially argues that the September 21, 2016 order was not clear enough on this issue, at the commencement of the termination hearing, the trial court specifically covered this issue with the attorneys, including the attorney for the appellant.
As set forth above in the quoted colloquy, appellant clearly participated in the colloquy with the trial court and thereafter, consented to or acquiesced with, the following findings, inter alia , by the trial court:
The Court did not specifically say I was making him legal father on September 21st, '16, but, in fact, that's what I was doing. And the resulting actions were because of that. So the record today should be clear. On September 21st, 2016, I made him the legal father, and I think we all understood that.
(Emphasis added.) Appellant had the opportunity to object to the trial court's finding; however, he did not. At the conclusion of the colloquy, the parties immediately began introducing evidence on the issue of termination.
Our supreme court has made it clear that "an appellant may not complain of an action of the trial court which he induced, consented to, or acquiesced." Ponder v. Ark. Dep't of Human Servs. , 2016 Ark. 261, at 5, 494 S.W.3d 426, 429 (quoting Childers v. H. Louis Payne, D.C. , 369 Ark. 201, 205, 252 S.W.3d 129, 132 (2007) ); see also R&L Carriers Shared Servs., LLC v. Markley , 2017 Ark. App. 240, 520 S.W.3d 268 ; Whitt v. Ark. Dep't of Human Servs. , 2015 Ark. App. 293, 461 S.W.3d 386 ; Gilliam v. Gilliam , 2010 Ark. App. 137, 374 S.W.3d 108. Despite appellant's contention otherwise on appeal, appellant clearly consented to or acquiesced in the trial court's finding that his parental status had been determined in the trial court's prior review order. For this reason, we hold that the trial court's decision was not clearly erroneous.
IV. Statutory Grounds
Appellant next argues that the trial court erred in terminating his parental rights because there was insufficient evidence to support the grounds asserted in the petition to terminate parental rights. We disagree.
The trial court granted the termination petition based on three grounds: (1) the abandonment ground under Arkansas Code Annotated section 9-27-341(b)(3)(B)(iv) ; (2) the subsequent-factors ground under Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) ; and (3) the aggravated-circumstances ground under Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a) . Arkansas Code Annotated section 9-27-341(b)(3)(B) defines these grounds as follows:
(iv) A parent has abandoned the juvenile;
....
(vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent the placement of the juvenile in the custody of the parent.
....
(ix)(a) The parent is found by a court of competent jurisdiction, including the circuit court juvenile division, to:
....
(3)(A) Have subjected any juvenile to aggravated circumstances.
(B) "Aggravated circumstances" means:
(i) A juvenile has been abandoned, chronically abused, subjected to extreme or repeated cruelty, sexually abused, or a determination has been or is made by a judge that there is little likelihood that services to the family will result in successful reunification[.]
In this case, DHS sufficiently proved the subsequent-factors ground. A parent's failure to comply with court orders can serve as a subsequent factor upon which termination can be based. Miller v. Ark. Dep't of Human Servs. , 2017 Ark. App. 396, 525 S.W.3d 48 ; Clements v. Ark. Dep't of Human Servs. , 2013 Ark. App. 493, 2013 WL 5273040. Here, appellant was ordered by the trial court at the adjudication hearing, which he attended, to cooperate with DHS, comply with the case plan, and obey all orders; keep at least weekly contact with the caseworker, keep DHS informed of current address, and notify DHS of any changes in address, contact information, marital status or employment status; view "The Clock is Ticking" video; obtain and maintain stable housing with the utilities turned on; allow DHS access into the home; obtain and maintain stable employment or income sufficient to support the family; and remain drug free and submit to random drug screens. However, according to Johnson, appellant failed to provide any proof of his employment or income. Additionally, Johnson testified that there were concerns with the appropriateness of appellant's home and concerns with appellant's intention to marry and live with Kelli Greenway, whose parental rights had already been terminated because she posed a risk of harm to A.G. Although appellant testified at the hearing, the trial court found his self-serving testimony not credible, which is within its province to do.
Appellant lastly argues that DHS failed to provide him appropriate family services to address any subsequent issues. As the attorney ad litem correctly notes, Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) requires DHS to only "offer ... appropriate family services." (Emphasis added.) Appellant argues that he preserved his argument regarding the services offered by DHS on appeal because he testified at the hearing that he felt that the caseworker "was not working with me whatsoever. I even went in there multiple times and asked for a different caseworker[,]" but was told that "I had [to] bring that up in front of the Judge and with the lawyer." See Martin v. Ark. Dep't of Human Servs. , 2017 Ark. 115, 515 S.W.3d 599 ; Threadgill v. Ark. Dep't of Human Servs. , 2017 Ark. App. 426, 526 S.W.3d 891.
In Jackson v. Arkansas Department of Human Services , 2013 Ark. App. 411, 429 S.W.3d 276, we reversed and remanded a trial court's termination of parental rights when DHS failed to show that it had taken any steps to (1) contact the parent after his appearance in the case, (2) determine the parent's suitability as a caregiver, or (3) provide services to him. Although appellant testified that his caseworker did not assist him in achieving reunification, Johnson testified otherwise. Johnson testified that she explained to appellant the importance of maintaining contact with DHS, submitting to drug screens, allowing DHS into the home, and having appropriate housing and employment. Furthermore, appellant completed a parenting workbook and watched "The Clock Is Ticking" video. Johnson testified that there were not any other services that could have been provided to appellant, stating that DHS could not "make him provide ... proof of employment [or] make him keep an appropriate home." Based on this evidence, we hold that the trial court did not clearly err in finding that DHS provided appropriate family services to appellant sufficient to support the subsequent-factors ground. Because only one ground is necessary to terminate appellant's parental rights, it is unnecessary for us to address appellant's arguments regarding the other statutory grounds found by the trial court. Accordingly, we affirm.
Affirmed.
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SHAWN A. WOMACK, Associate Justice
On December 10, 2015, the bodies of Cherrish Allbright and her unborn child were found buried in an unmarked grave. Cherrish had an arrow through her back and she had suffered two, severe, blunt-force impacts to the back of her head, which caused her death. Brad Hunter Smith was arrested and charged with her murder. Following a jury trial in Cleveland County, he was convicted of capital murder and sentenced to death. On appeal, he only raises issues regarding the punishment phase of his trial. We affirm the conviction and sentence.
Smith does not challenge the sufficiency of the evidence on appeal, so only a brief recitation of the facts is required. Lee v. State , 327 Ark. 692, 696, 942 S.W.2d 231, 233 (1997). In November 2015, Allbright disclosed to Smith that she was pregnant with his child. Throughout the following weeks he made numerous comments to friends, family, and coworkers that he needed help committing a murder. Ultimately, on December 3, 2015, Smith enlisted the help of his two friends, Jonathan Guenther and Joshua Brown, to kill Allbright and hide her body. According to the plan, Brown would call Allbright under the pretenses of wanting to smoke marijuana and then drive her to a nearby field where Guenther and Smith would be lying in wait.
When Brown arrived at the field with Allbright, Guenther and Smith were hiding behind some trees. When Allbright exited and walked to the front of the vehicle, Smith stood up and shot her through the back with a crossbow bolt. She attempted to get back into the vehicle, but Smith ordered her to get down on the ground on her knees. He then used a wooden baseball bat to hit her twice in the back of the head, killing her. The trio then loaded the body onto the back of a trailer, transported it to a gravesite behind Smith's house, and buried her.
On December 10th, officers from the Cleveland County Sherriff's Department brought Brown in for questioning on an unrelated matter and, upon encouragement from his mother, he confessed to the murder and led officers to the grave. Based on the information Brown provided, officers from the Arkansas Game and Fish Commission were ultimately able to arrest Smith at his family's cabin on Belcoe Lake.
Smith was charged with kidnapping, abuse of a corpse, and capital murder. The jury convicted him on all charges and he was sentenced to twenty years, ten years, and death respectively. He only challenges his sentence for capital murder on appeal.
I. Prohibition of Aggravating Circumstances
For his first point, Smith argues that prejudicial error occurred when the circuit court permitted the jury to consider the death of Allbright's unborn child as an aggravating circumstance. Arkansas Code Annotated section 5-4-604 sets forth the aggravating circumstances that the jury may consider for the imposition of the death penalty. Bowen v. State , 322 Ark. 483, 496, 911 S.W.2d 555, 561 (1995). The specific provision in question states that it is an aggravator if "[t]he person in the commission of the capital murder knowingly created a great risk of death to a person other than the victim or caused the death of more than one (1) person in the same criminal episode." Ark. Code Ann. § 5-4-604(4) (2013). Arkansas Code Annotated section 5-1-102(13)(B)(i)(a) contains the definition of "person" as it relates to the homicide statutes and states, "As used in §§ 5-10-101 -- 5-10-105, 'person' also includes an unborn child in utero at any stage of development." Smith argues that the circuit court should have granted his motion prohibiting the aggravating circumstance from being presented because the definition of person in section 5-1-102 could not apply to section 5-4-604.
The State in turn argues that this issue is not preserved for appeal because it was abandoned below. At trial, Smith filed a motion to prohibit the State from submitting an aggravating circumstances form to the jury. Attached to the motion was the form the State intended to submit to the jury, which included the definition of person in Ark. Code Ann. § 5-1-102(13). However, at a hearing outside the presence of the jury, the court inquired whether Smith objected to the definition or its placement on the form. Smith responded that he was objecting to the placement. In his reply brief, Smith acknowledges that his argument was abandoned, but nevertheless contends that he may raise it on appeal based on our decision in Singleton v. State , 274 Ark. 126, 623 S.W.2d 180 (1981).
The general rule is that this court will not address errors raised for the first time on appeal. Id. at 129, 623 S.W.2d at 181 ; Hicks v. State , 2017 Ark. 262 at 10, 526 S.W.3d 831, 838. Likewise, parties cannot change their grounds for an objection on appeal, but are bound by the scope and nature of their objections as presented at trial. Hicks , 2017 Ark. 262 at 10, 526 S.W.3d at 838. However, in death-penalty cases we will consider errors argued for the first time on direct appeal when prejudice is conclusively shown by the record and this court would unquestionably require the trial court to grant relief under Rule 37 of the Arkansas Rules of Criminal Procedure. Singleton , 274 Ark. at 128, 623 S.W.2d at 181 ; Hill v. State , 275 Ark. 71, 77, 628 S.W.2d 284, 287 (1982) ; Hughes v. State , 295 Ark. 121, 122, 746 S.W.2d 557, 557 (1988).
In Singleton the defendant was sentenced to death for felony murder and life imprisonment for aggravated robbery. 274 Ark. at 128, 623 S.W.2d at 181. We affirmed the conviction for capital felony murder but set aside the conviction for the lesser included offense of aggravated robbery. Id. We noted that our recent decision in Swaite v. State , 272 Ark. 128, 612 S.W.2d 307 (1981), prohibited the entry of a judgment for capital felony murder and the underlying specific felony. Id. We therefore applied our holding to Singleton's case by invoking the death penalty exception. Id.
We decline to extend the exception to the circumstances argued here. Smith has not conclusively shown prejudice and he has failed to show that we would unquestionably grant him Rule 37 relief on the issue. We note that enforcing a narrow interpretation of the death penalty exception ensures that it remains an exception and does not swallow the rule.
II. Improper Rebuttal Testimony
For his second point, Smith argues that the circuit court erred when it improperly permitted the prosecution to present rebuttal testimony. During the penalty phase of the trial, Smith presented testimony from Randall Jones, who worked for the Dallas County Detention Center. He testified that while Smith was awaiting trial, he was a model prisoner and never showed any signs of aggression or violence. After Smith rested, the State argued that it was entitled to present a rebuttal witness, Coby Rauls. Rauls testified that he was a deputy sheriff with Cleveland County and that he had transported Smith from one of his court appointments back to the detention center. During the transportation, Rauls recounted that Smith stated he would like to use the officer's night stick to beat the driver of the vehicle in front of him for excitement. Before Rauls testified, Smith's attorney argued that it wasn't rebuttal because the officer wasn't at the detention center to witness Smith's behavior. The court allowed the rebuttal noting that it related to Smith's behavior while he was still a prisoner.
Smith argues that the evidence was improper because Rauls's testimony was not in response to Jones's. The State in turn argues that this argument was not presented to the circuit court. See Hicks , 2017 Ark. 262 at 10, 526 S.W.3d at 838. In his reply, Smith admits that he did not present this specific argument to the circuit court below. However, even if we address his argument, it is meritless.
The decision to admit rebuttal testimony is at the circuit court's discretion and we will not reverse unless the circuit court abused that discretion. Gilliland v. State , 2010 Ark. 135 at 11, 361 S.W.3d 279, 285. Here, Jones testified that Smith was a model prisoner. The State's rebuttal witness countered that assertion by Smith's comment in the squad car. Smith can't show that the circuit court abused its discretion by allowing Rauls to testify.
III. Scope of Rebuttal Closing Argument
Next, Smith argues that the court impermissibly allowed the State to go beyond the scope of the penalty-phase rebuttal closing argument and allowed the State to make emotionally charged comments. During the defense's closing, Smith's attorney stated, "[I]t doesn't matter if you give him life without parole or if you give him the death penalty. The only way my client will come out of that penitentiary is on a funeral home director's gurney." Once the State began its reply, Smith objected and argued that the State could not rehash its arguments and could only respond to the points he raised in his closing argument. The court ruled that the State could address Smith's argument that there was no difference between sentencing him to life or death and that the State would have the opportunity to discuss the sentencing forms. However, the court clarified that while it would allow the State to discuss the aggravating circumstances pertaining to their choice to pursue the death penalty, it would be limited in how much it could discuss. The State then addressed the jury as follows:
When we started this journey on Monday, counsel for the defendant said the State does not seek the death penalty very often. That is correct. The State seeks the death penalty when certain factors come before us. In this case, the motive was a factor. The fact that this young lady was pregnant and that means two lives are snuffed out at the same time.
Another factor [t]he State takes into consideration is the manner of the murder. This morning when we were doing Closing Arguments, I was referring to this as a hate murder in that just go shoot her with a shotgun and put her out of her misery. That's not what happened. You have what we consider torture, to be a bow and arrow through your body. So, that is a factor that [t]he State took into consideration, a huge factor, huge.
In these kinds of cases, lack of remorse. What happens in these cases? "Dear God, forgive me for what I have done." That's remorse, as opposed to, "Crack head, dope whore," all that stuff. Now, with that being said, no more emotion.
The State in turn argues that Smith did not make a contemporaneous objection to the prosecutions rebuttal. See Lard v. State , 2014 Ark. 1 at 26, 431 S.W.3d 249, 268. Smith objected when the prosecution expressed its intent to discuss the sentencing forms and its decision to pursue the death penalty. The circuit court ruled against him. We hold that he has preserved this issue for our review.
Arkansas Code Annotated section 5-4-602(5)(C) (Repl. 2013) specifically permits the State to "reply in rebuttal" during closing arguments. The circuit court is given broad discretion to control counsel in closing arguments, and we do not interfere with that discretion absent a manifest abuse of it. Lee v. State , 326 Ark. 529, 532, 932 S.W.2d 756 (1996). Remarks made during argument that require reversal are rare and require an appeal to the jurors' passions. Wetherington v. State , 319 Ark. 37, 41, 889 S.W.2d 34, 36 (1994). The circuit court considered Smith's argument and specifically found that he stated that there would be no difference between life imprisonment and death. The court noted that there is a difference between death and life in prison and allowed the prosecution to discuss why it pursued the death penalty. The State briefly summarized the reasons why it chose to do so; namely, that Smith had shot the victim with a crossbow and that he lacked remorse. Smith cannot show that the circuit court manifestly abused its discretion or that the State's comments were specifically designed to appeal to the jurors' passions.
IV. Failure of the Circuit Court to Draw the Jury's Attention to the Proper Definition of Person.
For his fourth point, Smith argues that the circuit court failed to bring to the jury's attention that a "person" could not be an unborn child as it applies to the aggravating circumstances listed in Ark. Code Ann. § 5-4-604. Under Arkansas Rule of Appellate Procedure-Crim. 10(b)(ii), this court must consider whether the circuit court failed in its obligation to bring to the jury's attention a matter essential to its consideration of the death penalty. See also Wicks v. State , 270 Ark. 781, 606 S.W.2d 366 (1980). This court has recognized that an error in the completion of the penalty-phase verdict forms concerning mitigating circumstances can fall within the Wicks exception for matters essential to consideration of the death penalty. Thessing v. State , 365 Ark. 384, 408, 230 S.W.3d 526, 544 (2006) ; Wertz v. State , 2016 Ark. 249 at 8, 493 S.W.3d 772, 775-76 (court would review case where jury was erroneously submitted a single set of forms); Camargo v. State , 327 Ark. 631, 641-42, 940 S.W.2d 464, 469 (1997) (failure of jury to make the necessary written findings to impose the death penalty was essential to the jury's imposition of the death penalty); Bowen v. State , 322 Ark. 483, 499, 911 S.W.2d 555, 562 (1995).
Here, Smith's argument does not fall within the first Wicks exception. Our case law is clear that Wicks presents only narrow exceptions that are to be rarely applied. Anderson v. State , 353 Ark. 384, 398, 108 S.W.3d 592, 600 (2003). As it pertains to jury forms, we have applied the exception when the jury has incorrectly filled out forms, when forms have been missing, when the jury failed to make written findings as required by law, or when the jury was presented with an aggravator that violated the ex post facto clauses of the Constitution. In such instances we say the circuit court had an obligation to remedy the matter. Instead, Smith argues that the court should have instructed the jury that "person" does not include an unborn child. See Section I, supra . While the prosecutor chose not to file a separate homicide charge for the death of Cherrish Allbright's unborn child, there is no question under Arkansas law that he could have. See Ark. Code Ann. § 5-1-102(13)(B)(i)(a). Smith would have us apply the exception here to his argument for a limited statutory interpretation; we decline to do so.
V. Arbitrary Factor
Lastly, Smith argues that the death penalty was imposed under an arbitrary factor because the jury did not find that he lacked a significant criminal history. During the penalty phase of the trial, Smith did not present any evidence of his lack of criminal history. Instead, after the defense had made its closing argument, Smith's attorney asked to readdress the jury because he forgot to mention that his client was young and had no previous criminal history. The prosecution and the court agreed that it was necessary to do so.
Thereafter, Smith's attorney readdressed the jury and stated that his client is 20 years old and "[t]he State and defense agree that my client has no prior convictions." Likewise, the State in its closing stated, "As the prosecuting attorney, I'm asking you to check the box that shows he has a minimal record and that he's young. We want you to fill that box." The jury form for mitigating circumstances instructs that "For each of the following mitigating circumstances, you should place a checkmark in the appropriate space to indicate the number of jurors who find that the mitigating circumstances probably exists." Despite the request in closing from both parties, the jury returned a signed form 2 and found the only mitigatory circumstance to be that Smith was young at the time of the murder. Specifically, on the section of the form that deals with mitigation of punishment based on criminal history, it says "Brad Hunter Smith has no significant history of prior criminal activity. Check one of the following:". The jury checked the option that said, "No member of the jury finds that this circumstance probably exists." Significantly, we note, the instruction makes no reference to prior convictions but rather prior criminal activity.
Under Rule 10(b)(vii) of the Arkansas Rules of Appellate Procedure-Crim., this court must review whether the death penalty was administered under the influence of passion, prejudice, or any other arbitrary factor. A jury is not required to find a mitigating circumstance just because the defendant puts before the jury some evidence that could serve as the basis for finding the mitigating circumstance. Miller v. State , 2010 Ark. 1 at 41, 362 S.W.3d 264, 288. The jury alone determines what weight to give the evidence and may reject it or accept all or any part of it the jurors believe to be true. Id. However, when there is no question about credibility and when objective proof makes a reasonable conclusion inescapable, the jury cannot arbitrarily disregard that proof and refuse to reach that conclusion. Roberts v. State , 352 Ark. 489, 509, 102 S.W.3d 482, 496 (2003).
In his reply brief, Smith acknowledges that no evidence was presented to the jury in this regard. Instead, he argues that the absence of evidence establishes this mitigating circumstance. Smith had the opportunity to present evidence of his lack of criminal history to the jury but declined to do so. Further, the circuit court specifically instructed the jury that arguments of counsel are not to be considered evidence. Clearly, the jury did not act arbitrarily when it chose not to find Smith's history of criminal activity (or lack thereof) to be worthy of mitigating the punishment for his crime in this case.
The transcript of the record in this case has been reviewed in accordance with Arkansas Supreme Court Rule 4-3(i) (2018), which requires, in cases in which there is a sentence of life imprisonment or death, that we review all errors prejudicial to the defendant. None have been found.
Affirmed.
Special Justice Russell Meeks joins.
Hart, J., dissents.
Wynne, J., not participating.
Josephine Linker Hart, Justice, Dissenting.
I would reverse for a new sentencing trial. First, I disagree with the majority's decision as to Part I of its opinion, which concludes that the issue of whether the jury should have been presented an aggravating circumstance pursuant to Ark. Code Ann. § 5-4-604(4) (Repl. 2013) (the Aggravating Circumstances Statute) is not preserved for our consideration. Smith's first argument is adequately preserved and is itself meritorious. Furthermore, regardless of whether this argument is adequately preserved, we still must address it because Rule 10(b)(ii) of the Arkansas Rules of Appellate Procedure-Criminal requires us to determine whether the circuit court satisfied its "obligation to bring to the jury's attention a matter essential to its consideration of the death penalty[.]" Second, as a separate matter, Rule 10(b)(ii) also requires reversal for the circuit court's failure to instruct the jury that Smith's lack of a prior criminal history was an undisputed mitigating circumstance.
Prohibition of Aggravating Circumstance - The Statutory Definitions of "Person"
The majority opinion details the factual circumstances relevant to this issue. Ark. Code Ann. § 5-4-604 sets forth the aggravating circumstances that a jury is to consider when determining whether one convicted of capital murder should be sentenced to either death or life in prison without the possibility of parole. Subsection (4) of the Aggravating Circumstances Statute lists the following as an aggravating circumstance:
(4) The person in the commission of the capital murder knowingly created a great risk of death to a person other than the victim or caused the death of more than one (1) person in the same criminal episode[.]
Ark. Code Ann. § 5-4-604(4) (emphasis added). The General Assembly added subsection (4) to the Aggravating Circumstances Statute in 1995. Act of Apr. 11, 1995, No. 1205, 1995 Ark. Acts 5783.
Ark. Code Ann. § 5-1-102 (the "Definitions Statute") sets out definitions to be used when interpreting the remainder of the criminal code set forth under Chapter 5, including the Aggravating Circumstances Statute.
Subsection (13) of the Definitions Statute provides the following definitions for "Person":
(13)(A) "Person ," "actor," "defendant," "he," "she," "her," or "him" includes:
(i) Any natural person ; and
(ii) When appropriate, an organization as defined in § 5-2-501.
Ark. Code Ann. § 5-1-102(13)(A) (emphasis added). Subsection (13)(A)(i) defines "person" as "any natural person" without restricting this definition's application to any particular set of criminal statutes; this definition applies to the entire criminal code. In 1999, the General Assembly amended subsection (13) of the Definitions Statute, see Act of Apr. 9, 1999, No. 1273, 1999 Ark. Acts 5209, to add section "(B)," which supplied a second definition of "person" applicable to a particular set of criminal statutes:
(B)(i)(a) As used in §§ 5-10-101 -- 5-10-105, "person" also includes an unborn child in utero at any stage of development.
(b) "Unborn child" means offspring of human beings from conception until birth.
Ark. Code Ann. § 5-1-102(13)(B)(i)(a) -(b) (emphasis added).
Smith's argument is simple. Subsection (13)(A)(i)'s "any natural person" definition applies to the Aggravating Circumstances Statute, and subsection (13)(B)'s "unborn child" definition specifically does not; the latter definition applies only to §§ 5-10-101 to -105, which are the homicide-charging statutes. Accordingly, while the prosecution certainly would have been within its statutory right to charge Smith with a murder count for the death of Allbright's unborn child, the prosecution should not have been able to use the death of Allbright's unborn child as an aggravating circumstance in favor of sentencing Smith to death. There is no ambiguity or conflict in the plain language of these statutes, and even if there were, the Rule of Lenity would require us to interpret the statutes in favor of the defendant. "We construe criminal statutes strictly, resolving any doubts in favor of the defendant." Thompson v. State , 2014 Ark. 413, at 5, 464 S.W.3d 111, 114 (Arkansas Supreme Court ruling that defendant could not be convicted under statute for felony failure to appear when he had not yet been charged with a criminal offense).
Furthermore, when construing multiple legislative acts implicating the same issue, this court "must presume that when the General Assembly passed the later act, it was well aware of the prior act." Reed v. State , 330 Ark. 645, 649, 957 S.W.2d 174, 176 (1997). Subsection (4) of the Aggravating Circumstances Statute was already on the books when the legislature added subsection (13)(B) to the Definitions Statute. Accordingly, we must presume that the legislature knew what it was doing when it drafted subsection 13(B) of the Definitions Statute to apply only to §§ 5-10-101 to -105, and not to subsection (4) of the Aggravating Circumstances Statute.
I disagree with majority's decision not to address this argument for Smith's failure to preserve the issue for our review. Indeed, Smith's counsel acknowledges that he abandoned the argument below. However, Smith argues that this court should nonetheless consider the argument here because this is a death-penalty case, and counsel's abandonment of the argument would unquestionably warrant relief under Rule 37 of the Arkansas Rules of Criminal Procedure for ineffective assistance of counsel. Singleton v. State , 274 Ark. 126, 128, 623 S.W.2d 180, 181 (1981) ("In death penalty cases we will consider errors argued for the first time on direct appeal where prejudice is conclusively shown by the record and this Court would unquestionably require the trial court to grant relief under Rule 37."). Smith's counsel has done the honorable thing and "fallen on his sword" for his client, acknowledging in his brief,
Counsel abandoned that argument, which ultimately would have limited (the State) to the presentation of a single aggravating circumstance, in favor of an argument that accomplished little, if anything, left both aggravating circumstances intact, and thereby precipitated an unreliable result. This Court would unquestionably have required the circuit court to grant Rule 37 relief. Accordingly, Singleton applies, and the merits may be addressed.
Because counsel's decision to abandon this argument at trial prejudiced and in no way served his client's interests, and because the argument itself is plainly correct, I would address the argument and reverse for a new sentencing trial.
Indeed, this court must address this issue pursuant to Rule 10(b)(ii), as Smith argues and as set forth in greater detail below regarding Smith's lack of a prior criminal history. The majority declines to do so under the auspices that this case does not fall within one of the " Wicks exceptions" to the objection requirement, specifically ruling that "Smith would have us apply the exception to his argument for a limited statutory interpretation; we decline to do so," without more. This conclusion cuts directly against the cases the majority cites in support, which have acknowledged the applicability of such an exception in similar and even far less compelling circumstances. See, e.g. , Wertz v. State , 2016 Ark. 249, at 8, 493 S.W.3d 772, 775-76 (court reversing for new trial where case was erroneously submitted to jury on a single set of verdict forms); Camargo v. State , 327 Ark. 631, 641, 42, 940 S.W.2d 464, 469 (1997) (failure of jury to make the necessary written findings to impose the death penalty was essential to the jury's imposition of the death penalty); Bowen v. State , 322 Ark. 483, 499, 911 S.W.2d 555, 562 (1995) (failure to object to application of ex post facto law did not waive argument on appeal because issue was essential to jury's consideration of the death penalty).
No Mitigating Circumstance for Smith's Lack of Criminal History
As the majority sets out in its opinion, the jury in this case did not find a mitigating circumstance for the fact that Smith has no significant prior criminal history. This transpired despite the fact that Smith's attorneys, the State's attorneys, and the trial court all agreed that Smith has no significant prior criminal history, and the fact that both Smith's attorneys and the State's attorneys specifically instructed the jury to check the box on the verdict form to indicate the jury's finding that this mitigating circumstance exists. Smith argues that this amounts to a verdict reached under an "arbitrary factor." The majority finds no basis for reversal on this issue because Smith's counsel only alleged his client's lack of criminal history during closing arguments (as opposed to actually presenting evidence of that fact during Smith's case-in-chief), and because the circuit court instructed the jury that closing arguments from counsel were not evidence. The circuit court did not instruct the jury that it should find that a mitigating circumstance exists for Smith's lack of significant prior criminal history, and the majority therefore concludes that the jury did not reach its decision under an arbitrary factor.
I take a different view of this issue from that expressed by the majority and argued by Smith. Rule 10 of the Arkansas Rules of Appellate Procedure-Criminal, provides for "mandatory review" of certain issues in cases in which a jury returns a death sentence. Rule 10(b) of Arkansas Rules of Appellate Procedure-Criminal. One of those issues we must review is "whether the trial court failed in its obligation to bring to the jury's attention a matter essential to its consideration of the death penalty[.]" Rule 10(b)(ii). Whether formulated specifically as a formal "stipulation" or otherwise, I submit that in a death-penalty trial where literally every attorney participating in the proceeding, including the trial judge himself, all agree that a mitigating circumstance exists, the undisputed existence of that mitigating circumstance constitutes "a matter essential to [the jury's] consideration of the death penalty" under Rule 10(b)(ii). Indeed, it is difficult to conceive of an issue to which this rule, which is at play only in death-penalty cases, would more directly apply. The circuit court should have instructed the jury as to the existence of this mitigating circumstance, and Rule 10 provides that our review of this question is "mandatory" without regard to whether or how the underlying issue has been raised or argued. Accordingly, I would reverse and remand for a new sentencing trial.
Brown was a minor at the time of the murder.
The definition of "person" was never read to the jury. However, the prosecutor referenced the definition in its closing arguments and the submitted jury form instructed the jury that it could consider the death of Allbright and her unborn child.
We are not passing on the merits of Smith's claim. We hold that the issue is not properly preserved for our review. | [
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RHONDA K. WOOD, Associate Justice
Appellant Roger D. Sims appeals the dismissal of his petition for writ of habeas corpus. Sims raises two grounds for reversal of the order-that the circuit court erred in rejecting his claim that he was subject to double jeopardy and that the sentence imposed on him was illegal. We find no error and affirm the order.
I. Background
In 2001, Sims pleaded guilty to rape and incest in the Craighead County Circuit Court and was sentenced to concurrent terms of imprisonment in the Arkansas Department of Correction (ADC) of 420 months for rape and 120 months for incest. In 2017, Sims, who is incarcerated in Texas, filed his habeas petition in the Jefferson County Circuit Court, that is, in the county where the headquarters of the ADC and its director are located. See Hundley v. Hobbs , 2015 Ark. 70, at 7-8, 456 S.W.3d 755.
II. Grounds for Issuance of the Writ
A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacks jurisdiction over the cause. Philyaw v. Kelley , 2015 Ark. 465, 477 S.W.3d 503. Jurisdiction is the power of the court to hear and determine the subject matter in controversy. Baker v. Norris , 369 Ark. 405, 255 S.W.3d 466 (2007). Under our statute, a petitioner for the writ who does not allege his actual innocence and proceed under Act 1780 of 2001 must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that he is being illegally detained. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016). Unless the petitioner can show that the trial court lacked jurisdiction or that the commitment was invalid on its face, there is no basis for a finding that a writ of habeas corpus should issue. Fields v. Hobbs , 2013 Ark. 416, 2013 WL 5775566.
III. Standard of Review
A circuit court's decision on a petition for writ of habeas corpus will be upheld unless it is clearly erroneous. Hobbs v. Gordon , 2014 Ark. 225, 434 S.W.3d 364. A decision is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id.
IV. Double Jeopardy
Sims argues that his sentence was rendered illegal because he was found guilty of both rape and incest. We have held that, while some double-jeopardy claims are cognizable in habeas corpus proceedings, when the petitioner does not show that on the face of the commitment order there was an illegal sentence imposed, the claim does not implicate the jurisdiction of the court to hear the case, and the claim is not one that is cognizable. Edwards v. Kelley , 2017 Ark. 254, 526 S.W.3d 825. Sims did not make that showing because the face of the judgment does not establish that the two offenses are the same offense.
For purposes of double jeopardy, whether two offenses are the "same offense" depends on whether each statutory provision requires proof of a fact that the other does not. Under this criteria, rape and incest require the satisfaction of different elements and thus are separate offenses. Moreover, the issue is one that could have been raised before Sims entered his plea of guilty to rape and incest. See id. Sims did not meet his burden of establishing that his double-jeopardy claim was cognizable in a proceeding for a writ of habeas corpus.
V. Illegal Sentence
Sims contends that his sentence was rendered illegal because the judgment-and-commitment order required that he complete the ADC's RSVP program for sexual offenders while in prison. Here, the circuit court found that the judgment-and-commitment order did not contain this requirement. The court noted that the only requirement in the judgment was that Sims register as a sex offender.
Sims appended to his habeas petition a copy of what he purported to be the judgment-and-commitment order in his case. Handwritten at the top of the final page of the order are the words, "defendant is ordered to complete RSVP in prison." The body of the document does not contain any such language but only requires he register as a sex offender. The record does not contain a certified copy of the original judgment-and-commitment order for us to compare, however, the circuit court ruled that the order does not require completion of the RSVP program. Sims does not argue that he has been required to complete the RSVP program during his approximately sixteen years of incarceration. Considering the evidence as advanced by Sims, we cannot say that the circuit court erred in finding that the judgment-and-commitment order did not include a special condition of incarceration as part of Sims's sentence.
VI. Request for a Hearing
Sims asks that this court order a hearing to be held on his petition. We have noted that, while our statutory habeas corpus scheme contemplates a hearing in the event the writ is issued, there is no requirement that a hearing be given a petitioner regardless of the content of the petition. Mackey v. Lockhart , 307 Ark. 321, 819 S.W.2d 702 (1991). A hearing is not required on a habeas petition, even when the petition alleges an otherwise cognizable ground, when probable cause for the issuance of the writ is not shown by affidavit or other evidence. As Sims failed to demonstrate probable cause for the issuance of the writ, the circuit court was not required to hold a hearing on his petition, and we decline to order a hearing on the claims. Johnson v. State , 2018 Ark. 42, 538 S.W.3d 819.
Affirmed.
Sims named the State of Arkansas as respondent to his petition for writ of habeas corpus. The circuit court noted that Arkansas Code Annotated section 16-112-105(b)(1) requires that the action be directed to the person in whose custody the prisoner is detained. Sims should have named Wendy Kelley, Director of the ADC. Nevertheless, Sims stated that he was filing his petition as a person in the custody of the ADC and the circuit court ruled on the claims in the habeas petition as though Sims had named Kelley. | [
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SHAWN A. WOMACK, Associate Justice
Appellant Michael D. Muldrow is an inmate incarcerated in a facility of the Arkansas Department of Correction in Lincoln County. He sought to proceed as a pauper with a petition for writ of habeas corpus in the circuit court in that county. The circuit court denied Muldrow's request to proceed in forma pauperis, and Muldrow lodged this appeal. Muldrow filed a motion in which he seeks an extension of time to file his brief. Because it is clear from the record that the circuit court correctly found that Muldrow's habeas petition did not state a colorable cause of action, we affirm on appeal and the motion is moot.
I. Underlying Petition and Order Denying Pauper Status
The habeas petition that Muldrow sought to pursue as a pauper cited the statutes for Act 1780 of 2001 Acts of Arkansas, as amended by Act 2250 of 2005, which provides habeas relief based on new scientific evidence. Ark. Code Ann. §§ 16-112-201 to -208 (Repl. 2016). The petition also referenced Arkansas Code Annotated sections 16-112-101 to -123 (Repl. 2016) and alleged that his conviction should be dismissed because the trial court lacked jurisdiction. Muldrow based these claims on allegations of prosecutorial misconduct and actual innocence.
In its order denying pauper status for Muldrow on the petition, the circuit court specifically found that Muldrow had failed to allege facts that would support a colorable cause of action. The circuit court based that conclusion on its findings that prosecutorial misconduct was not a cognizable claim in habeas proceedings and that a claim under Act 1780 must be filed in the county where the petitioner was convicted.
II. Standard of Review
Our review of a decision to grant or deny a petition to proceed in forma pauperis is abuse of discretion. Penn v. Gallagher , 2017 Ark. 283, 2017 WL 4683871. The circuit court's factual findings in support of its exercise of discretion will not be reversed unless clearly erroneous. Id. Rule 72 of the Arkansas Rules of Civil Procedure conditions the right to proceed in forma pauperis in civil matters on indigency and the circuit court's satisfaction that the alleged facts indicate "a colorable cause of action." Ark. R. Civ. P. 72(c) (2017). Obvious defects in the underlying petition allow this court to dispose of an appeal from the denial of in forma pauperis proceedings. Wood v. State , 2017 Ark. 290, 2017 WL 4837357. If the underlying petition clearly fails to state a colorable cause of action, there has been no abuse of discretion, and this court may summarily affirm the denial of in forma pauperis status. See Ashby v. State , 2017 Ark. 233, 2017 WL 3300478.
III. Jurisdiction
A petition for relief under Act 1780 is commenced by filing a petition in the court in which the conviction was entered. Ark. Code Ann. § 16-112-201(a). If Act 1780 is not the basis for issuance of the writ, our statutes provide, "The writ shall be directed to the person in whose custody the prisoner is detained, and made returnable as soon as may be ... before the circuit judges of the county in which it may be served, if either are within the county." Ark. Code Ann. § 16-112-105(b)(1) ; Hundley v. Hobbs , 2015 Ark. 70, at 3, 456 S.W.3d 755, 757. A circuit court, in proceedings other than those under Act 1780, has personal jurisdiction over the prison officials who detain a prisoner seeking the writ, and it has authority to return the writ when that prisoner is incarcerated within the jurisdiction of the court from which he or she seeks the writ. Dunahue v. Kelley , 2018 Ark. 4, 534 S.W.3d 140. Because Muldrow challenged a conviction in the Hempstead County Circuit
Court, the Lincoln County Circuit Court did not have jurisdiction under Act 1780. It did have jurisdiction for claims for the writ not under the Act.
IV. Muldrow's Bases for the Writ
Because the circuit court in which he filed the petition could not consider Muldrow's claims under Act 1780, his petition failed to allege facts indicating a colorable cause of action under the Act. Under our statute, a petitioner for the writ who does not proceed under Act 1780 must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that he or she is being illegally detained. Ark. Code Ann. § 16-112-103(a)(1). Muldrow alleged that he was being held according to an invalid conviction and that the trial court lacked jurisdiction. The circuit court therefore appropriately considered any basis for the writ that Muldrow may have raised outside Act 1780.
The two bases for relief that Muldrow used to support the issuance of the writ, however, are not cognizable in habeas proceedings outside the Act. A claim of trial error, including a claim of prosecutorial misconduct, does not implicate the facial validity of the judgment or the jurisdiction of the trial court; therefore, Muldrow's allegations of prosecutorial misconduct do not support issuance of the writ. Garrison v. Kelley , 2018 Ark. 8, 534 S.W.3d 136 ; see also Howard v. State , 367 Ark. 18, 238 S.W.3d 24 (2006) (holding that prosecutorial misconduct was trial error that did not rise to the level of fundamental error).
Claims of actual innocence, which are effectively challenges to the sufficiency of the evidence, are due-process claims that are not cognizable in habeas proceedings that are not brought under Act 1780. Clay v. Kelley , 2017 Ark. 294, 528 S.W.3d 836. Muldrow alleged no facts that would support issuance of the writ, and he failed to state a colorable cause of action. Accordingly, we affirm the denial of pauper status, and Muldrow's motion for extension of brief time is moot.
Affirmed; motion moot.
Hart, J. dissents.
Josephine Linker Hart, Justice, dissenting.
Mr. Muldrow has not yet perfected his appeal, so this court's jurisdiction is limited to hearing his motion for an extension of time to file his brief. Accordingly, while it is permissible for this court to dismiss Mr. Muldrow's appeal because he did not timely file his brief, it is most certainly not proper to dismiss his appeal on the merits and declare the motion "moot."
Interestingly, the circuit court denied Mr. Muldrow's motion to proceed in forma pauperis on his habeas petition, finding as required by Rule 72(c) of the Arkansas Rules of Civil Procedure that Mr. Muldrow did not have what the rule calls a "colorable cause of action." Nonetheless, the circuit court granted Mr. Muldrow status as a pauper to pursue this appeal.
Pending before this court is a single motion. If Mr. Muldrow is granted additional time to file his brief, which is a routine matter, this court will entertain a simple appeal, There is no just reason to skip over Mr. Muldrow's motion to reach an appeal that we do not yet have jurisdiction to consider. Certainly the majority's action does not serve judicial economy-it has drafted a full, signed opinion when a docket entry is the proper vehicle for disposing of Mr. Muldrow's motions. This court should safeguard all appellants' constitutional rights to due process and access to the courts, not disregard those rights.
I dissent. | [
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WAYMOND M. BROWN, Judge
A Garland County jury found appellant Lonnie Davidson guilty of commercial burglary and theft of property, valued at more than $1000 but less than $5000, in case No. 26CR-16-291 and sentenced him to an aggregate term of five years' imprisonment to run concurrent to the sentence he received in case No. 26CR-16-293. Appellant was also fined $10,000. In case No. 26CR-16-293, appellant was found guilty of aggravated robbery and residential burglary and was sentenced to an aggregate term of forty years' imprisonment. Appellant only challenges his aggravated-robbery conviction on appeal, contending that the evidence was insufficient to support the conviction. We affirm.
Appellant was charged with committing aggravated robbery against Mr. James Krauss on April 12, 2016. Appellant's jury trial took place May 10-11, 2017. Mr. Krauss testified that he was living at 130 Alysonview Street in Hot Springs on April 12, 2016. He stated that he heard a noise outside in the early morning hours on that date, which awoke him. He testified that he got up and walked to his back window, which overlooks his back deck, anticipating seeing a raccoon or other animal. He further testified:
I walked up to the window to see if I could see anything and I heard another rustling, but it was down lower. I turned the lights on to the patio, and the outside lights and stood there for a few minutes and didn't see anything. I opened the door, walked to the edge of the patio, and that's when I noticed the four-wheeler was out in the middle of the yard.
When I went to sleep the night before it was on the slab underneath the patio. I was trying to figure out why my four-wheeler was out in the middle of the yard. I went to the edge of the stairway there and I was trying to figure out if it rolled off. I walked to the landing before the cement slab and noticed there was a row of firewood that had been knocked over and that's where the four-wheeler went off. I continued to walk down on to the slab and looked underneath the patio and didn't really see anything. I turned around and I saw the Defendant.
The defendant was wearing a dark jacket and a baseball cap. He told me to get back up in the house and I was about half-startled trying to figure out what was going on and I hesitated trying to figure out if he was a homeless person or something and right then is when he pulled the gun up on me.
He pointed the gun at me and he was motioning upstairs and he said, "Get your F-ing ass up there or I'll blow your head off." I went back up the stairs. I kept an eye behind me and he followed me up the stairs and when I got to the middle landing again, I looked back and he was about two steps behind me. I kind of went a little faster and got up and went to the door and when I got to the door, I turned back and he was on the top step of the stairway there and still waving a gun at me and the whole time telling me to get in the house, get in the house. And so at that time my wife had gotten up by that time wanting to know what was going on and I yelled at her, I said, "Get my gun! Get my gun!" just try to scare him away. And I went in and locked the door.
Mr. Krauss stated that he did not have a gun in the house but was attempting to "bluff" appellant. He said that his wife never came out of the house and that he put her in a safe room in the middle bathroom as soon as he got back inside. He testified that he looked for his cell phone, which was in the kitchen. He stated that as he walked through the living room to reach the kitchen, he could hear appellant yelling several things, including, "You better stay in the house or I'll come and get both of you." He said that he retrieved his phone, walked into the hallway, and dialed 911. He stated that the police arrived quickly, but that he was unsure if appellant was still on the premises at that time. He testified that he was missing four cases of tools that appellant took after he kicked his basement door in. He stated that all but one of the cases were recovered. He said that he was able to identify appellant as the person who threatened him later on that morning. He also positively identified appellant at the trial.
On cross-examination, Mr. Krauss stated that he recalled telling Officer Chris Savage that he saw what appeared to be a black handgun and that appellant told him to go back upstairs or he would "blow [his] head off." He said that he also recalled speaking to Detective Scott Lampinen a few days later and that he was "totally convinced it was a gun" that appellant pointed at him. He said that he guessed that it "could have been anything" but he remembered seeing the round barrel of a gun. He stated that appellant was holding it with two hands, one hand on each side of the gun.
Deborah Krauss stated that she is James's wife. She said that she woke up shortly after her husband on the morning of April 12, 2016, and wondered what was going on. She testified,
I could see him standing on the landing and he said, "Just stay back." And I said, "What's going on? I heard something." I kept standing in the bedroom and the next thing I know is I hear Jim coming up the stairs and saying, "He's got a gun! He's got a gun! Run!" and I just stood there, kind of frozen and I didn't know which direction to go. Jim shoved me into a bathroom and locked the door and I could hear him frantically running through the house and then I heard him on the phone to 911. I stayed in the bathroom until the police arrived.
On cross-examination, she stated that she never stepped outside of the house. She admitted that she did not hear any communication between appellant and her husband. She stated that she heard her husband frantically tell her to run and to get his gun, which she knew her husband did not have. She said that based on this, she figured "somebody was after him." She stated that she saw a figure a couple of steps behind her husband, but that she only could see the top of his head. She explained, "It happened so quick. I was so scared. It was dark. I just woke up. It's 5:00 in the morning."
Detective Lampinen testified that on April 12, 2016, he went to the area near the Krausses' residence to attempt to locate the suspect. He stated that he first saw a suspicious person near 105 Millbranch Court. He said that when he made contact, the person took off running and that he eventually chased the person to 540 Ridgeway. Appellant was subsequently apprehended inside the residence at that address. Detective Lampinen stated that appellant was able to tell officers where the Krausses' items were located. He said that they were able to recover two sets of tools belonging to the Krausses and that a third set of tools was turned over to the police by a local resident. The fourth set of tools was never recovered.
On cross-examination, Detective Lampinen stated that no gun was ever retrieved during the investigation. However, he stated that he believed that there were "possible flashlights" recovered. He testified that he informed appellant of Mr. Krauss's claim that appellant had a gun, but that appellant claimed that it was only a flashlight. Detective Lampinen stated that on the morning of the robbery, Mr. Krauss was "definitive that it was a gun" appellant had. He stated that in a subsequent interview, Mr. Krauss stated that it could have been a flashlight, but that he believed it was a handgun.
Detective Kenneth May testified that he assisted in the aggravated-robbery investigation on April 12, 2016. He also stated that he assisted with the arrest and subsequent questioning of appellant. Appellant's interrogation was videotaped, and the jury was able to view it during Detective May's testimony.
Appellant unsuccessfully moved for a directed verdict at the conclusion of the State's case, arguing, "We feel that the State has failed to prove that he is either, based on the evidence taken as a whole, that he had a deadly weapon[,] or he represented by his words or conduct that he was so armed in the commission of a theft."
Appellant testified that he was frightened when Mr. Krauss came out and "confronted" him. He stated that he just wanted to get away and that he had no intention of harming anyone. He testified that he pointed his flashlight at Mr. Krauss, turned it on, and told Mr. Krauss to "go back up the stairs and go back in the house." He denied ever having a gun or threatening to kill Mr. Krauss.
Appellant renewed his directed-verdict motion at the conclusion of the evidence. The motion was denied. The jury found appellant guilty of aggravated robbery, and appellant was subsequently sentenced to twenty-five years' imprisonment for that charge. The sentencing order was entered on May 16, 2017, and an amended sentencing order was filed on May 25, 2017. An untimely notice of appeal was filed June 22, 2017; however, counsel filed a motion for a belated appeal on December 15, 2017, admitting fault. Counsel had already filed a motion to withdraw as appellant's attorney on December 14, 2017. The supreme court granted both motions on January 11, 2018, and appointed new counsel for appellant. This appeal followed.
A motion for directed verdict is a challenge to the sufficiency of the evidence. In a challenge to the sufficiency of the evidence, this court considers only the evidence that supports the conviction in the light most favorable to the State and determines whether the verdict is supported by substantial evidence. Substantial evidence is evidence that is forceful enough to compel a conclusion beyond suspicion or conjecture. Circumstantial evidence may constitute substantial evidence to support a conviction if it excludes every other reasonable hypothesis other than the guilt of the accused; that determination is a question of fact for the finder of fact. Weighing the evidence, reconciling conflicts in the testimony, and assessing credibility are all matters exclusively for the trier of fact. A jury may accept or reject any part of a witness's testimony, and its conclusion regarding credibility is binding on the appellate court.
Appellant contends that the evidence was insufficient to support his aggravated-robbery conviction. More specifically, appellant maintains that the evidence was "insufficient to prove beyond a reasonable doubt that Appellant employed physical force or threatened to employ physical force upon Mr. and Mrs. Krauss." A person commits robbery if, with the purpose of committing a felony or misdemeanor theft, "the person employs or threatens to immediately employ physical force upon another person." Aggravated robbery occurs if the person committing the robbery is armed with a deadly weapon, represents by word or conduct that he or she is armed with a deadly weapon, or inflicts or attempts to inflict death or serious physical injury upon another person.
Here, Mr. Krauss testified that appellant pointed a gun at him and threatened to kill him. Appellant maintains that he did not have a gun, only a flashlight, and that he did not threaten to kill anyone. The jury was presented with conflicting testimony, and it chose to believe Mr. Krauss's version of events. Thus, the evidence, viewed in the light most favorable to the State, showed that while armed with a gun, appellant threatened Mr. Krauss's life. Accordingly, the evidence was sufficient to support appellant's aggravated-robbery conviction.
Affirmed.
Gruber, C.J., and Gladwin, J., agree.
He received twenty-five years' imprisonment for the aggravated-robbery charge and fifteen years' imprisonment for the residential-burglary charge.
This is the second time this case has been before us. We initially ordered a supplemental addendum in Davidson v. State , 2018 Ark. App. 456, 2018 WL 4610592.
Hill v. State , 2018 Ark. 194, 546 S.W.3d 483.
Id.
Id.
Wilson v. State , 2018 Ark. App. 371, 554 S.W.3d 279.
Lovelace v. State , 2017 Ark. App. 146, 516 S.W.3d 300.
Id.
Ark. Code Ann. § 5-12-102(a) (Repl. 2013).
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MIKE MURPHY, Judge
Appellant Alton Ray Robertson, Jr., was convicted of residential burglary and sentenced to 60 years' imprisonment in the Arkansas Department of Correction. His sole argument on appeal is that his right to a speedy trial was violated. We conclude that it was, and we reverse and dismiss his conviction.
Robertson was arrested on November 18, 2016, and was subsequently charged with residential burglary and aggravated assault. He was on parole at the time of his arrest and was later found to have ultimately violated the terms of his parole, so he remained in the State's custody from the time of his arrest through his jury trial on March 27, 2018, 494 days.
On February 28, 2018, pursuant to Rule 28.1(c) of the Arkansas Rules of Criminal Procedure, Robertson filed a motion to dismiss, asserting that his right to a speedy trial had been violated due to the State's failure to bring him to trial within twelve months of the date of his arrest. The motion was denied, and Robertson was convicted of residential burglary and acquitted on the aggravated-assault charge. Robertson appeals, specifically arguing that a particular order continuing his case, which was entered by the court on its own motion, did not comply with Arkansas Rule of Criminal Procedure 28.3(b) and was therefore insufficient to toll the running of time for speedy-trial calculations.
Under Rule 28.1 of the Arkansas Rules of Criminal Procedure, a defendant must be brought to trial within twelve months unless there are periods of delay that are excluded under Rule 28.3. Ark. R. Crim. P. 28.1(c) ; Yarbrough v. State , 370 Ark. 31, 33-34, 257 S.W.3d 50, 53 (2007). If the defendant is not brought to trial within the requisite time, the defendant is entitled to have the charges dismissed with an absolute bar to prosecution. Ark. R. Crim. P. 30.1 ; Yarbrough, supra. Once a defendant establishes a prima facie case of a speedy-trial violation, i.e., that his trial took place outside the speedy-trial period, the State bears the burden of showing that the delay was the result of the defendant's conduct or was otherwise justified. Id.
In the case before us, Robertson was arrested on November 18, 2016. On February 28, 2018, he filed a motion to dismiss for violation of his speedy-trial rights based on a scheduled trial date of March 20, 2018. We have held that the filing of a speedy-trial motion tolls the running of the time for a speedy trial under our rules. Id. The time period between the arrest and the filing of the motion is 468 days.
Here, the State concedes that Robertson made a prima facie showing of a speedy-trial violation and that the burden shifted to the State to show that the delay was the result of the defendant's conduct or was otherwise justified. Thus, we must determine whether the circuit court correctly excluded the challenged time periods from its speedy-trial calculations.
Robertson does not contest the exclusion of 28 days from February 7 to March 7, 2017, and another exclusion of 70 days from June 13 to August 22, 2017, as both delays were due to continuances he had requested. When 98 days are excluded from the 468-day period, 370 days remain.
Robertson had a trial set for Monday, October 23, 2017. That same day, the trial court entered an order continuing the trial until March 20, 2018. The order noted that a five-day jury trial was scheduled to begin October 23, 2017, and it stated that the time from October 23, 2017, until March 20, 2018, was excluded by the trial court for speedy-trial-calculation purposes. The order notes that it was distributed to Robertson's counsel. The trial court entered a second order continuing the trial to March 27, 2018. This order did not state that the time was excluded for speedy-trial purposes, and Robertson does not contend that it should be excluded from the speedy-trial calculation, except insofar as the speedy-trial time was tolled when Robertson filed his motion to dismiss for speedy-trial violations on February 28, 2018. Thus, this appeal raises the question of whether the 128-day period from the filing of the trial court's order on October 23, 2017, to the filing of Robertson's speedy trial motion on February 28, 2018, is rightly excluded from the speedy-trial calculation.
Robertson argues that it is not, because both the order and the docket entry failed to satisfy the requirements for exclusion found in Rule 28.3(b) of the Arkansas Rules of Criminal Procedure. Specifically, the entirety of the October 23, 2017 order stated that
1. This matter is on the Court's docket the week of October 23, 2017.
2. [Another case] is scheduled to begin October 23, 2017, and anticipated will take five days to complete.
3. The jury trial of this matter is hereby continued to Tuesday-Thursday, March 20-22, [2018], at 8:30 a.m.
4. The time from October 23, 2017 until March 20, 2018, is excluded for purpose of speedy trial calculation.
Arkansas Rule of Criminal Procedure 28.3(b) provides that in the event of docket congestion, a period of delay resulting from a continuance may be excluded for speedy trial purposes but only when, at the time the continuance is granted, a written order is entered wherein the court (1) explains with particularity the reasons the trial docket does not permit trial on the date originally scheduled; (2) determines that the delay will not prejudice the defendant; and (3) schedules the trial on the next available date permitted by the trial docket.
We agree with Robertson that the October 23, 2017 order unequivocally does not meet the requirements set forth in Rule 28.3(b). At the hearing on Robertson's speedy-trial motion, it was adduced that there was a possibility that the court had "cleared calendars" with staff at Robertson's counsel's office; however, even if the March 20, 2018 date was cleared as the first available date for Robertson's counsel, the order entered to that effect was still insufficient per the rules.
The State asserts that Robertson's argument is not preserved for appeal because Robertson did not make a contemporaneous objection to the exclusion of the time for speedy-trial purposes. Typically, a contemporaneous objection to the excluded period is necessary to preserve the argument in a subsequent speedy-trial motion if defense counsel is present at the hearing and has an opportunity to object. Bowen v. State , 73 Ark. App. 240, 243-44, 42 S.W.3d 579, 582 (2001). This is known as the contemporaneous-objection rule, and its purpose is to give the trial court an opportunity to know the reason for the disagreement with its proposed action prior to making its decision. Marta v. State , 336 Ark. 67, 80, 983 S.W.2d 924, 931 (1999).
Our supreme court discussed contemporaneous objections in sua sponte continuances in Tanner v. State , 324 Ark. 37, 42-43, 918 S.W.2d 166, 169 (1996). In Tanner , the court, at a pretrial hearing and on its own motion, reset the appellant's trial. Id. at 39, 918 S.W.2d at 167. The record did not indicate that the appellant or his counsel were present at the hearing, and an order excluding the period between the original and new trial dates was entered. Id. The order indicated the prosecution and defense were notified by mail. Id. The case was subsequently continued, and the appellant waited until approximately three months after the entry of the first order, and the day before trial, before raising an issue with it. Id. On the facts before it, our supreme court concluded that the appellant did not waive his right to move for dismissal based on a speedy-trial violation. Id. at 42-43, 918 S.W.2d at 169. Here, like in Tanner , there was no hearing, and there is no indication that Robertson's counsel had an opportunity to object.
The State argues that by virtue of "clearing calendars" with the defense attorney's office, Robertson had an opportunity to object. We are hesitant to say, however, that this is enough, especially considering that there is no record of the alleged phone conversation before us. Instead, what we have is a concession that calendars for future dates might have been checked, no record of what occurred on that phone conversation, and a sua sponte order that is insufficient on its face to toll speedy-trial calculations per our rules. On this record, it is not readily apparent that Robertson had an opportunity to make a contemporaneous objection. We reverse and dismiss.
Reversed and dismissed.
Abramson and Harrison, JJ., agree.
The court, ostensibly recognizing the deficiencies of its October 23, 2017 order, and after a hearing on Robertson's speedy-trial motion took place, entered an amended order of continuance on March 26, 2018. However, Rule 28.3(b) requires that the order of continuance be entered at the time the continuance is granted. Thus, the March 26, 2018 amended order is also insufficient to toll time for speedy-trial calculations. | [
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WAYMOND M. BROWN, Judge
This is an interlocutory appeal challenging the Faulkner County Circuit Court's order finding Terry Wyatt in civil contempt. The contempt finding stems from Terry's failure to comply with the circuit court's January 2016 order in his divorce from his ex-wife Lorene. The primary inquiry on appeal is whether the circuit court erred by finding that Terry had the ability to pay or make a credible attempt to pay the judgment awarded to Lorene. We affirm.
The Faulkner County Circuit Court entered an order and judgment in Lorene and Terry's divorce action in January 2016. The order awarded Lorene a substantial judgment against Terry, and one month after entry of the order, Lorene filed a motion for contempt. She asked that Terry be held in civil contempt and jailed until he complied with the circuit court's order. Terry resisted Lorene's motion arguing that he was not in willful contempt because he lacked the means or ability to comply with the order.
On May 31, 2016, the circuit court held a hearing on Lorene's motion for contempt. Also addressed was Terry's request for a waiver of the requirement for a supersedeas bond. At the hearing, it was established that Terry had not paid any alimony, had not paid any money toward the judgment entered against him, and was paying child support in the amount previously ordered by the circuit court and not his current obligation-$136 a week instead of the ordered $443 a week. Thus, it became Terry's burden to prove that he was unable to comply with the terms of the January 2016 order. Because the primary issue on appeal is whether Terry had the ability to pay is fact-intensive, a detailed synopsis of the evidence presented at the May 31 hearing is necessary.
Terry testified that he worked for A-1 Recovery Towing & Recovery, Inc., which was owned by Gerald Kennon, through August 2016. At that time, he began working for Cenark Construction, a company owned by his sons. He worked for Cenark Construction until February 2017, and he has been self-employed since that date. Additionally, Terry testified at length that he was unable to pay the judgment against him. He stated that he has no real property, cannot get a bond, and has numerous creditors, including the IRS.
By contrast, the evidence demonstrated that Terry continued to live a lifestyle comparable to the one he enjoyed prior to the divorce. He lived at 56 Wyatt Lane-the house he lived in during the divorce proceedings. Although he stated that his sons live with him and pay the rent. He also drove the same vehicle, but he claimed Gerald Kennon owned the vehicle and paid the insurance and tags on it and that he paid the $794 monthly payment. Additionally, Terry took a ski vacation; he testified that his sons paid for the vacation.
Evidence was also elicited that Terry had paid $25,000 to appeal the circuit court's January 2016 order. Terry said he borrowed this money from his sister. In addition, $175,000 was paid to settle Terry's bankruptcy proceeding. The language in the order provided that the debtor shall pay to receive a discharge. However, Terry and Gerald Kennon testified that it was Gerald who paid the $175,000 and not Terry.
Other relevant evidence included the disclosure that Amanda Mauser-an employee of his sons' corporations-was performing the task of mailing his weekly child-support payments and doing other personal business for him, including his tax returns. Terry testified that Mauser was not his employee and that he did not pay her.
Terry also admitted that 56 Wyatt Lane was searched by law enforcement and $20,000 cash was found in a safe. This money came from the sale of an excavator that a corporation owned. Terry admitted that he had the check made payable to him personally and then cashed it because the corporation had numerous judgments against it and he wanted to receive the benefit of the sale.
At the conclusion of the hearing, the circuit court announced from the bench that Terry was in contempt of court. In its announcement, the circuit court made clear that Terry lacked credibility, and it emphasized that Terry continued to maintain the lifestyle he had prior to the divorce. The circuit court found that he had neither complied with the January 2016 order nor made substantial efforts toward attempting to comply despite having the means to do so. Additionally, the circuit court ordered that no stay would be granted unless Terry posted a $600,000 supersedeas bond.
An initial contempt order was signed on May 31, 2016, and was electronically filed the following day. The stated purpose of this order was to facilitate Terry's commitment to the jail, and the order provided that Lorene's counsel was to prepare a more detailed order. A more detailed order was not immediately filed with the Faulkner County Circuit Clerk.
On July 20, 2016, Terry's counsel filed a motion for release, alleging his inability to post a bond or otherwise pay the sums ordered in the January 2016 order. Thereafter, on July 21, 2016, a detailed contempt order was entered of record. This order provided that Terry was in contempt of court and that he had the ability to either comply or make a credible effort to comply with the court's orders. It also included a provision that the request for a waiver of a supersedeas bond was denied and a bond amount of $600,000 was required. Thereafter, Terry's counsel then filed another motion for release on the same grounds previously alleged. On July 28, 2016, Terry filed a notice of interlocutory appeal pursuant to Arkansas Rule of Appellate Procedure-Civil 2(a)(13).
I. Issues on Appeal
In support of reversal, Terry argues the circuit court erred by holding him in contempt because he is unable to comply with the circuit court's order, which is a complete defense to contempt. In addition, he argues that his incarceration hinders any effort he could make to comply with the court's directive and that his health is a factor that weighs against his continued incarceration. He further argues that the setting of a $600,000 supersedeas bond and refusing to stay execution of the judgment impairs his appeal rights.
II. The Supersedeas Bond
Because the contempt issues are interrelated, we begin our review by addressing Terry's argument that the circuit court erred by refusing to issue a stay and requiring a $600,000 supersedeas bond. We do not reach the merits of this issue.
Terry's notice of appeal provides that he appeals the circuit court's contempt order pursuant to Arkansas Rule of Appellate Procedure-Civil 2(a)(13), which allows an appeal to be taken from a contempt order. Because Terry does not designate the denial of the supersedeas bond for appeal, we decline to address it.
III. Contempt
Terry's remaining arguments on appeal challenge the circuit court's contempt finding. Disobedience of any valid judgment, order, or decree of a court having jurisdiction to enter it may constitute contempt, and punishment for such contempt is an inherent power of the court. Contempt is divided into two categories: civil and criminal. A conditional penalty is civil in nature because it is specifically designed to coerce compliance with the court's order, and the civil contemnor may free himself by complying with the order.
Here, the circuit court held Terry in civil contempt. The contempt order provided that Terry was found to be in contempt and committed him to the Faulkner County Detention Center until he complied with the court's January 2016 order, made a credible effort to do so, posted a $200,000 cash bond, or until further order of the court. As the saying goes, by the terms of the order, Terry carried the keys of his prison in his own pocket.
To establish civil contempt, there must be willful disobedience of a valid court order. Our court will not reverse a finding of civil contempt unless it is clearly against the preponderance of the evidence, and a finding of contempt is clearly against the preponderance of the evidence if, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.
We begin by considering Terry's argument that he was unable to pay the judgment and thus, the circuit court erred by finding him in civil contempt and ordering his incarceration. In contempt proceedings where the object is to coerce the payment of money, the lack of ability to pay is a complete defense against enforcing payment from the defendant by imprisonment.
The question on appeal is whether the circuit court's ruling that Terry had the ability to pay was clearly against the preponderance of the evidence. In support of his argument that the circuit court erred, Terry directs our attention to testimony regarding his employment and expenses. He testified that he had very little money, no real estate, and no way to post a bond. He highlighted that Lorene began to vigorously pursue collection through garnishments immediately after the judgment was entered, and she found no money to satisfy her judgment. Terry also emphasizes that he provided the only documentary evidence of his income and expenses.
Terry argues that because his evidence of his income and expenses was unrebutted, the finding of contempt was clearly against the preponderance of the evidence. His argument is problematic. First, we always consider the testimony of an interested party to be controverted. And, whether testimony is credible is a question for the factfinder. Here, the circuit court specifically found that Terry lacked credibility. Secondly, Lorene's attorney vigorously cross-examined Terry and his witnesses and demonstrated that he was still living a lifestyle that did not comport with his exhibited income and expenses. Terry continued to live in the same house and drive the same vehicle. He had also taken a ski vacation, paid $25,000 to an attorney to appeal the order in his divorce case, and had his bankruptcy proceeding settled with a payment of $175,000.
Along these lines, Terry also contends the circuit court made erroneous findings regarding his lifestyle and the nature of his bankruptcy proceedings. Terry complains that the circuit court clearly erred by holding the generosity of others against him. We disagree. The circuit court stressed the significance that Terry has maintained the lifestyle he has enjoyed since the divorce and found Terry lacked credibility. Ultimately, the circuit court found that Terry was able to comply or make a credible attempt to comply with its orders. We are not left with a definite and firm conviction that a mistake was made.
Terry makes three additional arguments to support a reversal of his contempt finding: (1) that his continued incarceration demonstrates his inability to pay, (2) that his continued incarceration has the opposite effect of the one sought because he cannot earn money, and (3) that his incarceration is negatively affecting his health. Each of these arguments is also without merit.
First, we address Terry's contention that his continued incarceration demonstrates his inability to pay. We are not persuaded that this amounts to reversible error. Evidence shows that Terry has gained access to significant amounts of money when he deemed it important. For instance, the $25,000 he paid to appeal from the ruling in his divorce and the $175,000 paid to receive a discharge in his bankruptcy proceedings. Furthermore, there are facts demonstrating that Terry is willing to conceal money from creditors. He admitted hiding $20,000 from other creditors.
Additionally, Terry argues that his continued incarceration highlights the impossibility of his compliance. In this instance, we disagree. The circuit court has found that Terry lacks credibility and that he has access to large amounts of money when it is important to him. Thus, a finding that his continued incarceration may, in fact, coerce compliance is not against the preponderance of the evidence.
As a final argument, Terry claims that his continued incarceration is negatively affecting his health. After the filing of the notice of appeal, the circuit court entered an order for release for medical treatment. The order allowed Terry to be assessed concerning his blood-pressure readings. Later, Terry filed a motion for continued medical treatment and release and a supplemental motion for medical treatment. In these motions he alleged that the detention facility was not adequately treating his condition. As a preliminary matter, we acknowledge that this information was not available to the circuit court when it entered its contempt order. Thus, it is not properly considered in the context of this appeal. Nevertheless, the circuit court allowed Terry to be released to see his physician, and absent Terry's assertions, there is no evidence that his health suffered. For these reasons, we refuse to reverse on this basis.
Affirmed.
Harrison and Klappenbach, JJ., agree.
Balcom v. Crain , 2016 Ark. App. 313, 496 S.W.3d 405.
Id.
Id.
Id.
Id.
Id.
Stehle v. Zimmerebner , 2016 Ark. 290, 497 S.W.3d 188.
Balcom, supra.
Nipper v. Brandon Co. , 262 Ark. 17, 553 S.W.2d 27 (1977).
El Paso Prod. Co. v. Blanchard , 371 Ark. 634, 269 S.W.3d 362 (2007). | [
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RITA W. GRUBER, Chief Judge
On January 10, 2018, appellant James Moore, Jr., was charged in the Lafayette County Circuit Court with aggravated robbery and aggravated assault, class Y and D felonies respectively. Appellant filed a motion to transfer his case to the juvenile division of circuit court on the basis that he was seventeen years old at the time of the alleged offenses. The circuit court denied the motion, and a timely notice of appeal followed. Appellant argues that the circuit court's denial of his motion to transfer is clearly erroneous. We disagree and affirm.
The factual issues, as appellant points out in his brief, are not in dispute. On December 20, 2017, appellant went to the home of the victim, Annie Mae Briggs, intending to get money from her in a robbery. At the hearing on April 26, 2018, Jeff Black, chief of police in Stamps, testified that he investigated the incident. He stated that Ms. Briggs is a seventy-four-year-old woman who is severely diabetic, an amputee, and in a wheelchair. She sells snacks, candy, and drinks out of her home and has done so for the past forty to fifty years. Ms. Briggs wears a money bag tied around her waist because she is in a wheelchair. She told Chief Black that some juveniles came to her home that evening, and one purchased chips. All the juveniles left except appellant, who stayed in the house and asked Ms. Briggs if she had change. Appellant then grabbed the money bag to try to rip it loose, and when it did not come loose, he began to cut the bag off with a knife. As a result, Ms. Briggs's hand was cut, requiring stitches from "the tip of her [pinky] finger back down to nearly her wrist."
Chief Black testified that appellant was cooperative when he and his father came to Chief Black's office after being contacted. Appellant was informed of his Miranda rights, and he signed the rights form along with his father. Appellant admitted having been at the residence and taking $41 from the victim, but he denied any cutting. When asked if there was any indication from appellant's statement that it was a planned event, Chief Black testified as follows:
I took that it was a plan because [appellant] mentioned that he was not happy being there in Stamps. He had been sent up there from, I believe, the Dallas area, possibly by his mom. I'm not real sure about that. But [appellant] was wanting to get enough money to get a bus ride and go back to the Dallas area.
Chief Black was not aware of anything on appellant's record.
Appellant's mother, Cynthia Moore, testified that appellant had been living in Stamps for six months to a year at the time of the incident. She stated that there was no particular reason she sent appellant to live with his father. She stated that appellant had not been in any criminal trouble and only had "regular trouble" at school, such as "detention or things of that nature." There had been no suspensions or expulsions. When asked if she knew why appellant wanted to be back in Dallas, Moore guessed he missed his family as most of his family is in Dallas.
Following the hearing, the circuit court entered a May 3, 2018 order denying the motion to transfer.
In juvenile-transfer proceedings, the court shall order the case transferred to another division of circuit court only upon a finding by clear and convincing evidence that the case should be transferred. Ark. Code Ann. § 9-27-318(h)(2) (Repl. 2015). The movant bears the burden of proving the necessity of transfer from the criminal to the juvenile division of circuit court. Sharp v. State , 2018 Ark. App. 255, at 8, 548 S.W.3d 846, 851. Clear and convincing evidence is proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. Id.
Pursuant to Arkansas Code Annotated section 9-27-318(g), the circuit court must consider the following ten factors at the transfer hearing:
(1) The seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court;
(2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
(3) Whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted;
(4) The culpability of the juvenile, including the level of planning and participation in the alleged offense;
(5) The previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence;
(6) The sophistication or maturity of the juvenile as determined by consideration of the juvenile's home, environment, emotional attitude, pattern of living, or desire to be treated as an adult;
(7) Whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile before the expiration of the juvenile's twenty-first birthday;
(8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense;
(9) Written reports and other materials relating to the juvenile's mental, physical, educational, and social history; and
(10) Any other factors deemed relevant by the judge.
Ark. Code Ann. § 9-27-318(g) (Repl. 2015). The circuit court shall make written findings on all the factors set forth above. Ark. Code Ann. § 9-27-318(h)(1). However, there is no requirement that proof be introduced against the juvenile on each factor, and the circuit court is not obligated to give equal weight to each of these factors in determining whether a case should be transferred. Kiser v. State , 2016 Ark. App. 198, 487 S.W.3d 374. The denial of a motion to transfer will not be reversed on appeal unless it is clearly erroneous. Nichols v. State , 2015 Ark. App. 397, 466 S.W.3d 431. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Id.
In this case, the circuit court made findings regarding each factor listed in section 9-27-318(g). The order denying the transfer provided in part:
This Court finds that the acts alleged were committed in an aggressive, violent, premeditated and willful manner and that the seriousness of the offense requires that jurisdiction remain in the criminal division of the circuit court. The Court has especially considered the evidence that the violence was inflicted upon a person unable to defend herself and given it greater weight in its determination. The Court believes that the Defendant followed a well thought out plan to commit the robbery to get money to return to Dallas, Texas and he was the only participant. The Court finds that the allegations of the state strongly indicate that the protection of society requires the prosecution of this offense in criminal division of circuit court and especially the callous nature of the crime. The Court believes that factors (1), (2), (3) and (4) have been established that this case should remain in the jurisdiction of the criminal division of the circuit court and to deny a transfer to juvenile court.
Recognizing that our supreme court has repeatedly stated that a juvenile may be tried as an adult solely because of the serious and violent nature of the offense, see, e.g. , C.B. v. State , 2012 Ark. 220, 406 S.W.3d 796, the court reasoned:
The facts in this case show that the defendant not only committed Aggravated Robbery, a class Y felony, he did so with extreme indifference to the value of human life as evidenced by the Aggravated Assault allegation and testimony supporting that allegation. As stated above, the use of the weapon against an elderly disabled woman could have resulted in death or more serious physical injury. The Court believes that the countervailing factors show by clear and convincing evidence that the case should be retained in the criminal division of the circuit court.
For reversal, appellant alleges deficiencies in the circuit court's consideration of the factors. First, although appellant acknowledges the seriousness of the offense, he contends that "there was no evidence to support a conclusion that society needed to be protected from Appellant beyond which Juvenile Court could handle." However, as set out in the order quoted above, the circuit court found that the allegations of the State and "especially the callous nature of the crime" required prosecution in the criminal division.
Next, appellant argues that although the second factor appears to go against appellant, "as attempting to pull a money bag from someone's waist would qualify as aggressive and willful," the proof below "was that the knife was not used as a weapon as much as it was a cutting tool." The circuit court was required to consider whether the offense was committed in an aggressive or willful manner. See Ark. Code Ann. § 9-27-318(g)(2). Appellant concedes that he had a knife. In his attempt to cut the money bag loose, he cut Ms. Briggs to the extent she needed stitches. This supports the court's finding that appellant committed the offense in an aggressive and willful manner. Appellant recognizes that the third factor was established because the offense was against a person.
Appellant argues that the evidence of the fourth factor was divided. While recognizing that he was culpable and acting alone, appellant argues that the description of the crime did not indicate any level of planning. Appellant contends that the testimony at the hearing did not support the conclusion that he "followed a well thought out plan to get the money to return to Dallas," but instead indicates little planning. Contrary to appellant's contention, Chief Black testified that he thought appellant had a plan because he was unhappy in Stamps and wanted to get enough money to buy a bus ticket to Dallas. Thus, there was evidence to support the circuit court's conclusion.
Appellant argues that the fifth factor weighs in his favor because there was no evidence of prior offenses. On the sixth factor, the court found that appellant's statement to the officers and the statements of his mother "show that he does not lack maturity or sophistication commensurate with his age." While the court acknowledged there was no testimony about any "detrimental behavior at home environment, his emotional attitude or pattern of living prior to the crime or unusual behavior at school either in Stamps or Dallas," appellant takes issue with the circuit court's statement that it thought there was a reason appellant was sent from Dallas to Stamps and that appellant's mother was withholding information regarding his behavior and previous trouble. This was a matter of credibility, which is an issue for the fact-finder. R.M.W. v. State , 375 Ark. 1, 289 S.W.3d 46 (2008). On appeal, we have no means to assess witness credibility and may not act as the finder of fact. Id.
Appellant recognizes there was no testimony on the seventh factor but contends that the circuit court erred in "its calculation of how long Appellant would receive rehabilitative services." As the State notes, appellant mischaracterizes the court's order. Here, the circuit court's order provided that appellant would be eighteen years old in approximately six months and that from past experience, the court "did not believe there [would be] sufficient time for any rehabilitation to be effective" if the case were transferred. The circuit court expressly noted that with no evidence presented on the issue, it could not give any weight to this factor for either party. As for the eighth factor, appellant states that it weighs in his favor because he acted alone. Finally, appellant notes that there were no records presented on the ninth factor pertaining to written reports and other materials relating to his mental, physical, educational, and social history, and no other factors were considered.
While appellant's individual arguments are discussed above, what appellant asks is for this court to reweigh the factors considered by the circuit court. As the moving party, appellant had the burden of proving by clear and convincing evidence that the case should be transferred to the juvenile division of circuit court. Magana-Galdamez v. State , 104 Ark. App. 280, 291 S.W.3d 203 (2009). Here, the circuit court heard the evidence, weighed it, reached its decision, and enumerated its conclusions in a written order. The circuit court properly considered the evidence on the factors as required by the statute, and it was free to use its discretion in the weight afforded to each factor. Austin v. State , 2017 Ark. App. 114, at 4-5, 515 S.W.3d 633, 636. The circuit court is not required to give equal weight to each of the statutory factors; it can rely on any of the factors as long as it considered and made written findings with regard to all the factors. Id. As set out previously, the circuit court placed most weight on factors (1), (2), (3), and (4) in denying the motion to transfer to juvenile court. After reviewing the evidence, we are not left with a firm and definite conviction that the circuit court made a mistake in denying appellant's motion to transfer the case to the juvenile division of circuit court. Accordingly, we affirm.
Affirmed.
Glover and Murphy, JJ., agree.
While the testimony did not indicate the cutting was done with a knife, based on appellant's own arguments, he indicates a knife was used. | [
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ROBERT J. GLADWIN, Judge
After a jury trial in the Johnson County Circuit Court, Jacob Robert Dolson was convicted on three counts of rape and sentenced to forty years' imprisonment. On appeal, Dolson contends that the circuit court abused its discretion by admitting evidence in violation of Arkansas Rules of Evidence 403 and 404 (2017). We affirm.
I. Facts
In 2015, Dolson lived with Trinity Barnes, their child, and her three other children. In June, a maintenance man reported unsanitary conditions in the house where Dolson, Barnes, and the children were living. He also reported that he had witnessed children locked in a bedroom in the house. Both Dolson and Barnes admitted to police that they had locked the children in the room for punishment. The Arkansas Department of Human Services (DHS) removed the children from the residence. While they were in foster care, two of Barnes's children disclosed to foster parents the sexual and physical abuse by Dolson that they had suffered. Dolson was charged on September 14, 2016, with four counts of rape, Ark. Code Ann. § 5-14-103(a)(3)(A) (Repl. 2013).
Before the jury trial held on August 11, 2017, the State filed a notice of intent to use Rule 404(b) evidence of the children's having been locked inside a bedroom that contained a urine-soaked mattress. Testimony would also include that the bedroom windows had been closed; the air conditioning was turned off; and the children had been taken into DHS custody when the deplorable conditions of the home were discovered. The State alleged that the evidence of the home's condition at the time the sexual abuse occurred would establish Dolson's complete disregard for the well-being of the children. The State relied on Lindsey v. State , 319 Ark. 132, 139, 890 S.W.2d 584, 588 (1994), wherein evidence that established an intentional pattern of abusive behavior was admitted.
Dolson filed a contradicting motion in limine to exclude the Rule 404(b) evidence. He argued that he and Barnes had pled guilty to a misdemeanor in connection with the children's being taken into DHS custody on June 22, 2015. He claimed that introduction of the evidence would violate Rule 404(a) because it would only tend to prove bad character. Dolson further argued that the evidence would violate Rule 403 because it was not sufficiently probative to outweigh the unfair prejudice to him. Finally, Dolson argued that Lindsey , supra , was distinguishable from his case.
At the pretrial hearing on these motions, Dolson's counsel argued that the bad conditions in the house were not relevant. He claimed that the evidence would serve only to inflame the jury and that it had nothing to do with the elements of rape that had to be proved. Defense counsel urged that the dissent in Lindsey, supra , should be followed and that evidence of the "nasty" house would not help the jury determine whether rape of the children had occurred. Defense counsel also claimed that Lindsey could be distinguished because Dolson was not the father of the alleged victims, whereas the father had been the perpetrator in Lindsey .
The State responded that Dolson's written statement said, "We lock the children in the room because they're bad." Further, Dolson had indicated in his interview with the sheriff that he had locked the children in a room a couple of times. When questioned by the court about whether the State could establish a pattern, the State responded that it could establish that there were deplorable conditions in the house during the time period that it alleged the sexual abuse had taken place. The circuit court granted the State's motion to allow the evidence. During the trial, witnesses testified regarding the conditions of the house and Dolson's admission that he had locked the children in their room for punishment.
TB testified that he was eight years old and that when he had lived with Dolson and his birth mother, if there was any food and Dolson was there, Dolson "made me do something gross." He said that Dolson "touched me with his pee-pee [penis] in my mouth, every morning." TB said, "I can tell you that he was standing up, and I would be with him in my sisters' room, after they moved in with me. I remember that he put his hand on my head and push[ed] it against himself." TB identified Dolson in the courtroom.
Seven-year-old EB testified that Dolson had touched her "where it wasn't okay." She asked the prosecutor to show her the anatomically correct picture of a boy. She said,
I can show you that he touched me with his pee-pee when my clothes were off. I saw him put something on his pee-pee. I saw a plastic, yucky thing. I can't tell you why he did that, he did not tell me, but he would always put that on. I saw something come out of his pee-pee. Yes, I agree that it was like gel or some white juice. I can tell you I saw that happen once. I would be laying down on his bed and he would put his pee-pee in my bottom. I did have to put part of my body on his pee-pee, my mouth. I say it happened a lot of times. I am telling you that he put the plastic thing on his pee-pee when he put it in my bottom, and I am telling you that he did not put on the plastic thing when he put it in my mouth.
Ruth Dudding, a nurse at the Child Safety Center in Fort Smith, testified that she had conducted a forensic examination of TB and EB and found no evidence of acute or penetrating trauma. She said that the majority of children who have been sexually abused do not have definitive findings or have injury to the anal or genital area.
Dolson moved for a directed verdict at the conclusion of the State's evidence and renewed his motion concerning the State's use of evidence under Rule 404(b). The circuit court denied the motions.
Dolson's mother testified that she believed TB was not truthful. She said that after Dolson and Barnes had moved, she would pick up the children for church and see that their house was a mess. She stated that a messy house does not make a sex offender. Andrew Dolson stated that he is Dolson's younger brother and that he had lived next door to Dolson in June 2015. He said that TB was not truthful.
Appellant Dolson testified that he worked both the day and night shifts for Walmart Neighborhood Market. He said that his schedule had kept him away from the house a lot when the children had been there. He said that the house got "so nasty" because he and Barnes had split the responsibilities and that Barnes had been on drugs. He said that he had a "hard" relationship with TB, giving as an example a time when he had scratched TB while sword fighting with him. He said that TB told his teacher about it, and a DHS worker came to their house to investigate. Dolson denied the sexual-abuse allegations. He said that he would punish the children by putting them in a corner or by locking them in their bedroom for five minutes at a time. He said that he had lied to law enforcement when he told them he had routinely locked the children in their room. He said that he was not the children's father, that he had not married their mother, and he had not adopted them or obtained a guardianship over them. He testified that he was not aware of any legal duty he owed the children but said he had financially supported them. He said that he and Barnes had locked the cabinets because the children were wasting all the food. He also said that they had begun locking the children in the room in April 2015. He claimed that TB had been in trouble a lot because he lied and that TB and EB were not truthful.
Dolson renewed his motion for directed verdict and his objection to the Rule 404(b) evidence. He asked for a jury instruction related to that evidence. The circuit court granted the instruction and denied the motion for directed verdict. The instruction was read to the jury as follows:
Members of the jury, you are instructed that evidence of other wrongs or acts of Jacob Dolson may not be considered by you to prove the character of the Defendant-in order to show-may not be considered by you to prove the character of the Defendant, Jacob Dolson, in order to show that he acted in conformity therewith. This evidence is not to be considered to establish a particular trait of character that he may have, nor is it to be considered to show that he may have acted similarly or accordingly on the day of the incident. The evidence is merely offered as evidence of an intentional pattern of abusive behavior. Whether any other alleged crimes, wrongs, or acts have been committed is for you to determine.
The jury found Dolson guilty on three counts of rape and recommended sentences of forty years on each count to run concurrently. The circuit court imposed the sentence recommended by the jury. This appeal timely followed.
II. Standard of Review
This court considers whether a circuit court has committed a manifest abuse of discretion when reviewing issues that turn on Rules 403 and 404 as follows:
Rule 404(b) of the Arkansas Rules of Evidence provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith, but it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Thus, there is a general rule excluding evidence of a defendant's prior acts, but the rule also provides an exemplary, but not exhaustive, list of exceptions to that rule. Hamm v. State , 365 Ark. 647, 232 S.W.3d 463 (2006). Evidence is not admissible under Rule 404(b) simply to show a prior bad act. Laswell v. State , 2012 Ark. 201, 404 S.W.3d 818. Rather, the test for admissibility under Rule 404(b) is whether the evidence is independently relevant, which means it must have a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Vance v. State , 2011 Ark. 243, 383 S.W.3d 325.
Pursuant to Rule 403 of the Arkansas Rules of Evidence, "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Evidence offered by the State is often likely to be prejudicial to the accused, but the evidence should not be excluded unless the accused can show that it lacks probative value in view of the risk of unfair prejudice. Chunestudy v. State , 2012 Ark. 222, 408 S.W.3d 55.
The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the circuit court, and we will not reverse absent a showing of manifest abuse of discretion. Dimas-Martinez v. State , 2011 Ark. 515, 385 S.W.3d 238. Likewise, the balancing mandated by Rule 403 is also a matter left to a circuit court's sound discretion, and an appellate court will not reverse the circuit court's ruling absent a showing of manifest abuse. Croy v. State , 2011 Ark. 284, 383 S.W.3d 367. Abuse of discretion is a high threshold that does not simply require error in the circuit court's decision, but requires that the circuit court act improvidently, thoughtlessly, or without due consideration. Lard v. State , 2014 Ark. 1, 431 S.W.3d 249 ; Craigg v. State , 2012 Ark. 387, 424 S.W.3d 264.
Turner v. State , 2018 Ark. App. 5, at 13-14, 538 S.W.3d 227, 238.
III. Rule 404(b)
With these principles in mind, we turn to Dolson's argument that he did not receive a fair trial because the State was allowed to present evidence that he aided or participated with his live-in girlfriend when her children were left at home alone locked in a filthy room. He contends that the evidence regarding the conditions of the house and room where the children were locked was irrelevant under Arkansas Rules of Evidence 401 and 402. Relevant evidence is evidence having 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 (2017). Evidence that is not relevant is not admissible. Ark. R. Evid. 402 (2017).
Dolson argues that children being locked in a filthy room is evidence of abuse and neglect, but it is marginal to support (1) any element of rape; (2) any inference that could be drawn toward an element of rape; or (3) any assistance in evaluating the other evidence in the case. See John Wesley Hall, Trial Handbook for Arkansas Lawyers § 22:7 (2006). Dolson cites Newman v. State , 327 Ark. 339, 344, 939 S.W.2d 811, 814 (1997), wherein questions to a drug-task-force agent about the generalities of drug arrests and the task force's practices were deemed irrelevant. The supreme court held that a trial court has wide latitude to impose reasonable limits on cross-examination based on concerns about confusion of issues or interrogation that is only marginally relevant. Id. Dolson argues that the evidence presented by the State regarding the conditions of the house and locking the children in a room was marginally relevant to the charges against him.
Dolson contends that this same evidence only served to put him on trial for being a bad person because he was involved in the mistreatment of his girlfriend's children and that to allow the evidence was a violation of Rule 404(a) and (b). He cites Akins v. State , 330 Ark. 228, 955 S.W.2d 483 (1997), wherein the Arkansas Supreme Court held that evidence of a prior rape was insufficiently similar to the rape with which the defendant was charged and it should not have been admitted. Dolson argues that to an unacceptable extent, he faced trial for the uncharged misdemeanor offense of endangering the welfare of a minor, which already had been addressed at the district court. He claims that two witnesses at trial testified exclusively and in detail about the conditions in the room in which the children sometimes had been confined. He claims that roughly one-third of the trial transcript is devoted to testimony on the conditions of the room. He argues that the State expended considerable effort to create a persisting image in the jurors' minds about a misdemeanor offense to which he had already pleaded guilty and that this was in violation of Rule 404(b).
Dolson contends that the circuit court erroneously permitted the State to obtain a conviction for bad character. He claims that the State conveyed the message that only a person of bad character would permit children to have been placed in the conditions that were described, and a bad person like this one is more likely a rapist. Dolson cites the dissent in Lindsey , supra , in which Justice Newbern stated,
To say that Mr. Lindsey was guilty of endangering the health of his child by allowing her to contract trench foot is relevant to the charge that he raped her can only be based upon the contention that it demonstrates he is a bad man, a person of bad character, or a person with a propensity to commit one crime because he has committed another.... [T]hat is what the rule [404(b) ] disallows.
Lindsey , 319 Ark. at 143, 890 S.W.2d at 590 (Newbern, J., dissenting).
Dolson attempts to distinguish Lindsey , where the supreme court held that a defendant's neglect of his daughter, who developed the medical condition of trench foot, was relevant in his trial for raping his daughter. He contends that the court noted that the parent/child relationship existed between the malefactor and the victim. Lindsey , 319 Ark. at 140, 890 S.W.2d at 588. The defendant in Lindsey also claimed that he was a fit parent. Id. at 140-41, 890 S.W.2d at 589. Dolson argues here that he was not the parent of his accusers and there was no testimony that either of the child witnesses developed a serious medical condition. He argues that their mother, not he, owed the children a parent's duties. Nevertheless, he testified that he had contributed to their financial support, often working double shifts at his job.
Dolson also attempts to distinguish Clem v. State , 351 Ark. 112, 90 S.W.3d 428 (2002), wherein the defendant was convicted of rape, and the Arkansas Supreme Court upheld the conviction, holding that there had been no abuse of discretion by admitting photographs and testimony that depicted deplorable living conditions and that sexually explicit posters were displayed in the home. Dolson contends that the medical signs of trauma in the minor victims in Clem distinguishes it from the instant case, in which forensic examinations yielded no medical signs of trauma.
We hold that Clem and Lindsey are squarely on point and permit admission of the evidence under Rule 404(b). Evidence of squalid living conditions in which a rape defendant kept his child victims is admissible under Rule 404(b) because such evidence demonstrates a pattern of intentional neglect of the children's well-being. See Clem , supra ; Lindsey, supra.
In Lindsey , the court explained:
We have no hesitancy in concluding that permitting an eight-year-old child to develop a severe case of trench foot is a form of neglect by the parent and that the neglect of a child's physical needs is necessarily a form of abuse. Hence, we believe that a father's perpetration of child abuse by neglect is relevant to a case of sexual abuse against that same child, when both forms of abuse are occurring at the same time. Such evidence is pertinent in that it establishes an intentional pattern of abusive behavior on the part of the parent toward the child-the first by neglecting her basic hygienic needs and the second by soliciting her to engage in sexual activity. A contemptible lack of caring for a child's essential healthcare needs easily intertwines with sexual abuse of the child. Both forms of abuse are intentional and evidence lack of care, concern, and respect for the child's well-being.
Lindsey , 319 Ark. at 139, 890 S.W.2d at 588. The plurality opinion's analysis in Lindsey was adopted in Clem , where the supreme court held,
The reasoning outlined in Lindsey is applicable to the case now before us. We conclude that the sexually explicit posters on the wall and the deplorable living conditions of the trailer, including a room crawling with roaches and a bed covered in feces, was relevant evidence because it established a pattern by appellant of intentionally neglecting his children's well-being. We further conclude that this evidence establishing an intentional neglect of his children's well-being was relevant to the consideration of whether appellant sexually abused his children. Further, we conclude that the relevant evidence was more probative than prejudicial. Accordingly, the trial court properly admitted the evidence.
Clem , 351 Ark. at 123, 90 S.W.3d at 434.
The circuit court did not abuse its discretion by admitting the evidence of the conditions of the home where Dolson had lived with the children. The neglect occurred during the same time period that he was committing multiple rapes against each child. As in both Clem and Lindsey , the evidence demonstrated an established pattern of Dolson's intentional neglect of his victims' well-being. Dolson admitted that he and Barnes had enforced their practice of trapping the children in a room since April 2015, which was three months before the police discovered the abuse. The evidence that Dolson raped TB in exchange for food and that the children were kept in a locked room more strongly links the Rule 404(b) evidence to the charged crime in this case than in Clem and Lindsey . Further, the cases are not distinguishable from the instant case because Dolson is not the children's father. The record shows that Dolson acted consistently with a person who considered himself to be in a familial relationship with the children.
IV. Rule 403
Dolson argues that after the circuit court had made its Rule 404(b) determination, it was mandatory for the court to scrutinize the admissibility of other-bad-acts evidence under the unfair prejudice portion of Rule 403. See Price v. State , 268 Ark. 535, 539, 597 S.W.2d 598, 600 (1980) (holding that because an objection to the admission of other-crimes evidence inherently raises an issue of prejudice, it is mandatory for the circuit court to also review the objections under the evidentiary standards prescribed by Rule 403 ). He argues that the circuit court abused its discretion by failing to balance the probative value of the evidence against unfair prejudice to him.
Dolson contends that he raised the Rule 403 issue in his motion in limine and again during the colloquy between the circuit court, the State, and defense counsel. He argues that the circuit court failed to mention Rule 403"explicitly or by implication" and that the circuit court did not mention balancing probative value against unfair prejudice as required. Dolson claims that the circuit court focused solely on the relevance issues embodied in Rule 404(b).
We hold that the issue is not preserved for appellate review. It was Dolson's burden to obtain a ruling on Rule 403. As Dolson argues, the circuit court failed to mention Rule 403 and did not mention balancing probative value against unfair prejudice. Because Dolson did not obtain a ruling, the point is not preserved. See, e.g. , Hortenberry v. State , 2017 Ark. 261, 526 S.W.3d 840.
Affirmed.
Abramson and Murphy, JJ., agree.
Dolson had also been charged with one count of sexual indecency with a child, Ark. Code Ann. § 5-14-110(a)(1)(B) (Repl. 2013). The information was amended on August 9, 2017, to exclude the sexual-indecency charge.
The case was reversed on other grounds, but the supreme court held that if the Rule 404(b) issue had been preserved by proper objection, the evidence of the prior rape should have been excluded. Akins , 330 Ark. at 234, 955 S.W.2d at 486-87. | [
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KENNETH S. HIXSON, Judge
Appellant Charles R. Davis appeals after he was convicted by a Poinsett County Circuit Court jury of one count of possession of a firearm by a certain person which involves the commission of another crime in violation of Arkansas Code Annotated section 5-73-103(c)(1)(B) (Repl. 2016). He was sentenced to serve 240 months' imprisonment to be served consecutively to his separate conviction for manslaughter. On appeal, appellant contends that (1) if his conviction for the underlying crime of manslaughter is reversed on appeal, then we must also reverse his conviction for possession of a firearm by certain persons in commission of that crime, and (2) the trial court abused its discretion in admitting into evidence the manslaughter conviction as proof of the underlying crime in a case charging him of being a felon who possessed a firearm in the commission of a crime. We affirm.
Appellant was arrested and charged with first-degree murder, possession of a firearm by a certain person which involves the commission of another crime (hereafter felon in possession), and as a habitual offender. The felon-in-possession charge was severed, and appellant was convicted of the lesser-included offense of manslaughter and sentenced to serve 120 months' imprisonment. Appellant filed an appeal from that conviction, and we recently affirmed his conviction for manslaughter in case no. CR-17-487. See Davis v. State , 2018 Ark. App. 383, 555 S.W.3d 892.
While his appeal from the manslaughter conviction was still pending, a jury trial was held on the severed felon-in-possession charge. On the day of trial, the State announced that it intended to enter into evidence a copy of the sentencing order from the manslaughter conviction because it was relevant as to whether appellant had used a firearm in the commission of a crime. Appellant's counsel objected, stating, "I was objecting to it as I - we did in the phone conference last night that I think that it's rising out of the same incident so it should not be used." The trial court overruled the objection because "the use of a firearm by a previously convicted felon in the commission of an offense is an element of the Class B felony charge." Therefore, appellant's 1993 felony conviction for second-degree murder and his 2017 conviction for manslaughter were admitted at the beginning of trial without any further objection.
Additionally, the State introduced testimony from law enforcement. Officer Wilbur Hewitt testified that he had responded to a call that shots had been fired at a trailer where appellant was living. After he arrived, Officer Hewitt found Jeff Foster's body inside the trailer; the body was covered in blood and wrapped in a comforter. Appellant immediately claimed that it was an accident and admitted that a .410 shotgun was inside the trailer.
Detective Ron Martin testified that he found the shotgun in the dining room. Detective Martin also interviewed appellant. According to Detective Martin, appellant explained that he and Mr. Foster had been drinking. Appellant had been living alone in the trailer for a couple of weeks. Appellant admitted in the interview that he had used a shotgun that belonged to his cousin to "poke" Mr. Foster in an attempt to make him leave his trailer after Mr. Foster had become obnoxious. Appellant claimed that he did not intend to kill Mr. Foster but that the shotgun was accidentally discharged, and Mr. Foster was shot in the back of his neck and head. The jury found appellant guilty, and appellant was sentenced to serve 240 months' imprisonment to be served consecutively to his conviction for manslaughter. This appeal followed.
On appeal, appellant first argues that if his manslaughter conviction is reversed in his separate appeal case no. CR-17-487, then we must also reverse his felon-in-possession conviction. However, appellant's argument lacks merit because we affirmed his manslaughter conviction. See Davis, supra.
Appellant additionally argues that the trial court abused its discretion in admitting into evidence the manslaughter conviction as proof of the underlying crime in a case charging him of being a felon who possessed a firearm in the commission of a crime. Arkansas Code Annotated section 5-73-103(a) states that it is a crime for a person who has been convicted of a felony to possess or own a firearm. Subsection (c)(1)(B) states that a person who violates this section commits a Class B felony if the person's current possession of a firearm involves the commission of another crime. See also Toombs v. State , 2015 Ark. App. 71, 2015 WL 585587. Appellant specifically argues that the admission of the manslaughter conviction violated the purpose of severance to "promote[ ] a fair determination of the defendant's guilt or innocence of each offense" and therefore was prejudicial.
While it is true that objections need not cite specific rules to be sufficient, it is clear that a specific objection is necessary in order to preserve an issue on appeal. Leach v. State , 2012 Ark. 179, 402 S.W.3d 517. To preserve an argument for appeal, there must be an objection in the trial court that is sufficient to apprise the court of the particular error alleged, and the appellate court will not address arguments raised for the first time on appeal. Id. A party cannot change the grounds for an objection or motion on appeal but is bound by the scope and nature of the arguments made at trial. Id. Here, appellant failed to make the argument he now makes on appeal. Instead, he objected on the grounds that "I think that it's rising out of the same incident so it should not be used." We cannot presume from this ambiguous statement that appellant was arguing that the introduction of the conviction violated "the purpose of severance" and "created a mandatory presumption in [the jurors'] minds that the State had proven the [involved-in-the-commission-of-another-crime] element." As such, that issue is not preserved for appeal, and we do not address it.
Affirmed.
Glover and Vaught, JJ., agree. | [
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JOHN DAN KEMP, Chief Justice
Petitioner Jesse Goins brings this petition to reinvest jurisdiction in the trial court so that he may file a petition for writ of error coram nobis in his criminal case and a motion for appointment of counsel. In the petition, Goins contends that the trial court and the State violated Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose that a juror was biased. As Goins's claim does not establish a ground for the writ, the petition is denied. The denial of the petition renders the motion for appointment of counsel moot.
I. Nature of the Writ
The petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Newman v. State , 2009 Ark. 539, 354 S.W.3d 61. A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore , 341 Ark. 397, 17 S.W.3d 87 (2000). Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Green v. State , 2016 Ark. 386, 502 S.W.3d 524. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Newman , 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts v. State , 2013 Ark. 56, 425 S.W.3d 771.
II. Grounds for the Writ
The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State , 2012 Ark. 177, 403 S.W.3d 38.
III. Background
In 1994, Goins and his codefendant Arthur Davis were found guilty by a jury of the aggravated robbery of a convenience store, and both were sentenced to terms of life imprisonment. We affirmed. Goins v. State , 318 Ark. 689, 890 S.W.2d 602 (1995). The evidence adduced at trial established that two men, Arthur Davis and Lamar Davis, entered the store, threatened the manager of the store with a large lock-blade knife--slightly cutting her throat--and threatened her with a handgun. The two men took a bank bag containing cash from the register. They were attempting to bind the manager with duct tape when a car driven by Barry Cooper and with his father, William Cooper, as a passenger, drove up to the gas pumps outside. Arthur Davis and Lamar Davis immediately ran from the store to an old blue car waiting in the parking lot with Goins in the driver's seat. The manager took down the license-plate number of the car as it drove away and asked Barry Cooper to call the police. Goins, Arthur Davis, and Lamar Davis were later apprehended in the car, which contained a large lock-blade knife, a handgun, and the bank bag taken from the store. While the manager was not able to identify Goins at trial as being the driver of the car, she testified that he had been in the store once before and that she remembered his face. Barry Cooper testified that he did not see the face of the driver. On direct appeal, this court held that the State sufficiently proved Goins's presence as the driver of the car on the day of the robbery.
IV. Claim of a Brady Violation
To establish a Brady violation, the petitioner must satisfy three elements: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; (3) prejudice must have ensued. Howard , 2012 Ark. 177, 403 S.W.3d 38. The mere fact that a petitioner alleges a Brady violation is not sufficient to provide a basis for error coram nobis relief. Wallace v. State , 2018 Ark. 164, 545 S.W.3d 767 ; see also Penn v. State , 282 Ark. 571, 670 S.W.2d 426 (1984) (a mere naked allegation that a constitutional right has been invaded will not suffice to warrant coram nobis relief).
The Brady violation alleged by Goins in his petition pertains to juror Lisa Cooper. Before voir dire of the jury panel had begun, the trial court inquired of the panel of potential jurors if there was anyone who had a reason to believe that he or she should not sit on the jury. Lisa Cooper came forward and a bench conference was held between her and the court out of the hearing of the courtroom but with all counsel present, and she returned to the jury box. During voir dire, Lisa Cooper did not respond when the deputy prosecutor inquired whether any person on the panel knew of any reason he or she could not give both the State and the defense a fair trial. Arthur Davis's attorney questioned Lisa Cooper concerning whether she would judge the testimony of Barry Cooper, who would be called to testify as a witness for the State, in the same way she would judge the other witnesses. Lisa answered that she could do so and that she would not believe Barry's testimony if she did not think that his testimony was true. When Goins's attorney inquired if anyone on the panel had read about the case, Lisa Cooper answered that she had read about it in the local newspaper.
Goins contends as grounds for the writ that neither the trial court nor the State revealed to the defense that Lisa was a blood relative of Barry to the "first degree of consanguinity" and that her bias denied him a fair trial. He asserts further that she had acquired knowledge of the robbery from Barry and William Cooper and had formed her belief of his guilt from that knowledge. As support for the claim that he was prejudiced by the Brady violation, Goins has appended to his petition two notarized statements signed by Lisa.
In the first statement, dated January 6, 2000, Lisa avers only that she was a juror "in 1994 where my first cousin Barry Cooper was a witness." In the second statement, dated January 19, 2018, she states that she asked the trial court to remove her from the jury panel because she "may be bias with my decision" because she was related to Barry and to her uncle "Clayton Cooper" and because she lived in the town where the robbery occurred. While the transcript of the bench conference does not appear in the trial record lodged on direct appeal, Lisa's statements set out the information that Lisa imparted to the court and counsel in the discussion at the bench.
Goins has not established a ground to reinvest jurisdiction in the trial court to consider a coram nobis petition. First, when Lisa spoke with the trial court about her possible bias, the discussion was in the presence of the prosecution and the defense. Thus, the relationship between Lisa and witness Barry was known at the time of trial, and any issue arising from the relationship could have been raised and settled at that time. Goins did not meet his threshold burden of demonstrating a fundamental error of fact extrinsic to the record that was concealed from the defense. See Williams v. State , 2017 Ark. 313, 530 S.W.3d 844 (Petitioner failed to demonstrate a Brady violation because he did not show that some fact was hidden from the defense.).
Moreover, even if the relationship between Lisa and Barry had not been known before Goins's trial began, in a coram nobis proceeding, the court must weigh the significance of the information that was alleged to have been concealed from the defense against the totality of the evidence to determine if the hidden information or evidence at issue would have been such as to have prevented rendition of the judgment had the existence of that material been known at the time of trial. Here, Barry did not identify Goins as being the driver of the car, and there was sufficient evidence to establish Goins's guilt if Barry had not testified for the State. See Carter v. State , 2016 Ark. 448, 506 S.W.3d 823 (holding that the totality of the evidence against the petitioner for coram nobis relief was such that the information allegedly withheld by the State from the defense would not have changed the outcome of the trial had it been known).
Petition denied; motion moot.
In addition to setting out his claim for the writ in his petition, Goins has also appended to the petition filed here the petition he desires to file in the trial court. The basis for the petition is the same in both, and in the interest of judicial economy, we consider the petition intended for the trial court as part of the petition for coram nobis relief that is before us. Grady v. State , 2017 Ark. 245, 525 S.W.3d 1. | [
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ROBIN F. WYNNE, Associate Justice
Appellant Dra'Kease D. Hall appeals from the denial by the trial court of a pro se petition for a writ of error coram nobis. In January 2012, Hall pled guilty to first-degree murder and criminal attempt to commit first-degree murder and was sentenced to an aggregate term of 600 months' imprisonment.
In his petition for coram nobis relief filed in the trial court, Hall alleged that the prosecutor and an investigator had coerced two witnesses to implicate Hall in the crimes. Hall attached to his pro se petition affidavits executed by Terrance Lang and Jasper Goodwin in support of his allegation. In their affidavits, both Lang and Goodwin recanted what their testimony would have been if Hall had gone to trial and stated that they had been coerced into implicating Hall with threats of being subjected to the death penalty. Furthermore, both Lang and Goodwin now exonerate Hall in the crimes for which he has been convicted.
In this appeal, Hall raises the same claim of witness coercion raised below, but he adds the following allegations: (1) that the prosecutor violated Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose a plea deal offered to Lang in exchange for Lang's testimony; (2) that his guilty plea was founded on lies and deception resulting from counsel's failure to conduct a reasonable investigation by interviewing Lang and Goodwin; (3) that counsel coerced Hall into pleading guilty by informing him that Lang and Goodwin would testify on behalf of the State in exchange for leniency. For the reasons set forth below, we affirm the trial court's order denying Hall's petition.
The standard of review of an order entered by the trial court on a petition for writ of error coram nobis is whether the trial court abused its discretion in granting or denying the writ. Smith v. State , 2017 Ark. 236, 523 S.W.3d 354, reh'g denied (Sept. 14, 2017). An abuse of discretion occurs when the court acts arbitrarily or groundlessly. Nelson v. State , 2014 Ark. 91, 431 S.W.3d 852. The trial court's findings of fact on which it bases its decision to grant or deny the petition for writ of error coram nobis will not be reversed on appeal unless they are clearly erroneous or clearly against the preponderance of the evidence. Smith , 2017 Ark. 236, 523 S.W.3d 354. There is no abuse of discretion in the denial of error coram nobis relief when the claims in the petition were groundless. Id. (citing Nelson , 2014 Ark. 91, 431 S.W.3d 852 ).
We first note that Hall has raised allegations on appeal that were not presented to the trial court in his coram nobis petition. This court does not address new arguments raised for the first time on appeal; nor do we consider factual substantiation added to bolster the allegations made below. Id. (citing Stover v. State , 2017 Ark. 66, 511 S.W.3d 333 ). When reviewing the trial court's ruling on a coram nobis petition on appeal, the appellant is limited to the scope and nature of the arguments that he or she made below that were considered by the trial court in rendering its ruling. Id.
A writ of error coram nobis is an extraordinarily rare remedy. Id. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition had it been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Id. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Id. The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. A writ of error coram nobis is available to address certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Id. Error coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id.
Hall's allegations that Lang and Goodwin were coerced into providing statements implicating Hall in the commission of the crimes do not fit within the recognized categories for coram nobis relief and do not otherwise provide a basis for the issuance of this extraordinary writ. First, Hall does not allege that his guilty plea was the result of fear, duress, or threats of mob violence as previously recognized by this court as grounds for a finding of coercion sufficient to set aside a guilty plea. Green v. State , 2016 Ark. 386, 502 S.W.3d 524. Instead, Hall's petition and the attached affidavits appear to attack his guilty plea on the basis that it was not voluntarily and intelligently given but was the result of an erroneous belief that Lang and Goodwin had readily agreed to testify for the State. Any claim that a guilty plea was not entered intelligently and voluntarily should have been brought pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2017) and not in a petition for writ of error coram nobis. Smith , 2017 Ark. 236, 523 S.W.3d 354 ; see also Nelson , 2014 Ark. 91, 431 S.W.3d 852 (Error coram nobis proceedings are not a substitute for proceeding under Rule 37.1 to challenge the validity of a guilty plea, nor are the two proceedings interchangeable.).
Second, as stated above, to merit coram nobis relief, the petitioner must show a fundamental error of fact extrinsic to the record that would have prevented rendition of the judgment had it been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Smith , 2017 Ark. 236, 523 S.W.3d 354. Here, Hall had attached two affidavits to the petition filed below that were executed by Lang and Goodwin alleging that they were coerced into implicating Hall and affirmatively stating that Hall took no part in the crimes. On appeal, Hall argues that his guilty plea was involuntary because counsel failed to interview these two witnesses to determine that their statements were the result of coercion and were therefore unreliable. By Hall's own admission, the facts alleged in Lang's and Goodwin's affidavits could have been discovered before trial. To warrant coram nobis relief, the defendant must be unaware of the fact at the time of trial and could not have discovered the fact in the exercise of due diligence.
See Echols v. State , 354 Ark. 414, 125 S.W.3d 153 (2003). Hall does not establish the existence of facts that could not have been discovered at the time of trial. See Munnerlyn v. State , 2018 Ark. 161, 545 S.W.3d 207.
Finally, it is well settled that a claim of recanted testimony, standing alone, is not cognizable in an error coram nobis proceeding. Smith v. State , 200 Ark. 767, 140 S.W.2d 675 (1940) (holding that the writ was not available to afford relief on the ground that the principal witness against the accused had recanted and that others since the accused's conviction had confessed to the crime). This is so because a writ of error coram nobis may not be used to contradict any fact already adjudicated. Id. Here, Hall is attempting to use the recanted statements of Lang and Goodwin to demonstrate that he is innocent of the crimes to which he pled guilty. By pleading guilty to the crimes, Hall waived any claim that he was not guilty of the charges. Smith , 2017 Ark. 236, 523 S.W.3d 354 (citing Beverage v. State , 2015 Ark. 112, 458 S.W.3d 243 ). Hall's guilt has been adjudicated, and Hall cannot now use affidavits to contradict his own admission of guilt. To the extent that Hall's allegations and the attached affidavits challenge the reliability of Lang and Goodwin's anticipated trial testimony as being insufficient to sustain a finding of Hall's guilt, such challenges to the sufficiency of the evidence are not cognizable in coram nobis proceedings. Jackson v. State , 2017 Ark. 195, 520 S.W.3d 242. In view of the above, the trial court did not abuse its discretion when it denied Hall's petition for a writ of error coram nobis.
Affirmed.
Hart, J., dissents.
I dissent; the circuit court should have held a hearing on Hall's petition for a writ of error coram nobis, as established by the affidavits attached to Hall's petition. Terrance Lang's affidavit provides that "[the prosecutor] advise [sic] me [Lang] if I didn't say that Dra'kease Hall and Jasper Goodwin was with me when the incident accord [sic] on July 11th, 2010, that they was going to kill me but if I say that Dra'kease Hall and Jasper Goodwin was with me [the prosecutor] will cut me a deal of a lesser plea." Similarly, Jasper Goodwin's affidavit provides as follows:
The statements I made on 9/06/2010 against Dra'kease Hall concerning the incident that took place on 7/11/2010 on Camp Robinson Rd. were false and untrue. I was coerced into making those statements against Dra'kease Hall by [the detective investigating the case], whom [sic] told me that if I didn't help him charge and convict Dra'kease Hall that [the detective] would charge me with these crimes and make sure that I be given the death penalty. I had nothing to do with these crimes and didn't want to end up in prison for crimes I didn't commit. So I did what [the detective] wanted and made false statements against Dra'kease Hall who is innocent of the crimes he is convicted of.
The circuit court's failure to hold a hearing on Hall's petition was reversible error.
The function of the writ of error coram nobis is to secure relief from a judgment rendered while there existed some fact extrinsic to the record that would have prevented its rendition had the fact been known to the circuit court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment.
Penn v. State , 282 Ark. 571, 573-74, 670 S.W.2d 426, 428 (1984). This court has traditionally held that a writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State , 2012 Ark. 177, 403 S.W.3d 38. These categories, however, are not absolute and may be expanded when there is a showing of a procedural gap whereby a petitioner in a particular case would be denied due process of law if a coram nobis proceeding were not allowed to fill the void. See Strawhacker v. State , 2016 Ark. 348, 500 S.W.3d 716 ; see also Williams v. State , 2017 Ark. 26, 510 S.W.3d 747. "In simple terms, this writ is a legal procedure to fill a gap in the legal system-to provide relief that was not available at trial because a fact exists which was not known at that time and relief is not available on appeal because it is not in the record." Penn , 282 Ark. at 573-74, 670 S.W.2d at 428.
Hall's allegations of witness intimidation and prosecutorial misconduct are exactly the sort of circumstances against which the writ of error coram nobis is designed to protect. If Hall's allegations are true, it is dubious to suggest that the circuit court would have accepted Hall's guilty plea under such circumstances (or that Hall would have entered that plea in the first place) had they been presented. The majority's intimations that Hall somehow should have known that the prosecution was surreptitiously engaging in these tactics (according to the allegations) is bizarre and untenable. Accordingly, I would remand for a hearing on Hall's claims to determine their veracity.
Hall's counsel had the right to discover the names of these two key witnesses for the purpose of interviewing them in preparation for trial. See N.D. v. State , 2011 Ark. 282, 383 S.W.3d 396. | [
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BART F. VIRDEN, Judge
Virginia Baker appeals the Craighead County Circuit Court jury's decision that neither party was negligent in the auto collision between herself and Lisa Trevathan. We affirm.
I. Facts
On April 21, 2015, Baker was driving in Jonesboro west on Phillips Drive through the intersection when she and Trevathan, who was traveling north on Caraway Lane, collided. Baker was taken by ambulance to the Northeast Arkansas Baptist Memorial Hospital emergency room where she was treated by Dr. William Baker, who is not related to her. Baker's car was disabled in the accident, and it was towed by Northeast Arkansas Towing. Her car was later released and stored at a lot in Weiner.
On May 16, 2016, Baker filed a complaint in which she alleged that Trevathan ran the red light and struck her car, causing physical injuries and damage to her car. Baker alleged $2500 in damages to her car, loss-of-use damages amounting to $200, and towing and storage expenses of $2,294.63. Trevathan filed an answer on July 1, 2016, denying fault and alleging that Baker was at fault.
On November 3, 2016, Baker filed a motion in limine to exclude, among other things, any evidence regarding prescription medication she may be taking or had taken in the past. Baker filed a second motion in limine in which she argued that evidence relating to her prescription medication was immaterial to this lawsuit because "there is no proof as to any causal connection between medications and her driving ability at the time of the collision." Trevathan responded that evidence regarding recently filled prescriptions should be admitted because, "Plaintiff has asserted that she is required to refill all of her medications as an excuse of why she has bought months of medications, but supposedly has not taken them, which is relevant." Trevathan listed Baker's prescription medications and asserted that "each of these medications were in use at the time of the mishap."
In an amended complaint filed November 14, 2016, Baker alleged that she incurred $15,983.75 in ambulance, hospital, and doctor fees. In her second amended complaint, Baker reported $17,436.75 in medical bills. She also claimed $2500 for property damage and costs.
The court held a hearing on the motions in limine. Baker argued that the prescription-medication testimony and evidence was irrelevant because there was no evidence that she had been impaired while driving. Baker asserted that evidence of any medications she obtained after the accident was irrelevant, and evidence of medication that she had possessed three weeks before the accident did not pertain to her driving ability on the day of the accident. Trevathan responded that she should be allowed to introduce prescription-medication evidence because it showed Baker's inattentive condition at the time of the accident, which caused her to fail to observe the red light.
The circuit court ruled that evidence regarding Baker's prescription medication that had been filled around the time of the accident was admissible because it was relevant to her state of mind, her reflexes, and her driving ability. The court excluded any evidence relating to prescriptions that had not been filled or that were "remote in time."
The trial was held on December 5, 2016. Jason Edison, a paramedic called to the scene of the accident, testified that in his written report he had noted that Baker had been alert and oriented and that she had complained of neck and back pain and shortness of breath. Edison recounted that there had been no change in Baker's mental status during the twenty-one minutes Edison attended to her, and he did not recall that she had appeared to be under the influence of any substance.
Dr. Baker offered the following relevant testimony: When he examined Baker after the accident, he had not noticed any slurred speech or any neurological deficit, and he did not remember thinking that she was under the influence of drugs or alcohol. He said that it is normal to be upset after a traumatic event, and if a patient is unable to recall his or her medications, a staff member calls the patient's pharmacy to get his or her current prescriptions. He further said that Baker's prescribed medications-Neurontin, Suboxone, Ativan, Klonopin and Soma-can cause drowsiness, and a combination of any of them "could really make you sleepy." The medical records indicate that the treating nurse had documented that Baker had been adamant that she had not taken Suboxone, Soma, Ativan, Klonopin, or trazodone that day. There had been nothing about Baker that suggested she might have had trouble driving, and Dr. Baker had not observed any impairment or sleepiness.
Baker also testified at the trial. She stated that immediately before the accident, she had been talking to her son and had not noticed that the light had turned green. Baker heard a car horn sound, and her son told her that the light was green. Baker explained that she proceeded through the intersection, and about midway through, Trevathan's car collided with hers.
On cross-examination, Baker testified that she took prescription medication for back pain related to a preexisting condition and for anxiety; however, she had not taken her medications on the morning of the accident. Baker explained that it was her routine to abstain from taking her medication in the mornings and that she never took her medication if she would be driving that day. Baker stated that she regularly filled her prescriptions but that she did not take them as often as prescribed. Baker testified that she kept a diary of the medication she had taken and when she had taken it and that she had taken one Suboxone the night before the accident.
The parties also discussed the omission of the towing and storage charges from Baker's amended complaints. Baker argued that it was simply a mistake and that the last sentence had been inadvertently omitted. Baker also asserted that Arkansas's constitution sets forth that Arkansans are entitled to be compensated for their damages, and the language of the constitution does not limit damages; thus, towing and storage charges should be considered in damage calculations. Trevathan responded that Baker should not be allowed to amend her complaint at trial to include the request for such costs. Trevathan also pointed out that towing and storage costs are not elements of recoverable damages according to the AMI jury instruction. The court denied the admission of evidence and testimony regarding towing and storage costs and ruled that it did so because "I guess for the two reasons I said, the amendment to the complaint, and because I've got the statute, I guess I'll stand on my ruling."
The jury found that neither party had been negligent and did not award damages to either party. Baker's timely notice of appeal followed.
On appeal, Baker argues that the circuit court erred in admitting irrelevant prescription-medication evidence and testimony without any proof of impaired mental status and that she suffered prejudice from the court's error. Baker also argues that the circuit court erroneously excluded evidence regarding towing and storage costs based on its conclusion that those costs are not compensable elements of damage. We affirm.
II. Issues on Appeal
A. Relevance of the Evidence and Resulting Prejudice
We will not reverse the circuit court's decision to admit or refuse evidence in the absence of an abuse of that discretion and a showing of prejudice. Graftenreed v. Seabaugh , 100 Ark. App. 364, 370, 268 S.W.3d 905, 913 (2007). The balancing of probative value against prejudice is a matter left to the sound discretion of the circuit court, and its decision on such a matter will not be reversed absent a manifest abuse of that discretion. Bedell v. Williams , 2012 Ark. 75, 386 S.W.3d 493. Rule 403 of the Arkansas Rules of Evidence precludes the admission of even relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice.
Baker argues that the instant case is similar to Wade v. Grace , 321 Ark. 482, 902 S.W.2d 785 (1995), in which our supreme court affirmed the circuit court's decision to exclude certain evidence. Wade involved a negligence action arising from a collision between a party barge and a ski boat. In Wade , there was evidence that six beer cans were in the water immediately after the accident, that the operator of the ski boat admitted to having one beer, and that he smelled of alcohol. The circuit court excluded this evidence on the ground that it would be unfairly prejudicial absent evidence that the ski boat operator was intoxicated. The facts of the instant case are similar because there is no evidence of Baker's intoxication or impairment at the time of the accident or immediately afterward; thus, any evidence regarding her prescription medication is irrelevant and should have been excluded.
Although Baker has demonstrated error, she must also show that the admitted evidence resulted in prejudice, which she cannot do; therefore, we must affirm. Without any showing of prejudice, any judicial error as to the admissibility of evidence is harmless error and cannot be grounds for disturbing a circuit court's order. Ark. R. Civ. P. 61 (2017); Campbell v. Entergy Ark., Inc. , 363 Ark. 132, 137, 211 S.W.3d 500, 504-05 (2005).
In her reply brief, Baker argues that she suffered prejudice because the admission of the prescription-drug evidence prevented her from receiving a fair trial. Baker defines a fair trial as "one likely to accomplish full justice within human limitations. 88 C.J.S. Trial § 2," and she asserts that "[a] jury verdict rendered by erroneously introduced evidence and testimony which is not only irrelevant but is highly prejudicial should not be upheld." Baker's argument is not well taken.
Without a finding of fault on Baker's part, she cannot show that the admission of irrelevant prescription-medication evidence resulted in prejudice to her. Our courts have consistently held that if no prejudice results from the erroneous admission of evidence, we will not reverse. See Billings v. Gipson , 297 Ark. 510, 763 S.W.2d 85 (1989) (holding that because no negligence was found by the jury, no prejudice resulted from the admission of evidence that Billings drank on the job and had a habit of doing so); Ray v. Murphy , 284 Ark. 512, 683 S.W.2d 916 (1985) (holding that even if an instruction is erroneously given, a jury verdict of not guilty of any degree of negligence renders it harmless).
On this point, we affirm.
B. Other Damages
Baker also argues that the circuit court erroneously excluded evidence of towing and storage costs; however, in light of our holding above, any issues related to the costs of towing and storing Baker's car are moot because the jury found that no one was at fault for destroying the car and rendering it undrivable. See Howard v. Adams , 2012 Ark. App. 562, 424 S.W.3d 337 (holding that the question of damages is moot once the lack of liability is determined).
Furthermore, we are precluded from review of this issue because Baker failed to challenge both of the grounds the circuit court relied on when it excluded towing and storage-costs evidence. The circuit court stated two bases to support its denial of Baker's request to admit the towing and storage-costs evidence and testimony: (1) Baker's deficient amended complaints; and (2) that Arkansas Code Annotated section 27-53-401 (Repl. 2010) does not permit towing and storage fees in damage calculations. Baker contests the court's statutory-grounds finding but fails to address the court's finding that a claim for towing and storage fees had been omitted from the amended complaints. When two or more alternative reasons are given for a decision and an appellant challenges fewer than all of those grounds, we will affirm without addressing any of the grounds. Ark. Dep't of Cmty. Corr. v. Barclay , 2017 Ark. App. 214, at 6-7, 518 S.W.3d 138, 143. Therefore, this court must summarily affirm without addressing the merits.
Affirmed.
Klappenbach and Murphy, JJ., agree.
Paragraph V in the original complaint included a claim for towing and storage costs, but neither of the amended complaints referred to towing and storage costs. The amended complaint and second amended complaint do refer to the amendment of paragraph IV of the original complaint; however, Baker actually amended paragraph V. | [
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ROBIN F. WYNNE, Associate Justice
Elliott Harold Finch, Jr., was found guilty by a Pulaski County jury of aggravated residential burglary, aggravated assault on a family or household member, and first-degree terroristic threatening. An enhancement for use of a firearm was applied pursuant to Arkansas Code Annotated section 16-90-120 (Repl. 2016), and appellant was sentenced as a habitual offender under Arkansas Code Annotated section 5-4-501 (Repl. 2013). Appellant received a sentence of life imprisonment plus fifteen years in the Arkansas Department of Correction, plus a $10,000 fine. On appeal, he argues that the circuit court erred by denying his requests to represent himself at trial and abused its discretion by denying his motion for mistrial based on a juror, during guilt-innocence phase deliberations, looking up something with his cell phone and sharing that information with other jurors. We affirm.
Appellant was charged with kidnapping, aggravated residential burglary, possession of firearms by certain persons, aggravated assault on a family or household member, and first-degree terroristic threatening for events that took place at his former girlfriend's residence in Jacksonville on August 22 and 23, 2013. At trial in November 2016, Roshandra Nwozuzu (formerly Wesley) testified that appellant is her former boyfriend and had lived with her and her two children. On August 4, 2013, after an incident in which he held a boxcutter to her neck, appellant was given a trespass warning by the Jacksonville Police Department, advising him to stay off Ms. Nwozuzu's property. On the night of August 22, Ms. Nwozuzu returned home with her children and went to her master bathroom to shower. When she exited the shower, appellant was pointing a gun at her. Ms. Nwozuzu testified that appellant threatened to kill her, her children, and himself if she screamed, and she spent the next several hours trying to calm him. Early the next morning, she was able to convince him to let her leave for work. She took her nine-year-old daughter with her but was unable to wake up her teenage son, who was taking medication that made him sleep deeply. After leaving the house, Ms. Nwozuzu immediately called the police and met officers at a nearby park. The special-response team was able to use Ms. Nwozuzu's key to get into her residence and get her son out before alerting appellant to their presence. Appellant came out of the master bedroom and was placed under arrest. The State presented the testimony of officers who found a gun and a magazine under the bed in the master bedroom and a broken window. Ms. Nwozuzu's son, Rashaad Nelson, also testified at trial.
The jury was unable to reach a verdict on kidnapping, and the court declared a mistrial on that charge. The jury found appellant guilty of aggravated residential burglary, aggravated assault on a family or household member, and first-degree terroristic threatening. They further found that he had employed a firearm to commit each of these three felony offenses. As noted above, appellant received an aggregate sentence of life plus fifteen years' imprisonment, as well as a fine. This appeal followed.
I. Self-Representation
For his first point on appeal, appellant argues that the circuit court erred in denying his requests to represent himself at trial. The right of a criminal defendant, pursuant to the Sixth Amendment to the United States Constitution, to represent himself at trial was recognized by the Supreme Court of the United States in Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Article 2, section 10 of the Arkansas Constitution provides that an accused in a criminal prosecution has the right "to be heard by himself and his counsel." This court has recognized that the constitutional right to counsel is a personal right and may be waived at the pretrial stage or at trial. Pierce v. State , 362 Ark. 491, 497, 209 S.W.3d 364, 368 (2005).
A defendant may waive the right to counsel and invoke his right to defend himself pro se provided that (1) the request to waive the right to counsel is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct that would prevent the fair and orderly exposition of the issues. Id. (citing Mayo v. State , 336 Ark. 275, 280, 984 S.W.2d 801, 804 (1999) ). Determining whether an intelligent waiver of the right to counsel has been made depends in each case on the particular facts and circumstances, including the background, the experience, and the conduct of the accused. Collins v. State , 338 Ark. 1, 6, 991 S.W.2d 541, 544 (1999). Every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Id.
Here, appellant asserts that he made two timely and unequivocal requests to represent himself at trial. Reviewing the record as a whole, it is clear that appellant was dissatisfied with his appointed counsel. What is less clear is whether he made an unequivocal waiver of his right to counsel or whether he had engaged in tactics that would prevent the fair and orderly exposition of the issues. Appellant began asking for the appointment of new counsel as far back as September 22, 2015. Appellant first made a request to represent himself at trial at a hearing on October 19, 2015. In this hearing, appellant repeatedly stated that he did not want his current attorney to represent him. While he interspersed his complaints about his attorney with the statement that he wanted to represent himself, he also showed himself to be unwilling or unable to stop talking over other people, including the judge. And perhaps most importantly, the court ordered a mental evaluation at the state hospital at this hearing to determine appellant's fitness to proceed. This court has held that a trial court cannot determine whether a waiver of counsel is knowingly and intelligently made when an examination of a defendant's competency to stand trial had not yet been made. Mayo v. State , 336 Ark. 275, 283, 984 S.W.2d 801, 806 (1999).
Appellant alleges that at a pretrial hearing on March 10, 2016, he again unequivocally asked to represent himself. This hearing followed a second mental evaluation at which appellant again refused to cooperate on the portion of the examination regarding his mental state at the time of the alleged offenses, despite this evaluation being done at appellant's request and under the circuit court's admonition to cooperate. During this same time, appellant continued to file various pro se motions in which he attempted to get the charges against him dismissed for violation of speedy trial. At the March hearing, appellant again showed himself to be disruptive.
We recognize that the circuit court's inquiry included irrelevant concerns, such as appellant's level of education and technical legal knowledge, and the court's stated basis for denying the request-"the seriousness of the offenses and the likelihood of [appellant] getting some serious time"-was invalid. However, on this record we must conclude that appellant's request was not unequivocal and that the trial court could have concluded that appellant had "engaged in conduct that would prevent the fair and orderly exposition of the issues." Based on the above, we affirm on this point.
II. Motion for Mistrial Based on Juror Misconduct
For his second point on appeal, appellant argues that the circuit court abused its discretion by denying his motion for mistrial made after it was discovered, during the guilt-innocence-phase deliberations, that a juror had used his cell phone to look up something, and had shared that information with the other jurors. He argues on appeal that it was an abuse of discretion for the circuit court to deny his motion for mistrial without giving him the opportunity to question the jurors under oath about the extraneous information. In response, the State argues that the circuit court did not abuse its discretion in denying the motion for mistrial because appellant sought to question the jurors about what was discussed during deliberations, which would have violated Ark. R. Evid. 606, and "juror misconduct is appropriately investigated by the court on a motion for new trial." The State further contends that appellant failed to meet his burden of proof to show a reasonable probability of prejudice because he did not call any witnesses or present further evidence and that a juror looking up the definition of "hung jury" does not demonstrate a reasonable possibility of prejudice.
We begin by recognizing that a defendant's Sixth Amendment right to a fair trial before an impartial jury is a fundamental element of due process. Elmore v. State , 355 Ark. 620, 623, 144 S.W.3d 278, 280 (2004) (citations omitted). Implicit in the right to an impartial jury trial is the right to have the jury's verdict be "based solely on the evidence presented in the case." Johnson v. State , 423 Md. 137, 31 A.3d 239, 246 (2011) (citing Couser v. State , 282 Md. 125, 383 A.2d 389, 397 (1978) ; accord Turner v. Louisiana , 379 U.S. 466, 472-73, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965) ("[T]he 'evidence developed' against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel."); Patterson v. Colorado , 205 U.S. 454, 462, 27 S.Ct. 556, 51 L.Ed. 879 (1907) ("The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print").)
We have made it clear that a mistrial is a drastic remedy and should be declared when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when it cannot be cured by an instruction. Holsombach v. State , 368 Ark. 415, 246 S.W.3d 871 (2007). The trial court has wide discretion in granting or denying a motion for mistrial, and absent an abuse of that discretion, the trial court's decision will not be disturbed on appeal. Id. Following an allegation of juror misconduct, the moving party bears the burden of proving both the misconduct and that a reasonable possibility of prejudice resulted from it. Id. We defer to the superior position of the trial court to evaluate the credibility of the witnesses and the prejudicial effect of the misconduct, if any. Id.
Here, around the time the court received a note from the jury asking, "If we do not all agree on guilty or not guilty on the first page, how do we handle this?" the court was alerted to the possibility that Juror 4 had looked something up on his cell phone. The court informed counsel, called that juror into the courtroom, swore him in, and asked whether he had used his cell phone to look up something that he did not understand. The juror testified that he had, in fact, looked something up, that he had done so "before [he] had even thought about it" in spite of the court's instructions, and that he had shared that information with the other jurors. Defense counsel moved for a mistrial and also asked to voir dire the jury to find out what Juror 4 had told them. After hearing lengthy arguments regarding how to proceed, the trial court ultimately removed Juror 4, replaced him with an alternate juror, and allowed deliberations to continue. The court appeared to believe that it was constrained by Arkansas Rule of Evidence 606(b) from asking any questions other than what it had asked Juror 4. No curative instruction was requested or given.
After trial, appellant filed a motion for new trial in which he argued that the jury committed misconduct by considering outside information, regardless of what information Juror 4 looked up; that the split verdict (hung on kidnapping and guilty on the other charges) showed a reasonable probability that the outside information influenced a juror's vote; and that the court violated his right to substantive due process by denying his motion for mistrial without allowing him an opportunity to show prejudice by asking the jurors what extraneous information they learned. The State responded that the motion should be denied because it failed to provide any new information for the court to consider and because there was no evidence that the extraneous information created a reasonable probability-not a mere possibility-of prejudice. The court held a hearing, and after considering the arguments of counsel, denied the motion for new trial. Appellant later filed an amended motion for new trial, this time attaching an affidavit of defense attorney Andrew Thornton stating that he had contacted Juror 4 and discovered that he had looked up the definition of "hung jury" during deliberations at appellant's trial. He told Thornton that he was "pretty sure" the definition was "[i]f the jury is not unanimous or is a majority, the judge sends them back for more deliberations, and if no consensus is made, there's a mistrial." The juror did not wish to talk further about the case or sign an affidavit. The trial court entered an order treating the amended motion for new trial as one for reconsideration and denying it.
Arkansas Rule of Evidence 606, Competency of Juror as Witness, provides in pertinent part as follows:
(b) Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.
The purpose of this rule is to balance the freedom of secret jury deliberations with the ability to correct an irregularity in those deliberations. Davis v. State , 330 Ark. 501, 511, 956 S.W.2d 163, 168 (1997). We do not read the language of Rule 606(b) to preclude the questioning of Juror 4 as to what he had researched on his cell phone and shared with the other jurors. Rather, "a juror may testify on the question[ ] whether extraneous prejudicial information was improperly brought to the jury's attention," and what that information consisted of is an integral part of the testimony and is necessary for deciding whether a reasonable possibility of prejudice exists. In short, there is nothing in either Rule 606(b) or any precedent of which we are aware that would have prevented the circuit court from undertaking a reasonable inquiry into the nature of the extraneous information when it was brought to the court's attention during deliberations.
We are troubled by the trial court's denial of the motion for mistrial without a proper inquiry into the extrinsic information presented to the jury by Juror 4, but we conclude that there was no reasonable probability of prejudice to appellant in this particular case. A definition of the term "hung jury" is unlikely to result in prejudice to appellant, particularly in this case where the jury was, in fact, hung on the first count, kidnapping, and appellant received a mistrial on that charge. The definition of "hung jury" did not concern appellant's claim of innocence or the degree of his guilt. Researching the factual history of the case or even the definition of a term included in the elements of an offense would be much more likely to be prejudicial. In Franks v. State , 306 Ark. 75, 811 S.W.2d 301 (1991), the jurors used a dictionary to look up the definition of "premeditation." This court affirmed the denial of Franks's motion for new trial, writing: "While we agree that, generally, it is misconduct for a jury to seek out reading material without the knowledge of the court and the parties, prejudice does not occur in every case." Furthermore, this court has observed that a defendant is entitled to a fair trial, not a perfect trial. State v. Cherry , 341 Ark. 924, 931, 20 S.W.3d 354, 358 (2000). We hold that appellant could not show a reasonable possibility of prejudice in this case, and we therefore affirm on this point.
III. Rule 4-3(i)
In compliance with Arkansas Supreme Court Rule 4-3(i), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no prejudicial error has been found.
Affirmed.
Baker, J., concurs.
Hart, J., dissents.
Josephine Linker Hart, Justice, dissenting.
The majority is correct when it states that the circuit court erred in its handling of Mr. Finch's assertion of his right to represent himself and in its handling of the juror misconduct situation. However, the majority errs when it fails to order a new trial. Mr. Finch was denied the trial that he was guaranteed under the Sixth Amendment to the United States Constitution and article 2, section 10 of the Arkansas Constitution. In affirming this case, the majority makes errors of fact and law with regard to Mr. Finch's right to represent himself. Likewise, the majority completely ignores our jurisprudence with regard to juror misconduct that consists of accessing the internet with a mobile phone during deliberations. Mr. Finch deserves a new trial.
Contrary to the majority's assurances, its rationale for affirming the circuit court's denial of Mr. Finch's right to discharge his appointed counsel and represent himself is not supported by the record. The majority's assertion that Mr. Finch's request "was not unequivocal" is belied by the fact that Mr. Finch's request to represent himself was made both orally and in writing.
I am troubled by the majority's confession that it is unable to "conclude" that Mr. Finch's request to represent himself was "unequivocal." The record reflects that Mr. Finch voiced the simple declaratory sentence, "I want to represent myself," no fewer than three times in the October 19, 2015 hearing. Further, on February 25, 2016, Mr. Finch filed a written motion styled "Motion to Waive Counsel and Proceed Pro Se." That motion was heard and ruled on at a March 10, 2016 hearing. The circuit court obviously found Mr. Finch's "request" unequivocal enough to rule on it on October 19, 2015 and on March 10, 2016. Moreover, contrary to what the State now argues on appeal, Mr. Finch's attempt to exercise his right to waive counsel and represent himself was sufficiently unequivocal to induce the deputy prosecuting attorney to attempt, however incompetently, to lead the circuit judge through an inquiry that would comport with Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
Even with the State's "help," the circuit judge failed to honor the Faretta mandate, or the requirements that this court has imposed on circuit judges to ensure that a criminal defendant's waiver of counsel is voluntary and knowing. Faretta requires of a court in which a criminal defendant who wishes to waive assistance of counsel that the court ensure a defendant is "literate, competent, and understanding," that the defendant's waiver of counsel be voluntarily exercised as a product of "informed free will," and that the defendant be informed of the pitfalls of self-representation, specifically that the defendant "would be required to follow all the 'ground rules' of trial procedure." 422 U.S. at 836, 95 S.Ct. 2525. On the pivotal issue of whether a waiver of counsel is knowing and voluntary, the Arkansas Supreme Court requires a circuit judge to provide a criminal defendant who wishes to represent himself with four bits of information: (1) that the defendant is entitled to an attorney; (2) that the defendant have an attorney represent him at trial even if he cannot afford one; (3) the advantages of being represented at trial by an attorney; and (4) the drawbacks of not being represented by an attorney. Bledsoe v. State , 337 Ark. 403, 989 S.W.2d 510 (1999).
It is more than telling that the majority concedes that the circuit judge's questioning of Mr. Finch included "irrelevant" questions and focused on "invalid" considerations. Logically, the majority's analysis should have led to the conclusion that the circuit judge committed reversible error. Instead, the majority reinvented the facts in this case. The transcript speaks for itself, and it is reproduced here so that it may do so.
At the omnibus hearing on October 19, 2015, Finch told the circuit court:
FINCH : Your Honor, I don't want him as my attorney. It's been a conflict. Me and him had no communication at all. He ain't done nothing for me at all.
JUDGE : Mr. Finch-
FINCH : He lie-lie-been lying to me.
JUDGE : Mr. Finch to you have attorney-any witnesses that you need to call for this trial?
FINCH : I don't want him as my attorney.
JUDGE : That's not my question.
FINCH : That's all I'm going to say.
JUDGE : So you have no witnesses. The trial is set. You have-what's the-
FINCH : I want to represent myself, then.
JUDGE : Mr. Finch you-
FINCH : I don't want him-I don't want him as counsel.
Defense Counsel: I-
Finch: I don't want him as counsel.
JUDGE : Okay, one person can talk at a time. Mr. Finch?
FINCH : Well I-
JUDGE : And at this time-
FINCH : Can I speak then?
JUDGE : No [defense counsel] was speaking. You'll have to wait until he's through.
DEFENSE COUNSEL : Yeah, he's-
JUDGE : [defense counsel]
DEFENSE COUNSEL : He's indicated to me before that he does not have any witnesses. And I wanted to make that clear.
JUDGE : Okay.
FINCH : I didn't tell him that. That's a lie.
JUDGE : Okay Mr. Finch, do you have witnesses in this case?
FINCH : Yeah, I told him back there.
JUDGE : Okay, who are the wit-
FINCH : I talked to him.
JUDGE : Who are-who are the witness that you-
FINCH : I don't want him as my counsel.
JUDGE : That's not my question.
FINCH : I want to represent myself.
JUDGE : Mr. Finch, who are the witnesses-
FINCH : I want to represent myself. And that's all I'm telling you.
JUDGE : Okay All right.
FINCH : I don't want him as my counsel.
JUDGE : [Defense counsel]-
FINCH : Take it how you want to, y'all. Because he-he-
JUDGE : Mr. Finch-
FINCH : -he's sitting up here and lied to me.
JUDGE : Hey, I'm trying to talk to you and you sitting there and just keep over talking me. Listen. Listen. Even if Mr.-if I remove [defense counsel], you got to tell the State who your witnesses are. So do you have witnesses for this case? Do you have witnesses for this-
FINCH : No, I don't have no witness.
JUDGE : Okay. You don't have any witnesses.
FINCH : Don't want no witnesses. I don't want no attorney.
JUDGE : Now-okay. Do you-what grade did you finish in high school? What grade did you finish in high school?
FINCH : I got a GED, your honor.
JUDGE : Okay. GED, okay. What year did you get that?
FINCH : Like ' 99.
JUDGE : Okay. And have you ever been in the system before?
FINCH : Yeah, I been through the system.
JUDGE : You understand the charges against you?
FINCH : Yeah, I understand the charges.
JUDGE : What are the charges against you?
FINCH : He ain't even told me the-
JUDGE : And let-
FINCH : -Punishment, the range, the-the time it carry.
JUDGE : What are the charges against you? See, I'm-I'm going to-I'm going to get a report on act 3 if you don't-if you don't follow-I'm trying to talk-
FINCH : Get your report, like I said.
JUDGE : I'm trying to talk to you.
FINCH : This man-this man been lying to me.
JUDGE : Mr. Finch, you said you-
FINCH : I'm not going to fool with this no more.
JUDGE : I have to go through a process if you want me to repre-if you want to represent yourself, but you won't let me finish.
FINCH : That's act 3. We'll request another act 3 then.
BAILIFF : All right. Let's go.
JUDGE : All right. He's already had one?
DEFENSE COUNSEL : Yes.
FINCH : We're going to request another act 3 then.
JUDGE : All right. That's-I understand.
FINCH : I don't want him as counsel.
JUDGE : I'm not going to let him-
FINCH : This man-
JUDGE : -represent himself.
FINCH : This man voluntary lie to me.
JUDGE : So we'll go ahead and set it for trial. It's set for trial. So it's general now?
DEFENSE COUNSEL : Yes, general now.
JUDGE : All right.
DEFENSE COUNSEL : No motions. Just-except for the motion on the-on Count 3-
JUDGE : All right.
DEFENSE COUNSEL : -being severed.
JUDGE : Okay. All right then.
DEPUTY PROSECUTING ATTORNEY : Anything I get throughout trial prep, I'll be sure to hand over to [defense counsel].
JUDGE : Yes.
DEFENSE COUNSEL : Is State amending the felony information?
DEPUTY PROSECUTING: ATTORNEY : Your honor, we will be amending the felony information. I mentioned this on the record last time because of the defendant's criminal history, we believe that the habitual allegation can actually be increased to two strikes.
JUDGE : All right. And I understand that. And just for the record, Mr. Finch, your motion to represent yourself is denied based on the history that we've had with report from act 3 and all that. So the court is going to deny your motion. So we'll be set for trial. All right.
On February 25, 2016, Mr. Finch filed a written motion styled "Motion to Waive Counsel and Proceed Pro Se." At a March 10, 2016 hearing, the circuit court took up that motion.
JUDGE : All right. And so do you understand the process of trying this matter?
FINCH : Yes sir.
JUDGE : You understand these charges are three strikes?
FINCH : Yes, sir.
JUDGE : What does that mean?
FINCH : It's already been explained to me-
JUDGE : No, I'm asking-
FINCH : -by [my lawyer]
JUDGE : -you what does it mean
FINCH : It's an enhancement.
JUDGE : And what does that mean-
FINCH : Dealing with my previous convictions.
JUDGE : And what will it do for you if you're found guilty?
FINCH : Enhance my charges, the sentence guideline.
JUDGE : And how will it enhance your sentence? You don't know, do you?
FINCH : Depend what type of felony it's involving.
JUDGE : Well, no. You don't know do you?
FINCH : Yes, I know.
JUDGE : Well, tell me. I have to know that you know because I can't let you repre-
FINCH : It will be additional time.
JUDGE : How much additional time?
FINCH : What felony are you referring to?
JUDGE : I'm-no, the felony that you have. It's a-any felony.
FINCH : He is going to enhance it, the number of years I can receive on it-
JUDGE : Well, I-
FINCH : -on the felony.
JUDGE : How will it enhance the number of years?
FINCH : The years I receive.
JUDGE : No. I'm asking you about the three-strike provision. You have three violent-you have two prior violent offenses. This is a violent offense. If you're found guilty, what will it do for your sentence?
FINCH : Well, some of the charge-it's no less than life. If I'm convicted of a Y-felony, it's no less than life. And-
JUDGE : Okay. Well I understand that. But if you get years, how much would you have to do?
FINCH : All of it. I'd be doing 100 percent on it.
JUDGE : You'd be doing 100-you understand that?
FINCH : Yeah.
JUDGE : So if you get ten years, you know you're doing ten years?
FINCH : I'm going to do ten years.
JUDGE : Okay. And you understand-you're willing to risk your own for that?
FINCH : yeah, rather than-yeah.
JUDGE : Is that a yes or no?
FINCH : It's a yes.
JUDGE : State have you anything you want to ask regarding self-representation but nothing else?
DEPUTY PROSECUTING ATTORNEY : Your Honor, we would ask about understanding of the rules of evidence and rules of criminal procedure.
JUDGE : You understand those, the rules of procedure-
FINCH : Yes.
JUDGE : Okay.
DEPUTY PROSECUTING ATTORNEY : And that if Mr. Finch was to represent himself, he would be bound by the same rules as the State.
JUDGE : Oh, he understands that. There's not going to be any-
DEPUTY PROSECUTING ATTORNEY : Your Honor, I just want to make sure it's clear on the record.
JUDGE : I understand.
FINCH : Also, Your Honor, if the Court would, I would like stand-by counsel, though, just stand-by.
JUDGE : For what? You didn't want-
FINCH : I'm just asking.
JUDGE : No, you don't want counsel. You want somebody to put on a show for you and that's not going to happen.
FINCH : I don't-I don't need-
JUDGE : No, now listen.
FINCH : I don't need no one to put on a show for me.
JUDGE : Mr. Finch. Mr. Finch, I'm talking.
FINCH : I done been in here numerous, numerous times.
JUDGE : You have counsel.
FINCH : Counsel ain't done nothing for me.
JUDGE : [Defense counsel] do you feel like that you can represent Mr. Finch?
DEFENSE COUNSEL : Yes.
FINCH : I'm asking-
JUDGE : All right. Your request to be-to self-represent yourself is going to be denied based on the seriousness of the offense and the likelihood of your getting some serious time, the Court's going to deny that request.
Based on this record, I am mindful that Mr. Finch, on occasion talked over his appointed counsel and the circuit judge.
However, this breach of decorum occurred only when Mr. Finch was being ignored by the circuit judge as he attempted to raise the most important matter pending before the circuit court at the time-who would represent him. This was a threshold matter that had to be resolved before other matters because all of the trial strategy necessarily flowed from that key determination. Moreover, talking over another person present was exhibited frequently by the circuit judge and by Mr. Finch's appointed counsel. Significantly, Mr. Finch was respectful-he called the circuit judge "sir" and "Your Honor." Mr. Finch was also responsive to the circuit judge's questions, even though they were, as the majority notes, "irrelevant." Accordingly, the majority's "finding" that the circuit court "could have concluded" that Mr. Finch's self-representation would prevent the fair and orderly exposition of the issues is not only improper fact-finding but also unsupported by the record.
Likewise, the majority errs in its handling of the juror-misconduct issue. The majority professes to be "troubled" that the circuit judge denied Mr. Finch's mistrial motion "without a proper inquiry." I share the majority's concern. However, what troubles me more is the majority's failure to even acknowledge the primary case relied on by Mr. Finch, Dimas-Martinez v. State , 2011 Ark. 515, 385 S.W.3d 238. In my view, Dimas-Martinez is on point and must be either followed or overruled.
In Dimas-Martinez , this court held that it is reversible error for a juror to use a cell phone in the juror room to access the internet. While the focus in Dimas-Martinez was on a juror who disregarded instructions of the court and was tweeting in the jury room, two principles translate to the case before us.
First, it is reversible error when the circuit court does not address the misconduct of juror who was discovered to have disregarded the court's instructions regarding its prohibition of the use of electronic devices during jury service. The Dimas-Martinez court stated, "This is simply unacceptable, and the circuit court's failure to acknowledge this juror's inability to follow the court's directions was an abuse of discretion." In the case before us, it is noteworthy that the circuit judge's rationale for not conducting a proper inquiry was that he thought he might want to sanction the juror for disregarding his instructions.
Second, any access of the internet in the jury room constitutes jury misconduct regardless of demonstrated prejudice. The Dimas-Martinez court stated:
Finally, we take this opportunity to recognize the wide array of possible juror misconduct that might result when jurors have unrestricted access to their mobile phones during a trial. Most mobile phones now allow instant access to a myriad of information. Not only can jurors access Facebook, Twitter, or other social media sites, but they can also access news sites that might have information about a case. There is also the possibility that a juror could conduct research about many aspects of a case.
2011 Ark. 515, at 17, 385 S.W.3d at 249. The Dimas-Martinez court's fears have proven well founded in the case before us, as the offending juror was allegedly conducting research.
Stare decisis must be scrupulously followed. Unless we follow this doctrine, this court ceases to be an instrument of the rule of law and instead becomes a mere oligarchy. I would reverse and remand this case on both points.
I dissent.
Specifically, he was sentenced as a habitual offender with two or more enumerated felonies involving violence under Arkansas Code Annotated section 5-4-501(d) for the aggravated residential-burglary conviction (Class Y felony), resulting in an automatic sentence of life imprisonment, and as a habitual offender with four or more prior felony convictions under section 5-4-501(b) for his other two convictions (a term of imprisonment of not more than fifteen years for a Class D felony).
This charge was severed before trial.
On February 25, 2016, appellant had filed a written "Motion to Waive Counsel and Proceed Pro Se."
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RAYMOND R. ABRAMSON, Judge
This is the second time this case has been before us. We initially reversed the Ashley County Circuit Court's dismissal of Carolyn Lawson's suit against Simmons Sporting Goods, Inc. (Simmons), for lack of personal jurisdiction. See Lawson v. Simmons Sporting Goods, Inc. , 2017 Ark. App. 44, 511 S.W.3d 883, reh'g denied (Mar. 1, 2017) ( Lawson I ). Following our reversal, Simmons filed a petition for a writ of certiorari with the United States Supreme Court, and the Supreme Court vacated our opinion and remanded the case in light of its decision in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty. , --- U.S. ----, 137 S.Ct. 1773, 198 L.Ed.2d 395 (2017). See Simmons Sporting Goods, Inc. v. Lawson , --- U.S. ----, 138 S.Ct. 237, 199 L.Ed.2d 2 (Mem.) (2017). Having considered Bristol-Myers , we now affirm the circuit court's dismissal of the case for lack of personal jurisdiction.
We first briefly reiterate the facts of this case as discussed in Lawson I . This lawsuit stems from a premises-liability suit. Lawson is a resident of Ashley County, Arkansas. Simmons operates a retail sporting-goods store located in Bastrop, Louisiana. This is the corporation's only store, and it has never operated a store in Arkansas. It is a Louisiana corporation with its principal place of business, registered office, and registered agent in Bastrop, Louisiana. The corporation has only two shareholders, both of whom are Louisiana residents.
Simmons advertises in Arkansas. Its advertising efforts include inserting promotional catalogs and display advertisements into various Arkansas newspapers, running promotional advertisements on television, and running advertisements online with the Arkansas Democrat-Gazette. The advertisements state that customers can get the same deals by "shopping from home" on its website. Simmons also hosts a "Big Buck Contest" in which the store awards a prize for the largest deer harvested in Arkansas. To qualify, one must bring the deer to the store in Louisiana and must live within 200 miles of Bastrop, Louisiana.
On August 3, 2013, Lawson traveled from her home in Arkansas to the Simmons store in Louisiana to shop at the "Annual Tent Sale" event. Lawson stated that she did not visit Simmons based on its advertisements but went because her daughter wanted to attend the tent sale that she had learned about by "word of mouth." Upon entering the store, she fell on a rug located in the foyer and broke her arm.
Lawson then filed suit against Simmons in the Ashley County Circuit Court seeking damages for her pain and suffering, past and future medical expenses associated with care and treatment of the injuries sustained, and current and future restrictions upon her activities imposed by her injuries. In response, Simmons filed its motion to dismiss for lack of personal jurisdiction. A hearing was held on the matter, and the circuit court issued an order granting the motion to dismiss. Lawson appealed the order to this court.
On appeal, we reversed the circuit court and held that Simmons's contacts with Arkansas created specific jurisdiction. Lawson I , 2017 Ark. App. 44, 511 S.W.3d 883. We noted that the Arkansas Supreme Court had recently reiterated its adoption of the Eighth Circuit five-factor test for determining minimum contacts over nonresident corporations in Hotfoot Logistics, LLC v. Shipping Point Marketing, Inc. , 2014 Ark. 460, 447 S.W.3d 592, and we applied that test. Id. Those five factors are (1) the nature and quality of contacts with the forum state; (2) the quantity of such contacts; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) convenience of the parties. Id. We held that Simmons's contacts with Arkansas created specific jurisdiction. Id. Specifically, we stated that
the facts demonstrating contacts between the parties are explained as follows. From 2012 to 2015, Simmons printed and distributed catalogs in the State of Arkansas, and purchased newspaper advertising in Arkansas newspapers, as well as television advertisements. Importantly, Simmons hosted a contest that targeted Arkansas residents for the largest deer harvested in Arkansas. Simmons circulated a total of 483,700 print advertisements and a total of 1,696,704 copies of the catalog. However, the relation of the cause of action to the contacts is weak. This cause of action arises out of a premises-liability suit that occurred in Louisiana; it is not directly connected to Simmons's advertisements. As discussed above, however, the proper question is not where the plaintiff experienced a particular injury or effect, but whether the defendant's conduct connects him to the forum in a meaningful way. Walden [v. Fiore , 571 U.S. 277, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014) ]. Moreover, Arkansas does have a strong interest in providing a forum for its residents, particularly for those residents who act in response to solicitation from outside states. Lastly, Simmons is located roughly thirty miles away from the forum, so the argument regarding an inconvenient forum is weak.
Id. at 7, 511 S.W.3d at 887-88 (footnote omitted). Accordingly, we held that even though the relationship between Simmons's contacts with Arkansas and the cause of action was weak, the other four factors weighed in favor of exercising specific jurisdiction over Simmons.
As earlier stated, following the issuance of Lawson I , Simmons filed a petition for review with our supreme court, and our supreme court denied it. Simmons then filed a petition for a writ of certiorari with the United States Supreme Court, and the Supreme Court vacated our opinion in light of its decision in Bristol-Myers . See Simmons Sporting Goods, Inc. v. Lawson , --- U.S. ----, 138 S.Ct. 237, 199 L.Ed.2d 2 (Mem.) (2017).
In Bristol-Myers , a group of plaintiffs consisting of 86 California residents and 592 residents from 33 other States brought a mass tort action in California state court against Bristol-Myers Squibb (BMS), a large pharmaceutical company. --- U.S. ----, 137 S.Ct. 1773, 198 L.Ed.2d 395. The plaintiffs asserted a variety of state-law claims based on injuries allegedly caused by Plavix, a drug manufactured by BMS. Id. BMS is incorporated in Delaware and headquartered in New York. Id. Five of the company's research and laboratory facilities, which employ around 160 employees, are located in California. Id. BMS also employs about 250 sales representatives in California and maintains a small state-government advocacy office in Sacramento. Id.
BMS challenged the California court's exercise of jurisdiction over the company as to the claims of the nonresident plaintiffs, none of whom asserted any injury from the drug in California or any other connection to the state. Id. Applying a "sliding-scale approach to specific jurisdiction," the California Supreme Court held that BMS's contacts with California created specific jurisdiction. Id. at 1778. Under this approach, "the more wide ranging the defendant's forum contacts, the more readily is shown a connection between the forum contacts and the claim." Id. The California Supreme Court concluded that BMS's extensive contacts with California permitted the exercise of specific jurisdiction "based on a less direct connection between BMS's forum activities and plaintiffs' claims than might otherwise be required." Id. at 1779.
BMS appealed the decision to the United States Supreme Court, and the Court agreed with BMS that the California court's exercise of specific jurisdiction over the company as to those claims brought by the nonresident plaintiffs violated the Due Process Clause of the Fourteenth Amendment. Id. The Court found that California's "sliding scale approach" was difficult to "square with [Supreme Court] precedents." Id. at 1781. Specifically, the Court stated that
[u]nder the California approach, the strength of the requisite connection between the forum and the specific claims at issue is relaxed if the defendant has extensive forum contacts that are unrelated to those claims. Our cases provide no support for this approach, which resembles a loose and spurious form of general jurisdiction. For specific jurisdiction, a defendant's general connections with the forum are not enough. As we have said, a corporation's continuous activity of some sorts within a state ... is not enough to support the demand that the corporation be amenable to suits unrelated to that activity.
Id. (internal quotations and citations omitted).
The Court clarified that
[i]n order for a court to exercise specific jurisdiction over a claim, there must be an 'affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State.' Goodyear[ Dunlop Tires Operations, S.A. v. Brown] , 564 U.S.[ 915], 919, 131 S.Ct. 2846[, 180 L.Ed.2d 796 (2011) ] (internal quotation marks and brackets in original omitted). When there is no such connection, specific jurisdiction is lacking regardless of the extent of a defendant's unconnected activities in the State. See id. at 931, n.6, 131 S.Ct. 2846 ('[E]ven regularly occurring sales of a product in a State do not justify the exercise of jurisdiction over a claim unrelated to those sales').
Id. at 1781. The Court found that "[w]hat is needed-and what is missing here-is a connection between the forum and the specific claims at issue." Id. The nonresident plaintiffs had not shown that they were prescribed or had purchased or had ingested the drug in California. Id. Nor were any of the nonresident plaintiffs injured by the drug in California. Id. In short, the Supreme Court reasoned, the nonresident plaintiffs' claims did not comport with due process because none involved any activity or occurrence that took place in California. Id. The Court further explained that
[i]n determining whether personal jurisdiction is present, a court must consider a variety of interests. These include 'the interests of the forum State and of the plaintiff in proceeding with the cause in the plaintiff's forum of choice.' Kulko v. Superior Court of Cal., City and County of San Francisco , 436 U.S. 84, 92, 98 S.Ct. 1690, 56 L.Ed. 2d 132 (1978) ; see Daimler [AG v. Bauman , 571 U.S. 117, 139 n.2, 134 S.Ct. 746 (2014) ]; Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty. , 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed. 2d 92 (1987) ; World-Wide Volkswagen[ Corp. v. Woodson] , 444 U.S.[ 286, ]292, 100 S.Ct. 559[, 62 L.Ed.2d 490 (1980) ]. But the 'primary concern' is 'the burden on the defendant.' Id. , at 292, 100 S.Ct. 559. Assessing this burden obviously requires a court to consider the practical problems resulting from litigating in the forum, but it also encompasses the more abstract matter of submitting to the coercive power of a State that may have little legitimate interest in the claims in question. As we have put it, restrictions on personal jurisdiction 'are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States.'
Hanson v. Denckla , 357 U.S. 235, 251, 78 S.Ct. 1228, 2 L.Ed. 2d 1283 (1958). '[T]he States retain many essential attributes of sovereignty, including, in particular, the sovereign power to try causes in their courts. The sovereignty of each State ... implie[s] a limitation on the sovereignty of all its sister States.' World-Wide Volkswagen , 444 U.S., at 293, 100 S.Ct. 559. And at times, this federalism interest may be decisive. As we explained in World-Wide Volkswagen , '[e]ven if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment.' Id. , at 294, 100 S.Ct. 559.
Id. at 1780-81.
The Supreme Court stated that its decision in Walden v. Fiore , 571 U.S. 277, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014), illustrated the connectedness requirement. In that case, Nevada plaintiffs sued an out-of-state defendant for conducting an allegedly unlawful search of the plaintiffs while they were in Georgia preparing to board a plane bound for Nevada. Id. The Supreme Court held that the Nevada courts lacked specific jurisdiction because the "relevant conduct occurred entirely in Georgia, and the mere fact that [the] conduct affected plaintiffs with connections to the forum state does not suffice to authorize jurisdiction." Id. at 1126. The Court pointed out that as in Walden and the case at hand, "all the conduct giving rise to the ... claims occurred elsewhere." Bristol-Myers , 137 S.Ct. at 1782.
We now turn to the merits of the instant case. On remand, Lawson argues that Bristol-Myers does not warrant modification of our decision in Lawson I . She asserts that in Lawson I , we cited Supreme Court precedent that Bristol-Myers did not overturn. She further argues that Bristol-Myers is factually inapposite to this case and that the Eighth Circuit five-factor test that our supreme court uses in personal-jurisdiction cases is unaffected by Bristol-Myers .
Simmons argues that Bristol-Myers mandates modification of our decision in Lawson I because Bristol-Myers requires an affiliation between the forum and the underlying controversy, and in Lawson I , we held that "the relation of the cause of action to the contacts is weak." Thus, Simmons asserts that this court has already determined that no relationship exists, and as a result, we must hold that no specific jurisdiction exists. Simmons argues that in light of Bristol-Myers , this court cannot consider the other four factors from the Eighth Circuit test in order to create specific jurisdiction when the connectedness factor is lacking. It points out that the Supreme Court rejected California's sliding-scale test, which permitted California courts to consider a defendant's nonrelated contacts when determining specific jurisdiction.
Simmons's argument is well taken, and we hold that Arkansas does not have specific jurisdiction over Simmons in light of the Supreme Court's decision in Bristol-Myers . Even though the facts of Bristol-Myers are distinct from the facts here, the Supreme Court's rationale in rejecting California's sliding-scale test in Bristol-Myers implicates our application of the Eighth Circuit five-factor test in Lawson I . In Lawson I , we held that there was little affiliation between the forum and the underlying controversy. We stated that "the relation of the cause of action to the contacts is weak. This cause of action arises out of a premises-liability suit that occurred in Louisiana; it is not directly connected to Simmons's advertisements." Lawson I , 2017 Ark. App. 44, at 6, 511 S.W.3d at 887-88. However, we applied the other factors from the Eighth Circuit five-factor test-the nature and quality of Simmons's contacts with Arkansas, the quantity of such contacts, the interest of Arkansas in providing a forum for its residents, and the convenience of the parties-and concluded that specific jurisdiction existed. That analysis of specific jurisdiction is improper under Bristol-Myers . Bristol-Myers prevents a court from exercising specific jurisdiction when there is no connection between the cause of action and the forum. In other words, this court cannot use the other factors to create specific jurisdiction. We recognize that in Lawson I , we relied on Supreme Court precedent that Bristol-Meyers did not overrule. However, in Bristol-Myers , the Supreme Court mandated a "straightforward application ... of settled principles of personal jurisdiction." See Bristol-Myers , 137 S.Ct. at 1783.
Accordingly, because we found that there was no affiliation between Arkansas and the underlying controversy in Lawson I , and because Bristol-Myers requires such an affiliation for specific jurisdiction to exist, we must affirm the circuit court's dismissal of Lawson's complaint for lack of personal jurisdiction.
Affirmed.
Virden, Glover, and Hixson, JJ., agree.
Vaught and Murphy, JJ., dissent.
Specifically, the Supreme Court issued a grant, vacate, and remand (GVR) order. The Supreme Court has stated that "a GVR order conserves the scarce resources of th[e] Court that might otherwise be expended on plenary consideration, assists the court below by flagging a particular issue that it does not appear to have fully considered, assists th[e] Court by procuring the benefit of the lower court's insight before [it] rule[s] on the merits, and alleviates the '[p]otential for unequal treatment' that is inherent in [the Court's] inability to grant plenary review of all pending cases raising similar issues." Lawrence v. Chater , 516 U.S. 163, 167, 116 S.Ct. 604, 133 L.Ed.2d 545 (1996).
The California trial court initially found that BMS's contacts supported general jurisdiction, and the California Court of Appeals denied review of that decision. However, after the United States Supreme Court issued its decision in Daimler AG v. Bauman , 571 U.S. 117, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014), the California Supreme Court vacated the appellate court's mandate and referred the case back to the court of appeals. On remand, the court of appeals found that BMS's contacts supported specific jurisdiction. The California Supreme Court then reviewed the court of appeals's decision. | [
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N. MARK KLAPPENBACH, Judge
Appellant Lisa E. Law appeals from the order of the Benton County Circuit Court granting summary judgment to appellee Wal-Mart Stores, Inc., on the basis that it was not the proper defendant. Law argues that the circuit court's order should be reversed because Wal-Mart Stores, Inc., should not be permitted to escape liability based on the confusion it created. We affirm.
On September 9, 2016, Law filed suit against Wal-Mart Stores, Inc., for negligence arising out of a slip and fall that occurred at Wal-Mart Store # 100 in Bentonville, Arkansas, on September 11, 2013. Wal-Mart Stores, Inc., answered the complaint on September 29, 2016, and affirmatively asserted that it was an improper party and should be dismissed from the case. It stated that Wal-Mart Stores Arkansas, LLC, operated the relevant store and was the proper defendant to Law's suit. In May 2017, Wal-Mart Stores, Inc., filed a motion for summary judgment alleging, in part, that because it neither owned nor operated the store at which the alleged incident occurred it owed no duty of care to Law and was not a proper party to the case. It attached to the motion the affidavit of Billy A. Glass, who was employed by Wal-Mart Stores, Inc., as "Senior Manager II, Real Estate & Portfolio Management." Glass averred that Store # 100 was operated by Wal-Mart Stores Arkansas, LLC, that the real estate on which the store was situated was owned by Wal-Mart Real Estate Business Trust, and that both of these entities were wholly owned subsidiaries of Wal-Mart Stores, Inc. In response, Law argued that the defendant should not be allowed to defeat actions against its stores by setting up wholly owned subsidiaries. She attached printouts from the Secretary of State's website, arguing that because Store # 100 was not listed among the fictitious names for Wal-Mart Stores Arkansas, LLC, there was a question of fact precluding summary judgment. Wal-Mart Stores, Inc., reiterated in reply that it had identified the proper defendant for Law in its answer. Following a hearing, the circuit court granted summary judgment to Wal-Mart Stores, Inc., based on Law's failure to name the correct party.
Summary judgment may be granted only when there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Washington Cty. v. Bd. of Trs. of the Univ. of Ark. , 2016 Ark. 34, 480 S.W.3d 173. In a case where the parties agree on the facts, we simply determine whether the appellee was entitled to judgment as a matter of law. Id. As to issues of law presented, our review is de novo. Id.
Law argues that the purpose of fictitious-name registration is to provide notice of the real party in interest, but here, she did not have such notice because both the parent company and its wholly owned subsidiary registered the same fictitious name. The exhibits attached to Law's response to the motion for summary judgment show that "Wal-Mart" is listed as one of several fictitious names for Wal-Mart Stores, Inc., and "Walmart" is listed as a fictitious name for Wal-Mart Stores Arkansas, LLC. She notes that Store # 100 was not registered as a fictitious name for either entity but other numbered stores were. Law contends that the companies should not be permitted to escape liability based on the confusion they create. She asserts that this is an issue of first impression in Arkansas and directs us to a federal district court case from Minnesota in which the court denied the defendant's motion to dismiss alleging that one of its wholly owned subsidiaries was the proper defendant in the case. Medica Self-Insured v. Tenet Healthcare Corp. , Civil No. 06-4747, 2007 WL 1385589 (D. Minn. May 4, 2007). In addition to not being binding precedent, however, we note that the decision in that case was based not on confusion but on the plaintiffs' contention that they had, in fact, sued a proper party.
Wal-Mart Stores, Inc., argues that summary judgment was appropriate because, as neither the owner nor operator of the store, it owed no duty of care to Law. It argues that the similar fictitious names in no way precluded Law from naming the proper defendant, that it did nothing to hide the identity of the correct defendant, and that Law made no attempt to amend her complaint after being informed of the correct defendant.
Arkansas Rule of Civil Procedure 15 allows for an amendment changing the party against whom a claim is asserted to relate back to the date of the original complaint when certain requirements are met. In order for a party to avail himself or herself of Rule 15(c)'s relation-back provision, the facts must show four things: (1) the claim must have arisen out of the conduct set forth in the original complaint; (2) the party to be brought in must have such notice of the institution of the action that it would not be prejudiced in maintaining a defense on the merits; (3) the party must have known, or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against it; and (4) the second and third requirements must have been met within 120 days of the filing of the original complaint. Bell v. Jefferson Hosp. Ass'n, Inc. , 96 Ark. App. 283, 241 S.W.3d 276 (2006).
In Bell , the plaintiff filed her original complaint against Jefferson Regional Medical Center Development, Inc., which subsequently moved to dismiss because it neither owned nor operated the hospital where the slip and fall occurred. The motion to dismiss identified the party that operated the hospital. Although the statute of limitations had run, the plaintiff amended her complaint to name the proper party. This court held that the amended complaint related back to the filing date of the original complaint because the allegations in the amended complaint were the same as in the original complaint and the proper defendant was served with the amended complaint within 120 days of the filing of the original complaint.
Law filed her complaint on September 9, 2016, and thus had 120 days from that date to achieve the proper notice on Wal-Mart Stores Arkansas, LLC. Although the statute of limitations had expired by the time Wal-Mart Stores, Inc., filed its answer on September 29, 2016, asserting that it was not the correct party, there was still time to achieve the proper notice on Wal-Mart Stores Arkansas, LLC, in the event that such notice had not already occurred. Law contends in her reply brief that an attempt at amending a complaint is not guaranteed to be successful, but she fails to offer any reason for not making such an attempt or to identify any obstacles to a successful amendment here. As Law notes, both entities had the same registered agent for service of process, whom she had successfully served with the original complaint shortly after its filing.
In allowing the relation-back in Bell , we noted that the plaintiff's mistake in naming the defendant in the original complaint was understandable. Law's mistake may also have been understandable given the fictitious-name registrations, although had both entities been discovered she could have named both as defendants. Nevertheless, her failure to act upon being informed of the proper defendant is not understandable. Wal-Mart Stores, Inc., did nothing to enhance a belief by Law that she had sued the proper party; instead, it informed Law of the proper party in its first pleading. See Rickenbacker v. Wal-Mart Stores, Inc. , 302 Ark. 119, 788 S.W.2d 474 (1990). Under these circumstances we cannot say that Wal-Mart Stores, Inc., was taking advantage of any confusion created by the similar fictitious names.
Because Law has not rebutted the proof offered by Wal-Mart Stores, Inc., showing that it owed no duty of care to her, we hold that it was not the proper party to sue and that summary judgment was appropriate.
Affirmed.
Vaught and Murphy, JJ., agree. | [
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RHONDA K. WOOD, Associate Justice
Appellant Carolyn Lawson appeals the circuit court's dismissal of her premises-liability suit against appellee Simmons Sporting Goods, Inc., for lack of personal jurisdiction. We affirm because Arkansas courts do not have jurisdiction to entertain Lawson's claims against Simmons.
I. Facts and Procedural Background
Simmons operates a retail-sporting-goods store in Bastrop, Louisiana. It is incorporated in Louisiana with its principal place of business in Louisiana. Simmons has never operated a store in Arkansas. However, Simmons advertises in Arkansas through promotional catalog inserts and display ads in Arkansas newspapers, promotional television ads, and online ads with the Arkansas Democrat-Gazette. It contracts with an Arkansas printing company to produce its print ads. Simmons also hosts a "Big Buck Contest," which awards a prize for the largest deer killed in Arkansas.
Lawson is a resident of Hamburg, Arkansas. In August 2012, she traveled with her daughter from Hamburg to Bastrop to attend Simmons's "Annual Tent Sale." Upon entering the store, she tripped on a rug in the foyer, fell, and broke her arm.
In March 2015, Lawson filed suit against Simmons in the Ashley County Circuit Court. Simmons moved to dismiss the case for lack of personal jurisdiction pursuant to Arkansas Rule of Civil Procedure 12(b)(2). In response, Lawson argued that personal jurisdiction existed because Simmons (1) advertised in Arkansas; (2) held an annual "Big Buck Contest" in Arkansas; and (3) used an Arkansas printing company to produce advertisements for its store. Following a hearing, the circuit court found that Arkansas lacked personal jurisdiction over Simmons and dismissed the case.
Lawson appealed to the Arkansas Court of Appeals, which reversed, holding that Simmons's contacts with Arkansas were sufficient to warrant personal jurisdiction over Simmons. Lawson v. Simmons Sporting Goods, Inc. , 2017 Ark. App. 44, 511 S.W.3d 883, cert. granted, judgment vacated , --- U.S. ----, 138 S.Ct. 237, 199 L.Ed.2d 2 (2017) (Mem.). We denied Simmons's petition for review. Simmons then filed a petition for writ of certiorari with the United States Supreme Court. The Supreme Court granted the petition, vacated the judgment of the court of appeals, and remanded the case for further consideration in light of its recent decision in Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty. , 582 U.S. ----, 137 S.Ct. 1773, 198 L.Ed.2d 395 (2017).
On remand, the court of appeals affirmed the circuit court's dismissal of Lawson's complaint for lack of personal jurisdiction. Lawson v. Simmons Sporting Goods, Inc. , 2018 Ark. App. 343, 553 S.W.3d 190. It concluded that because there was no affiliation between Arkansas and the underlying controversy, which the Supreme Court in Bristol-Myers requires, there was no specific personal jurisdiction over Simmons. Id. Lawson then petitioned this court for review, and we granted the petition. When we grant a petition for review, we consider the appeal as though it had originally been filed in this court. James Tree & Crane Serv. v. Fought , 2017 Ark. 173, 518 S.W.3d 678.
II. Standard of Review
We first clarify our standard of review on a motion challenging personal jurisdiction. Rule 12(b)(2) motions to dismiss for lack of personal jurisdiction are commonly founded on the parties' pleadings. However, the court may also consider matters outside the pleadings when ruling on a Rule 12(b)(2) motion. See, e.g. , Davis v. St. John's Health Sys., Inc. , 348 Ark. 17, 71 S.W.3d 55 (2002). In past cases, we have stated that consideration of facts beyond the pleadings converts a Rule 12(b)(2) motion to a Rule 56 motion for summary judgment. See, e.g. , Ganey v. Kawasaki Motors Corp., U.S.A. , 366 Ark. 238, 234 S.W.3d 838 (2006) ; Payne v. France , 373 Ark. 175, 282 S.W.3d 760 (2008) ; Hotfoot Logistics, LLC v. Shipping Point Mktg., Inc. , 2013 Ark. 130, 426 S.W.3d 448. And in those cases, we reviewed the ruling under the summary judgment standard of review. Id. We now conclude that this practice was incorrect.
Rule 12(b) does not provide for this conversion. Rule 12(b) requires that Rule 56 standards be applied to motions to dismiss for failure to state a claim under Rule 12(b)(6) when "matters outside the pleading are presented to and not excluded by the court." Ark. R. Civ. P. 12 (2018); Ark. R. Civ. P. 56. But Rule 12 does not prescribe summary-judgment treatment of jurisdictional challenges when a factual record is developed and considered.
In addition, there are fundamental reasons for treating a Rule 12(b)(2) and a Rule 12(b)(6) motion differently given constitutional issues involving whether a state can exercise jurisdiction over a nonresident. Converting a motion to dismiss on jurisdiction to summary judgment under Rule 56 has further ramifications.
[I]f the court has no jurisdiction, it has no power to enter a judgment on the merits and must dismiss the action. In addition, a dismissal for want of jurisdiction has no preclusive effect and the same action subsequently may be brought in a court of competent jurisdiction. A summary judgment, on the other hand, is on the merits and purports to have preclusive effect on any later action. The court's role on the two motions also is different. On a motion attacking the court's jurisdiction, the ... judge may resolve disputed jurisdictional-fact issues. On a motion under Rule 56 the judge simply determines whether any issues of material fact exist that require trial.
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure: Civil 3d § 2713, at 239-40 (1998).
This is the view taken by most federal and state courts that have considered the issue, including the Eighth Circuit. Osborn v. U.S. , 918 F.2d 724 (8th Cir. 1990). We adopt this prevailing position, and we overrule those cases that have taken a contrary position. See, e.g. , Ganey , 366 Ark. 238, 234 S.W.3d 838 ; Payne , 373 Ark. 175, 282 S.W.3d 760 ; Hotfoot Logistics, LLC , 2013 Ark. 130, 426 S.W.3d 448.
When personal jurisdiction is raised in a Rule 12(b)(2) motion to dismiss, a circuit court must consider whether the undisputed facts as pled establish personal jurisdiction. If the circuit court's jurisdictional ruling is based on the complaint alone, or on the complaint supplemented by undisputed facts evidenced in the record, our review is de novo. We determine whether the circuit court's application of the law is correct and, if the decision is based on undisputed facts, whether those facts are indeed undisputed. See Osborn , 918 F.2d at 730.
However, the circuit court may consider evidence outside the pleadings on a Rule 12(b)(2) motion. A Rule 12(b)(2) motion may be supported with affidavits or other documents. An evidentiary hearing with witness testimony may be conducted on the issue. In considering this evidence, no presumptive truthfulness attaches to the plaintiff's allegations as the plaintiff has the burden of proving that jurisdiction exists. Hawes Firearm Co. v. Roberts , 263 Ark. 510, 512, 565 S.W.2d 620, 621 (1978) ("It is, of course, a fundamental principle that the plaintiff has the burden of proving that a non-resident defendant has sufficient contacts with Arkansas to be sued in personam."). And the existence of disputed material facts cannot preclude the circuit court from evaluating for itself the merits of the jurisdictional claim. If the circuit court resolves disputed factual issues, we review its findings for clear error. John Norrell Arms, Inc. v. Higgins , 332 Ark. 24, 32, 962 S.W.2d 801, 805 (1998) (holding that "the trial court did not clearly err in finding that Higgins did not have minimum contacts with the State of Arkansas").
In this case, the circuit court concluded that it lacked personal jurisdiction without resolving any disputed factual issues. Indeed, when making its ruling from the bench, it stated, "[T]he facts are not in really dispute." Furthermore, the circuit court was not required to and did not make any credibility evaluations. Therefore, we review the circuit court's decision de novo.
III. Personal Jurisdiction
Arkansas law provides that its courts shall have personal jurisdiction to the maximum extent allowed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See Ark. Code Ann. § 16-4-101(A)-(B) (Repl. 2010). Thus, in determining whether the circuit court was authorized to exercise personal jurisdiction over Simmons, we must determine whether the exercise of jurisdiction comports with due-process limits. See Int'l Shoe Co. v. Wash. , 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Due-process requirements are satisfied when personal jurisdiction is asserted over a nonresident corporate defendant that has "minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Id. at 316, 66 S.Ct. 154 (cleaned up). Minimum contacts must be based on "some act by which the defendant purposefully avails" himself of the forum state "such that he should reasonably anticipate being haled into court there." Burger King Corp. v. Rudzewicz , 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).
Personal jurisdiction can be either general or specific. See Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011). Although Lawson initially alleged that Simmons was subject to both general and specific jurisdiction in Arkansas, she has abandoned her general-jurisdiction claim. Therefore, we limit our analysis to specific jurisdiction.
Specific personal jurisdiction concerns an "affiliation between the forum and the underlying controversy, principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation." Goodyear Dunlop , 564 U.S. at 919, 131 S.Ct. 2846 (cleaned up). The specific-jurisdiction analysis is confined to the adjudication of the issues "deriving from or connected with, the very controversy that established jurisdiction." Id. The focus of the specific-jurisdiction analysis is "the relationship among the defendant, the forum, and the litigation." Walden v. Fiore , 571 U.S. 277, 284, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014).
The Supreme Court recently reiterated its settled principles regarding specific jurisdiction in Bristol-Myers Squibb Co. , 582 U.S. ----, 137 S.Ct. 1773. In Bristol-Myers , a group of plaintiffs, including both California residents and nonresidents, brought a mass tort action against a pharmaceutical company, Bristol Myers Squibb Co. (BMS), in California. Id. at 1778. The plaintiffs asserted state-law tort claims for injuries they suffered after ingesting the drug Plavix. Id. BMS is incorporated in Delaware, headquartered in New York, and maintains operations in New York and New Jersey. Id. at 1777-78. It also has five research and laboratory facilities in California, but it did not develop, manufacture, label, package, or work on the regulatory approval for Plavix in California. Id. at 1778. The out-of-state plaintiffs were not prescribed the drug in California, did not purchase the drug in California, did not ingest the drug in California, and did not suffer injuries in California. Id.
The California Supreme Court held that BMS was subject to personal jurisdiction in California for the claims of the nonresident plaintiffs. Id. at 1778-79. Applying a "sliding scale approach," it concluded that "BMS's extensive contacts with California" permitted the exercise of specific jurisdiction "based on a less direct connection between BMS's forum activities and plaintiff's claims than might otherwise be required." Id. at 1779 (citing Bristol-Myers Squibb Co. v. Superior Court , 206 Cal.Rptr.3d 636, 377 P.3d 874, 889 (2016) ).
The United States Supreme Court granted certiorari and reversed. Id. at 1777. It explained that specific personal jurisdiction is proper only if the defendant's suit-related conduct, principally an activity or an occurrence that takes place in the forum state, creates a substantial connection between the cause of action and the forum. Id. Absent a connection between the forum and the specific claims at issue, there is no personal jurisdiction. Id. at 1781 (citing Goodyear Dunlop Tires Operations , 564 U.S. at 919, 131 S.Ct. 2846 (2011) ). Because insufficient contacts existed between California and the nonresidents' claims against BMS, California could not exercise specific personal jurisdiction over BMS. Id. at 1781-82. The Supreme Court also rejected California's sliding-scale approach, which it said "resembles a loose and spurious form of general jurisdiction." Id. at 1781. It explained that
[f]or specific jurisdiction, a defendant's general connections with the forum are not enough. As we have said, a corporation's continuous activity of some sorts within a state ... is not enough to support the demand that the corporation be amenable to suits unrelated to that activity.
Id. (internal quotation and citations omitted).
While this court had not adopted the sliding-scale approach, in prior cases we have endorsed the five-factor test to assess specific personal jurisdiction. See, e.g. , John Norrell Arms , 332 Ark. at 24, 962 S.W.2d 801 ) (citing Burlington Indus., Inc. v. Maples Indus., Inc. , 97 F.3d 1100 (8th Cir. 1996) ); see also Myers v. Casino Queen, Inc. , 689 F.3d 904 (8th Cir. 2012). Under the five-factor test, a court evaluating personal jurisdiction over a defendant must consider (1) the nature and quality of the contacts with the forum state; (2) the quantity of those contacts; (3) the relationship of those contacts with the cause of action; (4) the forum's interest in providing a forum for its residents; and (5) the convenience of the parties. Id. Because Bristol-Myers emphasized that specific jurisdiction must arise out of or relate to the defendant's contacts with the forum state-principally an activity or occurrence that takes place in the forum state-we cannot continue to utilize a test that implies that factor three has the same weight as the other four factors.
Therefore, we conclude that the five-factor test is no longer applicable. Instead, the following criteria are necessary for personal specific jurisdiction: (1) the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state; (2) the cause of action must arise from or relate to the defendant's contacts with the forum state; and (3) the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of personal jurisdiction over the defendant reasonable. See, e.g. , Ficarelli v. Champion Petfoods USA, Inc. , No. 3:18-CV-00361, 2018 WL 6832075, *3 (M.D. Tenn. Dec. 28, 2018) ; Southern Mach. Co. v. Mohasco Ind., Inc. , 401 F.2d 374 (6th Cir. 1968).
Considering the foregoing, the circuit court could not exercise personal jurisdiction over Simmons in this matter. Certainly, Simmons advertised and conducted promotional activities in the state, but that alone is not sufficient for personal jurisdiction. The cause of action did not arise from or relate to Simmons's contact with Arkansas. Here, the controversy-Lawson's trip and fall-undisputedly occurred in Louisiana. Any alleged negligence related to this incident in Louisiana did not arise out of or relate to Simmons's contacts with Arkansas. "What is needed-and what is missing here-is a connection between the forum and the specific claims at issue."
Bristol-Myers Squibb Co. , 137 S.Ct. at 1781. Without this fundamental connection, we cannot exercise specific personal jurisdiction over Simmons in this matter. We therefore affirm the circuit court's dismissal for lack of personal jurisdiction.
Affirmed; court of appeals opinion vacated.
Baker, J., concurs. | [
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ROBERT J. GLADWIN, Judge
Appellants, George Prange, as vice president and trust officer of Bank of the Ozarks and guardian of the estate of Khyree Martin, a minor, and the estate of Khyree Martin (collectively, the Estate) appeal the March 28, 2018 order of the Pulaski County Circuit Court awarding full reimbursement of the Medicaid lien in the sum of $ 260,209.99 in favor of appellee Arkansas Department of Human Services (DHS). The Estate argues that the circuit court erred in its determination of what portion of a tort settlement for the injured minor should be available to satisfy DHS's lien for past medical expenses consistent with the holdings in Arkansas Department of Health & Human Services v. Ahlborn , 547 U.S. 68, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006), and Wos v. E.M.A. ex rel. Johnson , 568 U.S. 627, 133 S.Ct. 1391, 185 L.Ed.2d 471 (2013), and pursuant to Arkansas Code Annotated section 20-77-315(a) and (b) (Repl. 2014). We affirm.
I. Facts and Procedural History
It is undisputed that Khyree was profoundly brain injured at birth. Through his mother, he sued the doctor and the hospital for negligently causing his injuries and reached separate compromised settlements with both the doctor and the hospital totaling $ 4,450,000.
DHS sought to enforce the full amount of an undisputed $ 260,209.99 lien for past medical expenses that it had paid on Khyree's behalf against the proceeds of the settlement, but the Estate sought to have the lien reduced proportionally to be consistent with the percentage the settlement represented Khyree's alleged total damages. The Estate requested that the circuit court allocate or apportion the settlement funds and hear evidence and argument regarding both parties' positions, which DHS opposed.
A hearing was held by the circuit court during which testimony was taken and documents were introduced setting forth what the Estate considered to be Khyree's full damages. The evidence indicated that Khyree is profoundly brain damaged and suffers from a form of cerebral palsy. He is unable to walk, talk, or see, and he is fed through a feeding tube. Khyree is unable to tend to any of his own needs and likely will require twenty-four-hour-a-day care for the rest of his life. The Estate introduced what it claims is the minimum cost to provide future care for Khyree, reduced to present value, of $ 25,382,130.72. Evidence was also introduced as to the Estate's estimate for the minimum loss of capacity to work and of fringe benefits to Khyree, reduced to a present value, of $ 795,753.52. The Estate submitted that a reasonable jury verdict in favor of Khyree for other damages including pain and suffering and mental anguish is $ 6,000,000. Evidence was also submitted that Medicaid, through DHS, paid $ 260,209.99 for past medical expenses for Khyree and that the amount of that undisputed lien would have been presented as evidence of past medical expenses if the case had proceeded to trial. Accordingly, the Estate submitted that the total damages suffered by Khyree are, at minimum and reduced to present value where appropriate, $ 32,438,094.23; but there was no stipulation by the parties with respect to that amount or evidence as to an allocation of the $ 4,450,000 settlement.
The Estate noted that it settled the case for roughly 13 percent of its estimated value of the total damages in order to avoid the risk of (1) a defense verdict or a verdict lower than the estimated damages and (2) the larger portion of fault potentially being allocated to the physician who was sued rather than the hospital. The Estate asked DHS to compromise by reducing its lien to the same percentage, and when it would not, the Estate asked the circuit court to direct DHS to do so.
The circuit court denied the Estate's request and enforced DHS's lien in full in its order filed on March 28, 2018. According to the circuit court, the value of the Estate's cause of action is $ 4,450,000, the amount the Estate chose to settle the case for, rather than the $ 32,428,094.23 that the Estate speculated are the actual damages suffered by Khyree and the likely jury verdict had Khyree prevailed at trial. The potential value of the case as explained by the Estate was deemed "not reliable" by the circuit court and was not accepted. The circuit court found that the Estate had failed to meet its "burden of showing the amounts recovered by way of settlement were for damages other than the medical care already received by Khyree." The Estate filed a timely notice of appeal on April 4, 2018.
II. Standard of Review
The parties have acknowledged that the Ahlborn and Wos cases allow, but do not require, a ratio-based determination of the lien amount to be paid as reimbursement to Medicaid. Accordingly, we hold that the issue before us-whether the circuit court's factual findings of the ultimate value of the case and how much to reimburse Medicaid for past medical expenses-is a question of fact subject to clear-error review. See Hartness v. Nuckles , 2015 Ark. 444, at 4, 475 S.W.3d 558, 562 (citing Ark. R. Civ. P. (52)(a) ). A finding is clearly erroneous when, "although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed." Middleton v. Ark. Dep't of Human Servs. , 2019 Ark. App. 97, 572 S.W.3d 410. Disputed facts and determinations of credibility of witnesses are within the province of the fact-finder. Doran v. Ark. Dep't of Human Servs. , 2014 Ark. App. 505, 442 S.W.3d 868.
III. Discussion
Victims of wrongdoing by others often incur medical expenses that are paid by Medicaid. When a victim receives payment from the wrongdoer through a civil lawsuit-or through payment obtained without filing a lawsuit-the agreement between the State of Arkansas and the federal government requires that DHS, as the state agency in charge of Medicaid, seek reimbursement for the medical expenses paid on behalf of the victim from the proceeds of the recovery from the wrongdoer. See Ahlborn , 547 U.S. at 275-77, 126 S.Ct. 1752 (citing 42 U.S.C. §§ 1396a(a)(25)(A), (H), 1396k(a) ).
Victims often incur damages other than past medical expenses paid by Medicaid that include lost wages, future medical treatment, pain and suffering, and lost future earning capacity. See AMI-Civil 2206, 2204, 2208, 2207. Settlements do not always allocate the proceeds among those various elements of damages; rather, the wrongdoer often pays a lump sum to the victim. The United States Supreme Court, through Ahlborn and Wos , has held that DHS may not recover its past medical payments from the portion of the settlement that compensates the victim for these other damages. See also Ark. Code Ann. § 20-77-315(a) - (b). The question before us is how to ascertain the amount that constitutes the award for past medical expenses contained within a lump-sum settlement that did not designate the amounts allocated to the various elements of damages.
Ahlborn does provide that parties may agree to a proportional allocation, but it neither requires nor recommends that they do so. The facts in Ahlborn are distinguishable in that there was no question presented regarding any particular allocation method. Unlike the case before us, the Ahlborn parties, rather than the court, determined by stipulation the proportional-allocation method used to compute repayment to DHS on the facts of that case. The parties also stipulated as to the total value of damages, compared that amount to the gross settlement, and agreed to reduce damages across the board by the same percentage, as though Ms. Ahlborn had prevailed on her legal argument.
For purposes of this appeal, the relevant part of the Ahlborn holding is that, to the extent Arkansas's laws allowed assignment of the nonmedical portion of a recipient's settlement for repayment of past medical expenses, those laws allowed a lien on the recipient's "property" and therefore violated U.S.C. § 1396p(a). See Ahlborn , 547 U.S. at 272, 274-75, 284-85, 126 S.Ct. 1752. The only restriction that the Ahlborn Court placed on DHS's repayment is that DHS cannot infringe on the nonmedical damages portion of a recipient's settlement, and the Ahlborn court recognized that each state remains free to determine its own method of allocation in tort cases. See Ahlborn , 547 U.S. at 288 n.18, 126 S.Ct. 1752.
Nor does Ahlborn require an automatic reduction-or any reduction-in the amount of Medicaid's claim. If the part of the settlement that a court allocates for medical expenses is sufficient to pay DHS's claim in full, then DHS is entitled to full repayment of its claim. See Ark. Code Ann. § 20-77-315(a) - (b). Accordingly, we hold that the circuit court did not err when it found that Ahlborn does not require it to make a ratio-based determination of the lien amount to be reimbursed to DHS.
The Estate next argues that in order to determine the portion of a settlement representing past medical expenses from which DHS may recover requires isolating the portion of an award or settlement attributable to each element of damages. See Wos , supra. In Wos , under factual circumstances similar to this case, North Carolina's equivalent of DHS, the North Carolina Department of Health and Human Services (DHHS), paid $ 1.9 million in medical care on behalf of the victim. The victim's parents sued the doctor and the hospital and eventually settled the suit for $ 2.8 million. DHHS attempted to collect the $ 1.9 million in past medical expenditures under a post- Ahlborn state statute that created an irrebuttable presumption that past medical expenses represented up to one-third of any recovery from a wrongdoer.
The Wos court held that the statute violated both the federal anti-lien statutes and the principle in Ahlborn that states may recover only their medical expenses paid from that portion of the settlement. The Wos Court held that the defect in North Carolina's statute was that "it sets forth no process for determining what portion of a beneficiary's tort recovery is attributable to medical expenses. Instead, North Carolina has picked an arbitrary number-one-third-and by statutory command labeled that portion of a beneficiary's tort recovery as representing payment for medical care." Wos , 568 U.S. at 636, 133 S.Ct. 1391.
The Court then analyzed that an allocation may be made either through a stipulated proportional allocation between parties like in Ahlborn or an allocation by a judge or a jury following a trial on the merits, after which the lienholder may collect only from the portion of the settlement or award allocated to past medical expenses. See id. , 568 U.S. at 638, 133 S.Ct. 1391. The difficulty comes when the settlement is not subject to a stipulation and does not otherwise allocate the recovery to the various elements of damages.
The issue in Wos -the validity of the North Carolina law that imposed an irrebuttable presumption that permitted the State to recover the greater of the full amount of its claim or one-third of the settlement-is distinguishable from both Ahlborn and this case. See Wos, supra. Because North Carolina's law provided no means for a Medicaid recipient to rebut the one-third presumption, the Wos Court struck down the North Carolina law. See Wos, supra. Although Wos did speak generally to the requirement of a hearing when the parties cannot agree on allocation, it did not impose a specific method for determining the reimbursement owed to Medicaid. See id. at 634, 133 S.Ct. 1391. Because the Arkansas laws governing DHS's recovery from third-party settlements impose no such presumption of any type, the application of Wos is limited.
We note that an Arkansas federal court has recently applied the Ahlborn and Wos approach of conducting a hearing and proportionally allocating damages. See Ricks v. Ark. Dep't. of Human Servs. , No. 4:17CV00026 (PSH) 2018 U.S. Dist. LEXIS 97526 (E.D. Ark. June 11, 2018). In that case, the victim suffered a severe brain injury at birth for which DHS paid $ 115,845.62 through Medicaid for medical expenses. The victim's parents sued the healthcare providers and settled the case for $ 1,000,000. DHS sought to recover its entire past payments from the settlement. Similar to this case, the parents and the trustee of the victim's estate sued DHS in federal court seeking a proportional reduction in DHS's recovery.
A hearing was conducted at which evidence was received regarding the extent of the victim's injuries and the monetary damages caused by these injuries. Id. at 8-9. The victim's future needs were projected in a life-care plan and reduced to a present value of $ 8,357,873.73 over the victim's life. Lost earning capacity and lost benefits were valued at $ 1,060,748.53, and pain and suffering and mental anguish were valued at $ 3,000,000. An attorney experienced in medical-negligence cases explained that the case was reasonably settled for $ 1,000,000 even with these much higher damages calculations for various reasons.
The Ricks court was tasked with determining the amount of the unallocated settlement from which DHS could seek reimbursement because the parties had not stipulated to the portion of the settlement representing past medical expenses. Id. at 15 (citing Wos , supra ; Reyes v. Hickenlooper , 84 F.Supp.3d 1204 (D. Colo. 2015) ). The Ricks court then utilized the Ahlborn proportional-allocation-model approach and applied it, explaining that the plaintiffs presented expert testimony on the issue of the reasonable value of the case, assuming a win for the plaintiffs.
The Estate argues that this is the correct approach to identifying the portion of the unallocated settlement in this case from which DHS may recover past medical payments. The Estate argues that a judicial hearing should first identify the full extent of damages, the reasons the case was settled for less than that amount, and the allocation of the settlement funds among the various elements of damages. Further, all elements of damages then should be reduced in the same proportion that the settlement falls short of the total estimated damages, including DHS's recovery being limited to the same extent that the plaintiff's overall recovery is reduced.
The Estate claims that Ahlborn , Wos , Ricks , and Arkansas Code Annotated section 20-77-315(a) - (b) require that the circuit court preside over a hearing at which DHS's reimbursement for past medical payments is litigated to identify what portion of an unallocated settlement is for past medical payments because DHS's recovery is limited to that portion of the settlement that compensates for past medical expenses. The Estate claims that the circuit court failed to do so; instead, it merely decided that the value of the case was the settlement amount because that is what the Estate accepted. The Estate further submits that pursuant to Wos , 568 U.S. at 639, 133 S.Ct. 1391, the circuit court was required to account for the reasonable value of the entirety of Khyree's injury when allocating the settlement funds, rather than simply deciding that the "value" of the case was the settlement amount received. The Estate also claims that the circuit court was required to analyze the settlement in light of "litigation realities" rather than ignoring its explanation that the likelihood a jury would allocate substantial fault to the doctor who had only $ 1 million in coverage justified a lesser settlement. The Estate alleges that the circuit court ignored its explanation that obtaining a plaintiff's verdict at all was highly risky. Finally, the Estate claims that the circuit court was required to allocate the settlement funds proportionally consistent with the percentage the settlement represents total damages pursuant to Ahlborn and Wos .
We disagree and hold that the circuit court did not clearly err by rejecting the Estate's proposed valuation of the damages, in determining that the value of the case is $ 4,450,000, and by awarding DHS $ 260,209.99 for payment of past medical expenses.
Unlike Ahlborn , there was no stipulation of the value of Khyree's claim; however, the parties did stipulate that DHS's lien was $ 260,209.99. Based on the evidence presented during the bench trial, the circuit court rejected the Estate's proposed valuation of the case and found the expert testimony that the case was worth $ 32,438,094.23 not credible and unreliable. The Estate's counsel acknowledged that he settled this case for the above-mentioned sum because this case had "risks," and DHS acknowledges that there are inherent risks in any trial. The circuit court noted that the "[Estate] could have gone to trial and received nothing, or $ 32,000,000 or $ 4,450,000, or any number one could conceive. [The Estate's] counsel did what experienced, skilled trial attorneys do: they evaluated their case and came to the conclusion it was worth $ 4,450,000."
Moreover, the medical bills paid by Medicaid were used to determine the value of the Estate's case. As the circuit court noted in its ruling, "[The Estate] settled the claim knowing of this Medicaid lien and the amount of the lien. [The Estate] obtained settlement utilizing the monies paid by Medicaid as a factor in determining the worth of [the Estate's] case." Furthermore, the record reflects that there was a combined total of $ 11,000,000 in insurance-policy limits available. The circuit court's factual findings that the Estate's valuation of the case as $ 32,438,094.23 was not credible and that the actual value of the case is $ 4,450,000 are not reversible error.
The Estate's valuation is predicated on its subjective valuation of damages that might have been awarded. This would require the court to assume that its proof would have survived various motions to dismiss, for summary judgment, and for directed verdict in order for the case to make it to a jury and for the court to further assume that the jury would have awarded the speculative amount claimed as full compensation for damages. The Estate's projections of an award had the case gone to trial were speculative and would have required the circuit court to consider information and scenarios that had not occurred and might not occur.
As previously noted, "[t]he standard of review on appeal is whether the circuit court's findings were clearly erroneous or clearly against the preponderance of the evidence." Hartness , 2015 Ark. 444, at 10, 475 S.W.3d at 565. Great weight is given to the circuit court's personal observations. Wilson v. Ark. Dep't of Human Servs. , 2015 Ark. App. 666, at 10, 476 S.W.3d 816, 823. "Disputed facts and determinations of the credibility of witnesses are within the province of the fact-finder." Hartness , 2015 Ark. 444, at 10, 475 S.W.3d at 565.
We also note that the proportional approach proposed by the Estate overlooks the certainty and objectivity of past medical damages. Here, the medical bills paid by Medicaid are the only certain and quantifiable part of the settlement. Even the Estate's trial counsel acknowledged that at a minimum, the Estate would have asked for what Medicaid had paid. The proportional approach also ignores the policy considerations inherent in Medicaid's recovery laws, which are based on the complementary premises that (1) a tortfeasor (and no other party) should be liable for paying for the harm that the tortfeasor caused, and (2) Medicaid is the payer of last resort. See Ahlborn , 547 U.S. at 291, 126 S.Ct. 1752 ; Ark. Code Ann. § 20-77-101. Additionally, the laws authorizing DHS's repayment from a Medicaid recipient's third-party settlement were enacted to protect the integrity of the Medicaid program by preventing a Medicaid recipient from recovering payment for medical costs that he or she never paid in the first place.
Accordingly, the circuit court did not err in awarding DHS the full $ 260,209.99 for the past medical bills paid by Medicaid. This award represented 5.8 percent of the total $ 4,450,000 the Estate recovered in its lawsuit. The only restriction that the Ahlborn court placed on DHS's repayment is that DHS cannot infringe on the nonmedical-damages portion of a recipient's settlement. See Ahlborn , 547 U.S. at 284-85, 126 S.Ct. 1752. When the circuit court awarded full repayment of the past medical bills paid by Medicaid, the circuit court, in effect, determined that 5.8 percent of the total $ 4,450,000 recovery represented the past-medical-expenses portion of the settlement. It was the Estate's burden to prove the amount of the settlement that constituted non-past medical expenses, and the circuit court specifically found that it failed to do so. The Estate does not claim any of the amount awarded to DHS infringes on a nonmedical-damages portion of the settlement; thus, it cannot claim it was awarded in error.
Affirmed.
Vaught and Hixson, JJ., agree.
St. Vincent Infirmary Medical Center settled the claim for $ 3,500,000; and Betty L. Orange, D.O., and Just for Women Health Center, P.A., settled the claim for $ 950,000.
The lien amount constitutes 5.85 percent of the total settlement.
The predominant factor is the estimated nursing care Khyree will always need.
The doctor carried only $ 1,000,000 in liability insurance. | [
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BART F. VIRDEN, Judge
Lyndon Tyler Bundy challenges the Woodruff County Circuit Court's decision to award Brooklynn Gage Womble primary custody of the parties' son, BW (born 6/6/14). On appeal, Bundy argues that the circuit court's decision is contrary to the best interest of the child and that the circuit court erred in denying his request for a new trial. We affirm.
I. Facts
On February 1, 2017, Bundy filed a petition for paternity in which he argued that he was the biological father of BW, and it would be in BW's best interest for the court to award him primary custody of BW with visitation granted to the mother. Bundy also asked the circuit court to order Womble to pay child support and to change BW's last name to Bundy. On September 6, 2017, the circuit court held a hearing on the matter during which Bundy described his and Womble's relationship history. Bundy explained that when he was twenty years old and Womble sixteen years old, they were in a relationship that resulted in Womble's becoming pregnant with BW. By the time Womble gave birth, the parties had broken up and were not getting along. Bundy testified that although a paternity test shows he is BW's father, Womble had not allowed his name to appear on the birth certificate because she did not like him. Bundy also testified that Womble had allowed liberal visitation with BW since his birth and that at the time of the hearing his visitation with BW was around "fifty-fifty." Bundy explained that if Womble had other plans, wanted more money, or was "mad" she would withhold visitation. Bundy testified that there was no court order for visitation.
Bundy contended that he was concerned about BW's living situation with his mother in McCrory, namely that Womble, BW and Womble's other child lived in a two-bedroom apartment with Womble's boyfriend, her sister, and her sister's child. Bundy asserted that Womble and her boyfriend had a contentious relationship and frequently argued, which caused BW to be angry, nervous, and reluctant to leave with his mother when she came to pick him up. Bundy also expressed concern that he had noticed that BW was dirty and had a bad odor when he picked BW up from daycare.
By contrast, Bundy described his three-bedroom home in Bradford, which is about a forty-minute drive from McCrory. Bundy explained that at his home BW would have his own bedroom, toys, a television in his bedroom, and a large yard. Bundy testified that he lives very close to his grandmother, who watches his daughter while he is at work, and that she would also watch BW if he had primary custody. Bundy stated that he works from 7:30 a.m. to 3:30 p.m. Monday through Friday, with twelve holidays off a year.
Bundy testified that he had not been ordered by the court to pay child support but that he bought clothes, food, diapers, and any other supplies that BW needed. He paid for BW's daycare until Womble was able to get free childcare, and after that, he paid Womble $150 every two weeks. In December 2016, Bundy ceased paying $150 to Womble and instead bought things that BW needed. Bundy testified that at times he had helped Womble pay bills and her car payment "because BW came first."
On cross-examination, Bundy denied that Womble had ended their relationship when she was seven months pregnant because of his infidelity. Bundy denied that he had referred to a former girlfriend as his "mess around girl," and he admitted that his wife had been pregnant when they married. Bundy denied having cheated on his wife. Bundy admitted that he used a racial slur during a disagreement with Womble about how she had dressed BW.
Bundy explained to the court that he wanted primary custody to ensure that BW was "more taken care of." Bundy testified that he believed Womble should have visitation and "be a good mom to him and put him above work and everybody else. I want her to prioritize him, as I do." Bundy testified that he did not believe that BW "gets the full amount of attention" living with Womble because BW "wants to be up in your lap, in your face, wants you to play toys with him in the floor[.]"
Bundy's mother, Delena Little, testified that she often keeps BW in her home and has a very close relationship with him. Little stated that she had been concerned about BW because when he becomes frustrated or things do not go right, he falls to the floor and bangs his head. Little also stated that she had seen Womble smack BW's hand when he was ten months old; and when BW was one year old, she had spanked him. Little testified that when BW was fourteen months old and had refused to sit in the barber's chair, she saw Womble jerk BW's arm and spank him. Little also asserted that on one occasion Womble's apartment had been infested with fleas and that Womble "had to set off bombs to get rid of them. BW was covered in flea bites." Little explained that when she picks BW up from daycare he is "filthy" and "it's normal to pick him up, take him home and bathe him." Little also conceded that children get dirty "at the drop of a hat." Little stated that Womble had allowed her to be in BW's life without a court order "because it fit her schedule and she had other things that I believe were more important to her than BW." Little also stated that Womble "tricked [Bundy] into getting her pregnant."
Womble moved for dismissal based on a lack of evidence that it was in the child's best interest to award primary custody to Bundy, and the circuit court denied the motion.
Womble testified that she had been a junior in high school when she gave birth to BW. Womble explained that she did not put Bundy's name on the birth certificate because he had not seemed "like he cared that he was going to have a baby" and that he had not attended any of her obstetric appointments. Womble testified that she would like BW's last name to be changed to Bundy and for Bundy's name to appear on the birth certificate because "Lyndon deserves that because Lyndon is a very good dad."
Womble stated that during high school, she earned a college scholarship for softball but that after BW was born, she gave up playing sports and had to "study ten times harder" because she was up late at night with BW. Womble explained that she quit playing basketball and softball, and she finished high school while she raised BW. She testified that she began working at Subway during high school to provide for BW and that she had continued to work at Subway full time after she graduated. Womble stated that she had been "one point away" from being accepted into a nursing program and that she planned to try again and further her education. Womble testified that she worked forty hours a week from 8:00 a.m. to 4:00 p.m. at Subway and that about two weeks out of the month she worked around three to five hours in overtime. Womble that she was generally off on the weekends, but if she had to work, her boyfriend or her sister watched BW.
Womble testified that she allowed visitation with Bundy without a court order for visitation because "I think it is very important for him to know and have a relationship with his father.... I did that voluntarily. I tried to put aside whatever differences the two of us had." Womble explained that Bundy "likes to control things ... but he, you know, wants it his way or the highway." Womble denied that she had ever withheld visitation from Bundy to punish him.
Womble testified that she had heard the testimony regarding BW banging his head, and she denied having caused it. Womble stated that she and her sister share an apartment with her own two children and her sister's oldest child. She explained that she was temporarily helping her sister and that her sister was looking for another place to live. Womble clarified that her boyfriend, who is the father of her younger child (MW), had moved out because she did not want the children to be around the arguing that occurred when he lived there.
Womble agreed with Little's testimony that she had swatted BW's hand when he was ten months old and that she spanked him on the bottom; however, she stated that she had never abused BW or yanked his arm. Womble explained that she had talked to Bundy about "getting him on the same discipline level with me, and he never did. They don't. They don't discipline."
Womble explained that once, the family dog had gotten loose and had brought fleas into the house when he returned. When Womble noticed a few small flea bites on BW's ankles, she took care of the problem the next day, and it had never occurred again. Womble agreed that sometimes BW becomes dirty but that is normal, and she bathes him and washes his clothes. Womble admitted that she is busy with two kids and working full time and that
it would not surprise me if there was a stain on his shirt, or now the dirt under his toenails, it's not like he didn't have a bath the night before. I'm not going to pick at his toenails at 8:30 in the morning before I take him to daycare ... I mean, sometimes in the morning he'll go outside and play in the dirt[.] ... I mean like it's in a matter of minutes. They can get dirty just like that.
Regarding the issue of child support, Womble reiterated much of Bundy's testimony. Womble testified that for the first six weeks of BW's life, Bundy paid her $150 in child support every two weeks. When BW began attending daycare at six weeks, Bundy paid for daycare. Womble stated that she when she obtained free daycare, Bundy had resumed paying her $150 every two weeks until December 2016 when he married. In December 2016, Bundy ceased paying Womble any support; instead he paid for clothing, food, and other things BW needed. Womble testified that when she asked for monetary support, Bundy told her that "MW's child support could help me." Womble clarified that sometimes Bundy asked her if she wanted him to get anything for BW and that if BW did not need anything at that moment she would decline his assistance.
Deanna George, Womble's mother, testified that she believes her daughter is a very good mother. George testified that Womble had done everything for BW when he was an infant and that her daughter would not let her get up with BW in the night, even though Womble was working and going to high school. George explained that Womble told her that BW was her responsibility, and she testified that Womble gave up playing high school sports to take care of BW. George stated that Womble regularly bathes BW and that Womble and BW have a close bond. George also asserted that Womble appropriately disciplines BW when he needs it. George characterized Bundy as controlling and manipulative and that "[i]f something isn't done exactly the way he thinks it should be, it's completely wrong and terrible." After the testimony and closing arguments the circuit court took the matter under advisement, and the hearing was adjourned.
On September 18, 2017, Bundy moved for a new trial based on newly discovered evidence. Bundy asserted that when he picked BW up from daycare on September 15, he noticed a "large wound" on BW's scalp and immediately took BW to the doctor. Bundy attached photocopies of pictures of the cut and a printout of a text Womble sent to him in which she explained that she had accidentally hit BW on the head with the car door as she closed it. Bundy also attached the examining physician's report stating that BW had a "half-inch lesion" without bruising and that the cut required two staples to close. Bundy asserted that Womble had withheld vital information from him and had failed to obtain medical care "for the injury she caused." The circuit court did not rule on the motion.
On October 2, 2017, the circuit court entered an order in which it determined that Bundy established paternity as the biological father, that BW's surname shall be changed to Bundy, and that Bundy's name shall be added to the birth certificate. The circuit court awarded primary custody to Womble and ordered Bundy to pay $213 in child support on a biweekly basis. The circuit court found that due to the distance between the parties' residences and their inability to cooperate, joint custody is not in the best interest of the child.
In its order, the circuit court specifically found that Womble was a credible witness. The circuit court also made extensive factual findings to support its custody determination, and the relevant findings are as follows. In 2016, the relationship between Womble and Bundy deteriorated, and the parties began to have increased conflict regarding parenting BW. In February 2017, Bundy filed a petition for paternity. The circuit court found that Womble had allowed liberal visitation with BW without a court order and that Bundy had provided financial support also without a formal order. For a period of time, Bundy had provided direct funds to Womble, and he had paid for BW's daycare when it was not provided free of cost. Bundy provided clothing, wipes, diapers, food, and toys as well; however, when he married in December 2016, Bundy ceased providing funds for BW. Beginning in December 2016, Bundy continued to contact Womble to offer to purchase needed items for BW. Bundy had family support such that when BW was in his care, BW did not require daycare. Bundy lives in a three-bedroom home that he shares with his wife and daughter. BW has his own room, toys, and furniture at Bundy's home. The court acknowledged the testimony that BW had been dirty and wearing dirty clothes when he left Womble's home. The court also found that Bundy had belittled Womble for the way BW was dressed, including having made a racial slur. The circuit court found that Womble had given birth to Bundy's child when she was sixteen years old and Bundy was twenty years old and that Bundy had been more interested in romantic pursuits than he was the birth of his child. The circuit court found that Womble had graduated from McCrory High School while caring for BW and had been forced to give up school sports to be BW's primary caretaker. The court noted that although Womble lived with her mother after BW's birth, Womble insisted that she assume all responsibility for her child, including getting up in the middle of the night, changing diapers, and doing "all things necessary to make sure the child was taken care of." The circuit court found that Womble had maintained steady employment since BW's birth, that she had applied to nursing school, and that she shared an apartment with her sister and her sister's child until they could find other housing.
Bundy timely filed his notice of appeal.
II. Standard of Review
In custody matters, this court considers the evidence de novo and does not reverse unless the circuit court's findings of fact are clearly erroneous.
Burr v. Burr , 2015 Ark. App. 640, at 6, 476 S.W.3d 195, 198. A finding is clearly erroneous when, although there is evidence to support it, the court is left with a definite and firm conviction that the circuit court made a mistake. Id. Because the question of whether the circuit court's findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the circuit court to evaluate the witnesses, their testimony, and the child's best interest. Grantham v. Lucas , 2011 Ark. App. 491, at 4, 385 S.W.3d 337, 340. There is no other case in which the superior position, ability, and opportunity of the circuit court to observe the parties carries a greater weight than one involving the custody of minor children. Fox v. Fox , 2015 Ark. App. 367, at 6, 465 S.W.3d 18, 22. The best interest of the children is the polestar in every child-custody case; all other considerations are secondary. Id. We have held that the fact that a parent has been the child's primary caregiver is relevant and worthy of consideration in determining which parent should be granted custody. Thompson v. Thompson , 63 Ark. App. 89, 974 S.W.2d 494 (1998).
III. Points on Appeal
For his first point on appeal, Bundy argues that the circuit court's finding that it is in BW's best interest to award Womble primary custody is not supported by the evidence. Specifically, Bundy argues that Womble's apartment is too crowded, that sometimes her boyfriend lives with them, that she had used corporal punishment to discipline BW, that she had not properly cared for BW's hygiene, that she worked forty to forty-five hours a week, and that she had to put BW in daycare while she worked. By contrast, Bundy asserts that he has a better home environment, that he is more careful regarding BW's cleanliness, and that his grandmother can watch BW while he works. Bundy's argument is not well taken, and we affirm.
On our de novo review, we hold that the circuit court did not clearly err in finding that it was in BW's best interest to be placed in the primary custody of his mother. Bundy, Womble, and the testifying witnesses offered conflicting testimony regarding Womble's and Bundy's home environments, BW's hygiene, parental-discipline methods, relationship history, and family stability. Essentially, Bundy asks this court to reweigh the evidence, which it cannot do. Wilhelm v. Wilhelm , 2018 Ark. App. 47, 539 S.W.3d 619. Conflicts in the testimony are for the circuit court to resolve, and we will defer to the circuit court's superior position to judge and determine the credibility of witnesses. Richardson v. Brown , 2012 Ark. App. 535, at 8, 423 S.W.3d 630, 635. In light of the circuit court's extensive findings and the specific finding that Womble had credibly testified, we are not left with a definite and firm conviction that the circuit court erred in rejecting Bundy's request for primary custody, and on this point we affirm.
Bundy also argues that the circuit court erred in denying his motion for a new trial under Arkansas Rule of Civil Procedure 59(a)(7). He is incorrect.
A motion for new trial under Ark. R. Civ. P. 59 is addressed to the discretion of the circuit court. Jones v. Double "D" Props., Inc. , 352 Ark. 39, 48, 98 S.W.3d 405, 410 (2003). Arkansas Rule of Civil Procedure 59(a)(7) allows the circuit court to grant a new trial when the substantial rights of a party are materially affected based on newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial. The applying party is required to support the motion with affidavits showing the truth of the newly discovered evidence.
Ark. R. Civ. P. 59(c). A new trial based on newly discovered evidence is not a favorite remedy; to prevail on a motion pursuant to subsection (a)(7), the moving party must show that the evidence would probably have changed the result of the trial. Lee v. Lee , 330 Ark. 310, 312, 954 S.W.2d 231, 233 (1997). In determining whether the evidence asserted as the basis for this ground is to be regarded as previously discoverable and whether sufficient diligence was used, the circuit court may exercise discretion, which will not be reversed absent abuse.
It is clear that the circuit court received the new information regarding the cut on BW's scalp on September 18, 2017, about two weeks before the decision was entered on October 2, 2017. Bundy argues that the circuit court erred by failing to consider the new evidence; however, the new information was submitted to the circuit court before the opinion was entered. Furthermore, the circuit court was well within its province to find Bundy's new evidence unpersuasive. The fact that new information has been discovered that might merely impeach or otherwise test the credibility of a witness is not sufficient reason to warrant a new trial. Id. Accordingly, we hold the trial court did not abuse its discretion in denying Bundy's motion.
Affirmed.
Harrison and Klappenbach, JJ., agree.
Throughout the hearing, there was testimony from several witnesses regarding Bundy's decision to change his surname from "Little" to his maternal grandfather's surname "Bundy" when he was around 18 years old. Witnesses for Bundy testified that his decision to change his name had nothing to do with an argument with his father, while witnesses for Womble testified that Bundy changed his name because had been angry with his father for reprimanding him when they were working together at his father's business. | [
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N. MARK KLAPPENBACH, Judge
Ordean Taylor appeals the decision of the Arkansas Board of Review (Board) denying her unemployment benefits upon finding that she was discharged for misconduct in connection with the work. We hold that substantial evidence does not support the Board's finding of misconduct under Arkansas unemployment-compensation law. Therefore, we reverse and remand.
We review the Board's findings in the light most favorable to the prevailing party and affirm the Board's decision if it is supported by substantial evidence. Jones v. Dir. , 2015 Ark. App. 479, 470 S.W.3d 277. Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. Even when there is evidence upon which the Board might have reached a different decision, the scope of our review is limited to a determination of whether the Board reasonably could have reached the decision it did based on the evidence before it. Id. Our function on appeal, however, is not merely to rubber stamp decisions arising from the Board. Id.
A person shall be disqualified from receiving unemployment benefits if it is determined that the person was discharged from his or her last work for misconduct in connection with the work. Ark. Code Ann. § 11-10-514(a)(1) (Supp. 2015). Misconduct, for purposes of unemployment compensation, involves (1) disregard of the employer's interest, (2) violation of the employer's rules, (3) disregard of the standards of behavior the employer has a right to expect of its employees, and (4) disregard of the employee's duties and obligations to the employer. Jones , supra. To constitute misconduct, however, there must be the element of intent. Id. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good-faith errors in judgment or discretion do not constitute misconduct. Id. There must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design. Id. It is the employer's burden to establish misconduct by a preponderance of the evidence. Rockin J Ranch, LLC v. Dir. , 2015 Ark. App. 465, 469 S.W.3d 368 ; see also Follett v. Dir. , 2017 Ark. App. 505, 530 S.W.3d 884.
Taylor was employed by the Department of Human Services (DHS) from 1998 until her termination on August 31, 2017. Taylor was a family service specialist, which required that she review whether recipients of food stamps remained eligible to receive those benefits. In June 2017, Taylor received a reprimand for failing to follow instructions in completing one of her cases. Taylor maintained that with regard to that case, she had verified that a mother and son had already received three months of benefits, which disqualified them from further benefits. Taylor filed a grievance to have her reprimand reviewed. In that proceeding, Taylor presented documentation to prove that she had processed the claim properly and should not have been reprimanded. This information was given to the grievance hearing officer by her union representative. The documentation included the names and social security numbers of the mother and son; those pieces of information were not redacted.
Her supervisors at DHS believed that this disclosure in the grievance hearing was a violation of DHS's confidentiality policy and that Taylor was aware of the policy because she had mandatory online training every six months. Taylor was subsequently terminated.
Taylor did not believe she had done anything wrong because she thought she was supposed to present supportive documentation at the grievance hearing, and this was an employer/employee proceeding at which the hearing officer accepted her documents. She had not been told that she could not bring supportive documentation nor had she been told to redact that particular information for her grievance hearing. Taylor did not take DHS files from the office but instead had a "screenshot" of that information. She was unaware of any DHS policy about such information being taken out of the DHS office.
Taylor filed a claim for unemployment benefits, which was denied at the agency level. At the Appeal Tribunal level, Taylor appeared but DHS did not. The Appeal Tribunal denied Taylor's claim, finding that Taylor was discharged for misconduct in connection with the work and stating in relevant part:
The claimant disclosed confidential information to someone not authorized to have the information in violation of policy.
....
The claimant did not get permission for use of the personal identifying information or redact the sensitive confidential records. The claimant showed deliberate disregard against the employer's interests.
Taylor appealed to the Board, and it affirmed and adopted the Appeal Tribunal decision as its own. This timely appeal followed.
In this case, there is no evidence to support a finding that Taylor knew that her actions were in disregard of DHS's interest. Taylor knew of no policy prohibiting her use of work documentation to support her own defense regarding a work-related reprimand. Taylor had never before been disciplined for any breach of confidentiality. Ordinary negligence in isolated instances or good-faith errors in judgment or discretion do not constitute misconduct. Jones , supra. There must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design. Id. DHS bore the burden to demonstrate that Taylor's actions rose to the level of wrongful intent sufficient to disqualify her from receipt of unemployment benefits. DHS failed to carry that burden here. None of Taylor's actions allow a reasonable person to find that she manifested "deliberate disregard" of her employer's interests. Compare Hubbard v. Dir. , 2015 Ark. App. 235, 460 S.W.3d 294 ; Price v. Dir. , 2013 Ark. App. 205, 2013 WL 1232103 (both holding that the employee committed an isolated instance of ordinary negligence or unsatisfactory conduct that did not establish wrongful intent or evil design). Under these circumstances, we hold that substantial evidence does not support the Board's finding of misconduct. See Sandy v. Dir. , 2018 Ark. App. 20, 542 S.W.3d 870.
Reversed and remanded.
Virden and Harrison, JJ., agree.
The appellate transcript lists appellant's first name as "Ordean," but the internal documentation indicates that the correct spelling is "Ordrean." | [
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KENNETH S. HIXSON, Judge
On September 28, 2016, appellant Breanna Rene Talbert pleaded guilty to negligent homicide and two counts of third-degree battery. These charges arose out of an incident where Breanna negligently operated her motor vehicle by traveling on the wrong side of the road, resulting in a collision that killed the driver of the other vehicle and injured two passengers. On October 6, 2016, the trial court entered an amended sentencing order placing Breanna on one year of probation for each of these offenses. Among other things, Breanna's conditions of probation prohibited her from drinking alcohol or using controlled substances.
On June 12, 2017, the State filed a petition to revoke Breanna's probation, alleging that she violated the conditions of her by testing positive for alcohol and controlled substances on multiple occasions. The revocation petition further alleged that Breanna had admitted using cocaine, marijuana, and alcohol during her probation. After a revocation hearing held on August 13, 2017, the trial court found that Breanna had violated her probation conditions, and a sentencing hearing was subsequently held on September 13, 2017. Pursuant to a sentencing order entered on September 18, 2017, the trial court revoked Breanna's probation and sentenced her to three concurrent one-year terms of incarceration in the county jail.
In this appeal, Breanna concedes that there was sufficient evidence to warrant a revocation of her probation for failing drug tests and admitting that she used prohibited substances. Her only point on appeal concerns her sentencing. Breanna argues that the jail term of one year, which was the maximum term she could have received, was unduly harsh and constituted an abuse of the trial court's discretion. Breanna contends that the trial court instead should have continued her probation with the condition that she undergo a drug-treatment rehabilitation program at her expense. We affirm.
Breanna's probation officer, Debbie Gorham, testified at the revocation hearing. Ms. Gorham stated that she periodically tested Breanna for alcohol and controlled substances and that Breanna tested positive on numerous occasions. During 2017, Breanna tested positive for cocaine and alcohol on January 12; cocaine on February 9; cocaine on March 14; cocaine, alcohol, marijuana, and amphetamines on April 26; and cocaine, alcohol, marijuana, and benzodiazepines on May 26. In addition, on May 24 Breanna admitted using cocaine, alcohol, and marijuana. Ms. Gorham testified that, between the time the petition for revocation was filed on June 12, 2017, and the revocation hearing, Breanna's bimonthly drug-and-alcohol screens had been negative. Ms. Gorham further testified that, other than using drugs and alcohol, Breanna had complied with her remaining conditions, including reporting to probation and paying fines and restitution. On cross-examination, Ms. Gorham stated that although Breanna underwent a drug-and-alcohol assessment as a condition of her probation, there had been no recommendation or referral for her to undergo treatment.
Breanna testified on her own behalf, and she did not contest the positive drug tests. Breanna testified that her grandmother had paid her fines and restitution, while she had used money she had saved to buy drugs and alcohol. Breanna stated that after failing the drug tests she started attending Narcotics Anonymous meetings, from which she had benefited. Breanna asked the trial court that she be ordered to attend outpatient drug treatment as opposed to incarceration.
After the trial court found Breanna in violation of her probation, she testified at the ensuing sentencing hearing that she had continued to test negative for drugs and alcohol. She had also been complying with the other conditions of her probation. Breanna asked the trial court to order outpatient treatment at her expense and to possibly extend her probation. The State asked the trial court to sentence Breanna to one year in jail for her admitted violations. The trial court revoked Breanna's probation and sentenced her to one year in jail.
Breanna's sole point on appeal is that, although there was sufficient evidence to revoke her probation, the trial court abused its discretion in sentencing her to one year in jail. Breanna asserts that the one-year sentence, which was the maximum allowable by law, was unduly harsh under the circumstances. Breanna contends that, rather than giving her jail time, the trial court should have continued her probation with the condition that she undergo drug treatment in a rehabilitation program at her expense.
In support of her argument, Breanna asserts that she had paid all of her fines and restitution. She further notes that, since her last positive drug test on May 26, 2017, she had begun attending Narcotics Anonymous meetings on her own and had remained drug free. In her testimony, Breanna stated that she wanted to participate in drug rehabilitation and was willing to pay for it if so ordered by the trial court. She claims that it was clear from the evidence that she would have benefited from drug treatment, and she asks that we reverse and remand for resentencing.
It is apparent from the record that the judgment and sentence entered against Breanna was lawful. When the trial court revokes a defendant's probation, the trial court may enter a judgment of conviction and may impose any sentence on the defendant that might have been imposed originally for the offense of which he or she was found guilty. Ark. Code Ann. § 16-93-308(g)(1)(A) (Supp. 2017). Breanna was placed on probation for the Class A misdemeanor offenses of negligent homicide and two counts of third-degree battery. See Ark. Code Ann. § 5-10-105(b)(2) (Repl. 2013); Ark. Code Ann. § 5-13-203(b) (Repl. 2013). A Class A misdemeanor carries a maximum one-year jail term. Ark. Code Ann. § 5-4-401(b)(1) (Repl. 2013). The one-year sentence imposed by the trial court was within the statutory range prescribed by law.
Sentencing in Arkansas is entirely a matter of statute, and no sentence shall be imposed other than as prescribed by statute. Lenard v. State , 2014 Ark. 478, 522 S.W.3d 118. When the sentence given is within the maximum prescribed by law, the sentence is not illegal, because the court has the authority to impose it. Richie v. State , 2009 Ark. 602, 357 S.W.3d 909. This court has held that the trial court has discretion to set punishment within the statutory range of punishment provided for a particular crime. Whitmore v. State , 2018 Ark. App. 44, 539 S.W.3d 596. Moreover, our supreme court has held that it will not reduce a sentence, even if it considers it unduly harsh, if it falls within the legislative limits of the General Assembly. Brown v. State , 2010 Ark. 420, 378 S.W.3d 66. If a sentence is within the limits set by the legislature, the appellate court is not at liberty to reduce it. Williams v. State , 320 Ark. 498, 898 S.W.2d 38 (1995).
Based on the above principles, we hold that the trial court did not abuse its discretion in imposing a sentence that falls within the statutory range for Class A misdemeanors. Therefore, we affirm Breanna's probation revocation and the one-year jail sentence.
Affirmed.
Harrison and Murphy, JJ., agree. | [
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HART, J., dissents.
Until the briefing is complete, all that this court has pending before it is Mr. Jackson's motion for an extension of time to file his brief. Because he has not yet filed his brief, his appeal is not perfected, and we do not have jurisdiction to decide his appeal on the merits.
I respectfully dissent. | [
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ROBERT J. GLADWIN, Judge
Appellant Michael Walker appeals his convictions on charges of rape and sexual indecency with a minor for which he was sentenced to a total of forty-six years in the Arkansas Department of Correction. He argues that the circuit court erred in (1) denying his motion for a directed verdict because the State did not prove that the allegations occurred during the years alleged in the amended criminal information; (2) not allowing three witnesses to give their opinion testimony regarding the character for untruthfulness of the victim, pursuant to Arkansas Rule of Evidence 608 (2018); and (3) denying his motion for a mistrial. We affirm.
I. Facts and Procedural History
The offenses that were the bases for these charges were alleged to have occurred between 2004 and 2007 when the victim, appellant's nephew, C.R., was "around five or six," and again when C.R. was "six or seven." C.R. remained silent for many years because appellant told C.R. that if he ever said anything he would kill him.
The allegations came to light on August 6, 2015, after appellant punched C.R., and C.R. then telephoned police. Police arrived at the home appellant was sharing with his sister and C.R., but by that time, appellant had fled. The assistance of the United States Marshals was required to locate and apprehend appellant after he fled the state of Arkansas and texted his sister, Evannah Graves, that he had a gun and would kill police attempting to apprehend him.
Appellant was apprehended on September 15, 2015, and extradited from Oklahoma to Miller County, Arkansas. On September 30, 2015, appellant spoke to Investigator Patsy Dehart with the Miller County Sheriff's Department. At that time, appellant admitted to behaviors against C.R. that were consistent with C.R.'s allegations that formed the bases for the above-described charges. It is undisputed that appellant was over eighteen at the time of the incidents. Due to the passage of time, there was no physical evidence, and there were no eyewitnesses.
During trial, appellant attempted to introduce opinion testimony under Rule 608(a) regarding C.R.'s character for untruthfulness from C.R.'s mother, Davida Stewart; C.R.'s brother, Jonathon Walker; and C.R.'s aunt, Evannah Graves. After discussion and a proffer from each of the proposed witnesses, the circuit court allowed testimony as to C.R.'s character for untruthfulness, in the form of reputation evidence, only from Jonathon. Jonathon testified that he told appellant in a phone call that if C.R. went "through with this ... [he was] beating the f* * * out of him." Jonathon continued by saying that C.R. knew the truth and that if he did not do the right thing when he testified, he would "whip his ass." In addition, Jonathon testified that C.R.'s reputation is that he is "untruthful." Although not allowed to testify regarding C.R.'s character for untruthfulness, Stewart did unequivocally testify that she was backing appellant at trial and was "not backing her son here today."
On rebuttal, the State recalled Investigator Dehart, who testified that C.R.'s mother cooperated in the investigation to locate appellant after he fled from Arkansas. In response to the question from the State, "[S]o she helped you as much as possible in finding [appellant?]" Investigator Dehart replied, "She gave us the names of other victims as well." Appellant moved for the statement to be struck, and the circuit court immediately informed the jury accordingly. Appellant's counsel approached the bench and requested a mistrial. After discussion, the circuit court indicated that it would admonish the jury and that during the admonishment, it would "look and see if there is any particular response from any juror that gives the court pause." The admonition read:
All right, ladies and gentlemen of the jury, in the last session when there was a question and answer session by the State with the witness Patsy Dehart, Ms. Dehart gave an unsolicited comment that was made in her testimony. And the Court is admonishing you that you will disregard the statement, okay, and it can play no role in your understanding and deliberations in this case, okay. Is there anyone who is unable to do that? That's not a right or wrong answer, but if you are unable to do that then we need to know that right now, okay. Is there anyone who is unable to do that?
No jury member indicated an inability to follow the admonition, and the trial proceeded.
Appellant was convicted of rape by a jury and sentenced to forty years, as well as sexual indecency with a child and sentenced to six years, with the sentences to be served consecutively pursuant to a sentencing order filed on February 8, 2018. He filed a timely notice of appeal on February 28, 2018.
II. Discussion
A. Sufficiency of the Evidence
Although it is his last point on appeal, because of double-jeopardy concerns, we must address appellant's sufficiency-of-the-evidence challenge first. Merchant v. State , 2017 Ark. App. 576, 532 S.W.3d 136. According to the amended criminal information, the alleged crimes occurred during the specific years of 2005 and 2007. At trial, appellant moved for a directed verdict at the close of the State's case and at the close of all the evidence as follows:
The Count 1 sets forth that during the years 2005 and 2007 in Miller County, Arkansas Defendant did unlawfully engage in sexual intercourse or deviate sexual activity although there's been, with an individual less than fourteen years of age. Your Honor, there's been testimony of no sexual intercourse, however there is testimony regarding deviate sexual activity, but how it was not stated with specificity when that occurred. So, in light of that fact, Your Honor, I would argue that there should be a directed verdict in this case because there's no evidence presented by the State that this instance occurred in 2005 and 2007.
Additionally, Your Honor, under Count 2, again although there's been an allegation made it doesn't state when it was made. Specifically, the criminal information specifies during the years of 2004 and 2007. There's no evidence of when these instances occurred. There was never, the only testimony about these occurrences came from the victim and he was unable by his own admission to reiterate to the Court or to the jury when these occurred.
Without evidence of when these instances of sexual indecency occurred or in the other case Count 1, when the deviate sexual activity occurred, they have failed to meet their burden in conformity with the information. In light of that fact, Your Honor, I would ask that the Court grant a directed verdict in this case because the State has not met their burden.
A directed-verdict motion is a challenge to the sufficiency of the evidence. Merchant , 2017 Ark. App. 576, at 2-3, 532 S.W.3d at 138. Our test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. On appeal, the evidence is viewed in the light most favorable to the State, and only the evidence supporting the verdict is considered. Id.
The substance of appellant's argument is that the State is required to prove all allegations contained in the amended criminal information; however, appellant concedes that the specific date or time when the crime occurred is not an element of the offenses charged. Accordingly, the circuit court's denial of appellant's motion for directed verdict was not erroneous. See Williams v. State , 331 Ark. 263, 268, 962 S.W.2d 329, 331 (1998) (holding that an information or other charging instrument is not defective if it sufficiently apprises the defendant of the specific crime with which he is charged to the extent necessary to enable him to prepare a defense). A variance between the wording of an indictment or information and the proof at trial does not warrant reversal unless the variance prejudices the substantial rights of the defendant. Johnson v. State , 55 Ark. App. 117, 932 S.W.2d 347 (1996). The record before us indicates that trial counsel failed to articulate how the variance between the dates alleged in the amended criminal information and the proof at trial prejudiced the ability of appellant to defend the case. Moreover, counsel concedes that this issue was not sufficiently preserved for appeal; accordingly, we affirm.
B. Refusal of Opinion Testimony Regarding Victim's Character for Untruthfulness
Appellant submits that the circuit court's misinterpretation of Arkansas Rule of Evidence 608 resulted in the erroneous decision to exclude opinion evidence regarding C.R.'s character for untruthfulness. Rule 608 provides:
(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
Appellant claims that there seemed to be confusion regarding the difference between admitting testimony regarding a witness's personal opinion about another witness having a character for untruthfulness versus evidence of the reputation in the community. The circuit court seemed to be requiring each witness to demonstrate that they were familiar with C.R.'s reputation in the community, but nothing in Rule 608 requires a person to be a member of a community in order to give an opinion concerning a witness's character for untruthfulness. The circuit court stated:
There is probably only one case and I cited it yesterday and it's Urquhart [v. State , 30 Ark. App. 63, 782 S.W.2d 591 (1990),] where you are allowed to specifically impeach as to a person through truthfulness. I think you have one of the elements here[,] which this is a case wherein the credibility of a particular witness, and this witness the complaining party, is very significant and important.
However, I think what you lack is that you do not have, as was in the Urquhart case, a good-faith documented basis other than this person's opinion. It is not the opinion of the community that the witness is or has an untruthful reputation. Certainly, the witness could testify that in her experience through talking to people she has formed that opinion based upon information from other individuals, not her own particular information.
So, for those reasons I am not going to allow you to inquire regarding that critical credibility, okay.
To clarify the court's ruling, counsel for appellant asked,
MR. ANDERSON : So, if I'm understanding, I can ask her if she's familiar with his character and reputation in the community?
THE COURT : Yes.
MR. ANDERSON : But I can't ask her if she has specific experience?
THE COURT : Right.
In essence, the circuit court construed Rule 608 as an exclusion of a witness's personal opinion about C.R.'s character for untruthfulness. Counsel for appellant proffered the testimony of three witnesses who sought to testify about their opinions as to the character for untruthfulness of the victim, C.R.
During a proffer of expected testimony of C.R.'s mother, Ms. Stewart, she testified, "I'm familiar with his character for truthfulness. My knowledge of his character in the community for truthfulness, is not so truthfulness. I also have a personal opinion from my experience as his mother of whether or not he can be believed. My opinion is that he can't be believed all the time. He has a tendency to tell lies." The court precluded Ms. Stewart from testifying about her personal opinion on C.R.'s character for untruthfulness.
C.R.'s brother, Jonathon, also testified on proffer that he was familiar with C.R.'s reputation in the community for truthfulness. He testified, "I have an opinion whether he is truthful. Yes, that opinion is based on my personal experiences with him. Yes, my time spent with him, being my brother, and growing up with him. My opinion is that he's not very truthful at all. Yes, it is my opinion that he cannot be believed. Yes, particularly on issues of the gravity of this." The circuit court excluded the opinion of Jonathon regarding C.R.'s character for untruthfulness, and he was allowed to testify only about his knowledge of C.R.'s reputation for untruthfulness in the community.
The third witness who was expected to testify about her opinion as to C.R.'s reputation for untruthfulness was Ms. Graves, who is C.R.'s aunt and appellant's sister. Ms. Graves testified on proffer that she did not have any knowledge as to his reputation in the community for truthfulness; however, she testified that she did have personal knowledge. She said, "I have personal knowledge. He lies to his friends and girlfriends. I know he lies to girlfriends because he lived with me for about six months, so I saw how he would lie. I have personal observation of him lying. Yes, his girlfriends have expressed to me that he had lied to them. Gara, I'm not sure of her last name. And Bree." The circuit court ruled that Ms. Graves could not testify regarding her opinion or knowledge of reputation for untruthfulness of C.R.
Appellant urges that the circuit court's decision to exclude the personal opinion of each witness as to C.R.'s character for untruthfulness was an abuse of discretion. He notes that C.R.'s credibility was the main issue in this case involving rape and sexual indecency with a child because there was no physical evidence or eyewitness testimony.
We find merit in appellant's argument that he was improperly prohibited from introducing opinion evidence under Rule 608(a) as to C.R.'s character for untruthfulness from his mother, brother, and aunt; however, we hold that the ruling by the circuit court constitutes harmless error under the specific facts of this case. See Garis v. Massey , 270 Ark. 646, 652, 606 S.W.2d 109, 112 (1980) (recognizing that improper exclusion of opinion evidence under Rule 608(a) can be harmless error).
First, the opinion evidence about C.R.'s character for untruthfulness likely would not have changed the outcome of the trial because appellant admitted to police that he engaged in behavior toward C.R. that supports the charges against him. Further, this admission by appellant was factually consistent with the allegations provided by C.R.
Also, appellant fled from Arkansas as law-enforcement officers responded to the report made by C.R. It took several law-enforcement agencies more than a month to locate and apprehend him. See Bailey v. State , 2016 Ark. App. 209, at 5, 489 S.W.3d 203, 206 (noting that the jury may consider evidence of flight as probative evidence of guilt).
Finally, an evidentiary error is harmless if the same or similar evidence is otherwise introduced at trial. Scamardo v. State , 2012 Ark. App. 78, 2012 WL 206952. Although C.R.'s mother and brother were not permitted to offer their opinions about C.R.'s character for untruthfulness, they were able to give their respective views on the issue through different testimony. Ms. Stewart testified that she did not support her son in his accusations against appellant, who was her brother. Likewise, Jonathon testified that he believed appellant and was going to "whip [C.R.'s] ass" if he did not "tell the truth" at trial. Furthermore, Jonathon testified that C.R.'s reputation was "that he is untruthful." Although C.R.'s aunt, Ms. Graves, did not offer any testimony regarding C.R.'s character for untruthfulness, her testimony on the issue would have been cumulative to that of Ms. Stewart and Jonathon.
We hold that appellant's admission, coupled with his undisputed flight, and the testimony of two witnesses, was enough to leave the jury with the firm impression that C.R. was not a truthful person and renders the circuit court's decision to exclude opinion evidence under Rule 608(a) harmless.
III. Failure to Grant Mistrial
During the rebuttal testimony of Investigator Dehart, the following exchange occurred:
MS. ROBERTSON : So, [Ms. Stewart] helped you in -
INV. DEHART : Correct, she did.
MS. ROBERTSON : -as much as possible in finding [appellant]?
INV. DEHART : She gave us the names of other victims as well.
MR. ANDERSON : Objection, Your Honor.
MS. ROBERTSON : Pass the witness.
MR. ANDERSON : Your Honor, that statement should be stricken.
THE COURT : The statement will be stricken from the record.
MR. ANDERSON : Your Honor, I'd like to make another motion outside the presence of the jury. I hate to do it, but I have to.
(Proceedings outside the presence of the jury.)
THE COURT : You may step down Ms. Patsy.
MR. ANDERSON : May I speak, Your Honor?
THE COURT : Outside the presence of the jury, yeah, right here.
MR. ANDERSON : Your Honor, I've been down this road before where a witness said the same thing. This time I have to move for a mistrial. She has brought in testimony of other alleged victims in front of the jury. Now the jury has it in their minds there's other victims. At this point I have to move for a mistrial.
The circuit court denied appellant's motion for a mistrial. The decision to grant or deny a motion for mistrial is within the sound discretion of the circuit court and will not be overturned absent a showing of abuse or manifest prejudice to the appellant. See Blanks v. State , 2018 Ark. App. 495, 562 S.W.3d 865. A mistrial is a drastic remedy and should be declared only when there is error so prejudicial that justice cannot be served by continuing the trial, and when it cannot be cured by an instruction to the jury. E.g. , Miller v. State , 2018 Ark. App. 614, 567 S.W.3d 68. Whether an admonition was requested and given, or requested and refused, are relevant factors, though not necessarily definitive in reaching that conclusion. Coger v. State , 2017 Ark. App. 466, 529 S.W.3d 640.
Appellant submits that evidence of other crimes has long been considered the type that has no place in a trial. See Green v. State , 365 Ark. 478, 231 S.W.3d 638 (2006) ; see Ark. R. Evid. 404(b) (2018). In Lackey v. State , 283 Ark. 150, 152-53, 671 S.W.2d 757, 759 (1984), the Arkansas Supreme Court stated:
Since Alford v. State , 223 Ark. 330, 266 S.W.2d 804 (1954), we have consistently held that admission of such evidence is cause for a new trial. The admonition in this case was useless, the damage having been done. The mere mention of "friction" by the defense was no reason to allow this type of evidence before the jury. The circuit judge recognized that after the fact. The error can only be cured by a new trial.
(Citations omitted.) Appellant argues that likewise in his case, the evidence of other victims mentioned by Investigator Dehart during the guilt phase was extremely prejudicial and can be cured only by ordering a new trial. He maintains that in failing to do so, the circuit court abused its discretion.
We note the State's response that the comment by Investigator Dehart that Ms. Stewart gave police "the names of other victims as well" was a brief remark that was neither repeated nor solicited by the State. See King v. State , 361 Ark. 402, 405, 206 S.W.3d 883, 885 (2005) (when reviewing a refusal to declare a mistrial the court considers whether the prosecutor deliberately induced a prejudicial response). Our review of the record before us indicates that the circuit court not only gave a proper admonition but also, while it was admonishing the jury, indicated that it would "look and see if there is any particular response from any juror that gives the court pause." Our supreme court has held that the circuit court is in a better position to determine the effect of the remark on the jury, see Williams v. State , 2011 Ark. 432, at 10, 385 S.W.3d 157, 164, and in this case, at the end of the admonition, the circuit court specifically asked the jurors whether any of them were unable to disregard the comment by Investigator Dehart. No juror indicated that he or she was unable to do so. Given the circuit court's admonition, close scrutiny of the jurors' reactions thereto, and the lack of an affirmative response from any juror when the circuit court specifically inquired about whether they were unable to follow its instruction to disregard the impromptu statement by Investigator Dehart, it is not apparent that justice was not served by the continuation of the trial. Accordingly, we hold that the circuit court's denial of appellant's motion for a mistrial was proper.
Affirmed.
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ROBERT J. GLADWIN, Judge
Stephanie Smith-McLeod and Gregory McLeod appeal a Columbia County Circuit Court order terminating their parental rights to their daughter, I.M. Stephanie challenges the trial court's findings on both statutory grounds and best interest.
Gregory challenges only the statutory grounds for termination. We find no error and affirm.
I. Procedural Facts and History
Gregory McLeod and Stephanie Smith-McLeod are the parents of I.M. The McLeod family has a history of involvement with the Arkansas Department of Human Services (Department). The Department investigated two unsubstantiated allegations in July 2012 and July 2016. In September 2015, the Department investigated a hotline call alleging that Stephanie was living in the woods with I.M. and that they had no food. These allegations were found to be true. The family moved in with a relative and a protective-services case was opened.
On February 27, 2017, Stephanie was arrested on charges of kidnapping, endangering the welfare of a minor, possession of drug paraphernalia, and possession of a controlled substance. Gregory was arrested on charges of criminal mischief, resisting arrest, endangering the welfare of a minor, possession of drug paraphernalia, possession of marijuana, and driving on a suspended license. Their arrests came after they had removed a relative's child from the hospital because they feared the child would be taken by the Department under "Garrett's law." In order to escape with the child, Stephanie punched a nurse in the face. Stephanie subsequently admitted being under the influence of methamphetamine and K2 at the time of her arrest. Because two-year-old I.M. was with them at the time of their arrest, I.M. was taken into custody on a seventy-two-hour hold. The Department subsequently learned that a relative had been caring for I.M. for over two months before Stephanie's arrest and that Stephanie had never cared for I.M. long term.
The Department filed a petition for emergency custody and dependency-neglect. Stephanie and Gregory stipulated to probable cause and eventually stipulated that I.M. was dependent-neglected on the basis of neglect, admitting that they had failed to appropriately supervise I.M., which resulted in I.M.'s being placed in an inappropriate circumstance that created a dangerous situation and placed her at a risk of harm. Further, they admitted that they were unable to assume the responsibility for I.M.'s care and custody due to their arrest and incarceration. At the adjudication hearing, Gregory and Stephanie were incarcerated but ordered to avail themselves of any and all services germane to the case plan that were offered through the Arkansas Department of Correction.
At a subsequent review hearing, the court found that Stephanie and Gregory had not demonstrated progress toward the goals of reunification due to their incarceration. The court also found that they had been unable to complete and benefit from services under the case plan and had been unable to remedy the issues that prevented the safe return of I.M. to their care.
At a permanency-planning hearing held on March 2, 2018, the court noted that Stephanie had been incarcerated until February 21, 2018, and Gregory had been incarcerated for the duration of the case. The court then changed the goal of the case to termination of parental rights and adoption, finding that neither Stephanie nor Gregory had made any significant measurable progress toward achieving the goals established in the case plan, and neither had diligently worked toward reunification or placement of the child in the home.
Based on this change of goal, the Department filed a petition to terminate parental rights as to both Gregory and Stephanie on twelve-month-failure-to-remedy and aggravated-circumstances (i.e., little likelihood that services would result in reunification) grounds and alleged that termination was in I.M.'s best interest. The court conducted a termination hearing and granted the petition to terminate parental rights, finding that termination was in I.M.'s best interest and that the Department had proved both statutory grounds. Stephanie and Gregory both appeal the trial court's order terminating their parental rights.
II. Standard of Review
On appeal, we review termination-of-parental-rights cases de novo but will not reverse the circuit court's ruling unless its findings are clearly erroneous. Dade v. Ark. Dep't of Human Servs. , 2016 Ark. App. 443, 503 S.W.3d 96. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, we have noted that in matters involving the welfare of young children, we will give great weight to the trial court's personal observations. Jackson v. Ark. Dep't of Human Servs. , 2016 Ark. App. 440, 503 S.W.3d 122.
Our case law recognizes that the termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Fox v. Ark. Dep't of Human Servs. , 2014 Ark. App. 666, 448 S.W.3d 735. As a result, the Department bears a heavy burden in seeking to terminate the relationship of parent and child. Id. In termination-of-parental-rights matters, the circuit court is required to follow a two-step process by finding first that the parent is unfit and second that termination is in the best interest of the child. J.T. v. Ark. Dep't of Human Servs. , 329 Ark. 243, 947 S.W.2d 761 (1997) ; Smith v. Ark. Dep't of Human Servs. , 2013 Ark. App. 753, 431 S.W.3d 364. The first step requires proof of one or more of the statutory grounds for termination. Ark. Code Ann. § 9-27-341(b)(3)(B). The second step requires consideration of whether the termination of parental rights is in the child's best interest. Ark. Code Ann. § 9-27-341(b)(3)(A).
III. Statutory Grounds
On appeal, Stephanie challenges both grounds found by the trial court to support termination. As to the twelve-month-failure-to-remedy ground, she argues that she was in complete compliance with the case plan, both while incarcerated and after her release, and that she had corrected the conditions that caused removal. As to the aggravated-circumstances ground, she argues that she had completed a substantial number of services in a short period of time and, with the exception of individual counseling, was working diligently toward completing the requirements of the case plan; therefore, the court's finding that it was unlikely that services would result in a successful reunification was clearly erroneous.
Gregory argues that he did not have to show that he had remedied the grounds for removal; rather the Department had to prove that he had not. He claims that he was no longer incarcerated; that there was no evidence that he would kidnap his niece again; and that he had not taken any drugs since his arrest. As for the aggravated-circumstances ground, he argues that there was only evidence that he had been unable to work services while incarcerated, not that he was unwilling. In fact, he had done all that the Department had required since his release. He further argues that past drug usage does not equal little likelihood of successful reunification. Finally, he argues that the court was mistaken in its belief that a decision had to be made at the termination hearing.
We need not reach the merits of the arguments made by either Stephanie or Gregory due to invited error. Under the doctrine of invited error, a party may not complain on appeal of an erroneous action of a trial court if he or she induced or acquiesced in that action. J.I. Case Co. v. Seabaugh , 10 Ark. App. 186, 662 S.W.2d 193 (1983) ; see also Rogers v. Ritchie , 2017 Ark. App. 420, 528 S.W.3d 272 (holding that, pursuant to invited-error doctrine, Rogers was precluded from arguing that guardianship was void on appeal where she had requested the guardianship without obtaining the requisite professional evaluation and had argued its validity when trustees moved to set it aside); Clark v. Ark. Dep't of Human Servs. , 2016 Ark. App. 286, at 6, 493 S.W.3d 782, 788 (holding that, pursuant to invited-error doctrine, where Clark's attorney argued to trial court that "significant change of circumstances" was required to effectuate a change of custody that arose solely from dependency-neglect action, she could not then argue on appeal that the trial court had used the wrong standard from domestic-relations proceedings).
Here, both Stephanie's and Gregory's counsel conceded at the hearing that the trial court could terminate on the twelve-month-failure-to-remedy ground. In closing arguments, Stephanie's attorney stated:
We admit-in speaking for Stephanie McLeod-we admit that The Court can terminate the parental rights of Stephanie as to [I.M.]. We know you can do that, if for no other reason than the statute provides for twelve months out of the home. That's clearly been established, because my client's been incarcerated for little over, well, right at twelve months, but certainly since [I.M.] is still not in my client's home, more than twelve months.
On her behalf, counsel then proceeded to argue for more time and more services. Then, however, during the recitation of the trial court's oral findings, Stephanie's counsel stated:
I understand The Court's Ruling about the T.P.R., the twelve months. I can't really argue that. In fact, we didn't, but I would disagree with The Court and object to you making the Finding directing them to prepare an Order that aggravating circumstances have been met.
Counsel then argues that the court could "terminate the parental rights of these parents because of the twelve months' separation with finding aggravated circumstances. That's fine."
Likewise, Gregory's counsel in closing stated:
The statute, we understand, you're limited in what you can do. The law is the law. You're [sic] got to follow that, but if there's-like [Stephanie's counsel] said-we're just pleading that if there's anything that The Court could possibly do to extend time to allow Greg and Stephanie to show The Court they are committed to this, if they fail, they fail.
In connection with the court's oral findings, Gregory's attorney responded, "Just for the record, I just kind of want to piggy-back on that which [Stephanie's counsel] just stated." Thus, counsel for Gregory also agreed that Gregory's rights could be terminated under the failure-to-remedy ground.
We hold that both parties affirmatively informed the court that there was sufficient evidence on which the court could terminate on the failure-to-remedy ground. They only disagreed on the aggravated-circumstances ground and requested more time to show compliance. When a party does not dispute the allegations of a ground at the trial level, they are prohibited from appealing the ground under the theory of invited error. Parnell v. Ark. Dep't of Human Servs. , 2018 Ark. App. 108, 538 S.W.3d 264 (holding that, pursuant to the invited-error doctrine, Parnell was precluded from arguing the elements of the failure-to-remedy ground on appeal when the elements were not disputed at trial).
Only one ground is necessary for termination to occur. Robinson v. Ark. Dep't of Human Servs. , 2017 Ark. App. 262, 520 S.W.3d 322. Because the twelve-month-failure-to-remedy ground has been satisfied, we need not address Stephanie's or Gregory's aggravated-circumstances arguments.
IV. Best Interest
Stephanie also challenges the trial court's best-interest findings. She argues that she has been actively working toward reunification with I.M. and that there would be little harm in allowing additional time for reunification. Additionally, she argues that I.M. has a sibling, E.M. Stephanie contends that although E.M. was also in the custody of the Department, the permanency-planning hearing for E.M. was set to occur approximately five months after the termination hearing and that her reunification with E.M. was likely. Given this likelihood, I.M. will be separated from E.M. when successful reunification with E.M. occurs. In essence, Stephanie argues that it is in I.M.'s best interest to allow her additional time for reunification.
Stephanie is correct that one factor the court must consider in determining the best interest of the child is whether the child will be separated from his or her siblings. Clark , supra. However, the effect of separation from a sibling is not the only factor the court must consider in determining whether termination is in the child's best interest. The trial court in this case fully considered the effect termination would have on I.M.'s relationship with her sibling. The court specifically stated that it did not "discount the fact that [I.M.] has a sibling in the foster care system" and that both were aware of the other.
Moreover, the intent of our termination statute is to provide permanency in a minor child's life in circumstances where returning the child to the family home is contrary to the child's health, safety, or welfare, and where the evidence demonstrates the return cannot be accomplished in a reasonable period of time as viewed from the child's perspective. Miller v. Ark. Dep't of Human Servs. , 2017 Ark. App. 396, 525 S.W.3d 48. Here, the evidence revealed that Stephanie had a significant drug addiction. Stephanie admitted at the hearing that at the time of her arrest, she had been using methamphetamine daily and K2 four to five times a week. Stephanie's psychological evaluation recommended reunification only after an extended period of sobriety, gainful employment, and appropriate housing. Throughout the proceeding, Stephanie had been incarcerated for the majority of the time, which had hindered the provision of services. As a result, she had not completed all the recommended services. At the time of the hearing, Stephanie was unemployed and lacked transportation. She was receiving substance-abuse counseling, but due to her incarceration, her treatment was just beginning. Most importantly, Stephanie admitted that it was not appropriate for I.M. to be returned to her care at that time. On this record, the trial court's finding that termination of Stephanie's parental rights was in I.M.'s best interest was not clearly erroneous.
Affirmed.
Virden, J., agrees.
Whiteaker, J., concurs.
Gregory was also wanted on two failure-to-appear warrants.
We note persistent noncompliance with the statutory timeframes in this process. I.M. was removed on February 27, 2017, but the ex parte order for emergency custody was not filed until March 8, 2017. The probable-cause hearing was held on March 9, 2017, but the probable-cause order was not filed until June 15, 2017. At the probable-cause hearing, the court scheduled the adjudication hearing for May 5, 2017, which exceeds the statutory timeframes. The adjudication was eventually held on June 23, 2017, but the adjudication order was not filed until November 13, 2017.
We note again noncompliance with statutory timeframes. The review hearing was held on October 20, 2017, but the review order was not filed until December 13, 2017.
Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp. 2017).
Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3) .
E.M. was born on October 5, 2017, and was removed from Stephanie's custody at birth. E.M. is the subject of a separate dependency-neglect action. | [
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KENNETH S. HIXSON, Judge
Tamekia Walter appeals after the Pulaski County Circuit Court denied and dismissed her petition for an order of protection in favor of appellee Gerome D. Chism. On appeal, Tamekia argues that the trial court erred when it denied and dismissed her petition because it erroneously found that she failed to meet her burden of proof. We affirm.
I. Facts
Tamekia filed a petition for an order of protection on April 11, 2017, wherein she alleged that she was afraid of Gerome and that there was an immediate and present danger of domestic abuse stemming from an incident that occurred at Gerome's home on April 10, 2017. The trial court granted an ex parte temporary order of protection, and a hearing was held on the petition on April 26 and May 1, 2017.
At the subsequent hearing for the order of protection, Tamekia testified that Gerome was her boyfriend and that they had been in a relationship for almost six years. Tamekia testified that she had an argument with Gerome that began about potato salad. The argument took place at Gerome's home on April 10, 2017, around 9:30 p.m. Tamekia further testified that when she attempted to leave, Gerome lunged at her and grabbed her hair. Tamekia ran to Gerome's daughter's room, but Gerome dragged her back down the hallway to his room and hit the side of her head with a closed fist. Tamekia additionally testified that after she had accused Gerome of cheating on her, Gerome assaulted her for approximately twenty minutes, kicking her in the stomach, hitting her in the face, and choking her until she "blacked out." After she went home, Tamekia called the police but did not seek any medical attention. Officer Evans responded and took photographs of the scratches on her neck and swollen left eye. Finally, Tamekia testified that Gerome had abused her in the past and submitted photographs of past injuries that she alleged Gerome had caused.
Officer Phillip Evans testified that he responded to Tamekia's call for assistance. Officer Evans stated that Tamekia reported that Gerome had assaulted her. Tamekia indicated that Gerome hit her in the face and stomach. Tamekia did not, however, advise the officer that Gerome choked her or pulled her hair. Officer Evans observed that Tamekia had some swelling to the left side of her face and some red marks around her neck; however, he did not see any bruising on her stomach. Gerome was subsequently taken into custody, wherein he denied Tamekia's allegations.
Tamekia's son testified that Tamekia returned home that evening with a black eye and seemed upset.
Gerome denied that he physically assaulted Tamekia. Gerome described his relationship with Tamekia as mostly an "on and off sexual relationship." On April 10th, Gerome invited Tamekia to join him and his daughter, Justice, for leftover barbeque for dinner. Gerome testified that Tamekia was very jealous and immediately questioned him about whether another woman had made the potato salad for him. After an argument had ensued, Gerome asked Tamekia to leave, and she refused. Gerome testified that he had to lift her up to get her out of his home. Tamekia continued to scream at him from outside the door and told him that she would call the police. After Tamekia eventually left, Gerome received a text message that she was going to take his livelihood away from him and thanking him for another black eye. Gerome repeatedly denied ever striking or hitting her and had no explanation for how Tamekia received any of the injuries she alleged. Gerome explained that Tamekia did not have any marks on her when she left his home.
Gerome's daughter, Justice, testified at the hearing and corroborated her father's testimony. She testified that Tamekia kept resisting and trying to hit her father when he was trying to remove her from their home. Gerome's daughter specifically testified that she did not see her father hit Tamekia or grab her by the hair as Tamekia alleged. She further testified that she did not see any marks on Tamekia before she left their residence that night.
In a detailed order, the trial court denied and dismissed Tamekia's petition for an order of protection and made the following pertinent findings:
28. The Plaintiff has the burden of proof to show that she was in the immediate and present danger of domestic abuse at the time of the alleged act. If the Plaintiffs testimony meets the burden of proof, then she is entitled to an Order of Protection.
29. In the present case, the Court was presented with two diametrically opposed factual scenarios, both believable and both credible.
30. There is no question that the Plaintiff received a swollen left eye during the altercation but whether she received this injury at the hands of the Defendant or through the efforts to re move the Plaintiff from the home is in question. It is significant to the Court that her Petition for Order of Protection lists numerous acts of abuse but that she failed to mention a majority of those alleged acts of abuse to Officer Evans who testified that she never told him about the hair pulling, kicking, punching in the head, choking and being dragged around the house. It appears to the Court that the Plaintiff would have given Officer Evans a complete list of abuse, not just the allegation that she was punched in the left side of her face and stomach.
31. Further, the Plaintiff testified of no injuries she received by being dragged around the house and pushed to the ground.
32. There is no question that there was an altercation at the Defendant's home but this Court is unable to find that the Plaintiff met her burden of proof as to the allegations made against the Defendant.
33. Therefore, the Petition for Order of Protection is denied and dismissed.
This appeal followed.
II. Standard of Review
Our standard of review following a bench trial is whether the trial court's findings are clearly erroneous or clearly against the preponderance of the evidence. Bohannon v. Robinson , 2014 Ark. 458, 447 S.W.3d 585. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. Disputed facts and determinations of the credibility of witnesses are within the province of the fact-finder. Id.
III. Sufficiency
At a hearing on a petition filed under the Domestic Abuse Act, upon a finding of domestic abuse, the circuit court may provide relief to the petitioner. Ark. Code Ann. § 9-15-205(a) (Repl. 2015); see also Wornkey v. Deane , 2017 Ark. App. 176, 517 S.W.3d 438 ; Oates v. Oates , 2010 Ark. App. 345, 377 S.W.3d 394. "Domestic abuse" is defined as "[p]hysical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury, or assault between family or household members." Ark. Code Ann. § 9-15-103(4) (Supp. 2017). "Family or household members" include persons who presently or in the past have resided or cohabited together, persons who have or have had a child in common, and persons who are presently or in the past have been in a dating relationship together.
Ark. Code Ann. § 9-15-103(5). A "dating relationship means a romantic or intimate social relationship between two (2) individuals that shall be determined by examining" the length of the relationship, the type of the relationship, and the frequency of interaction. Ark. Code Ann. § 9-15-103(3)(A). However, a "dating relationship" does not include a casual relationship or ordinary fraternization between two individuals in a business or social context. Ark. Code Ann. § 9-15-103(3)(B).
Tamekia argues that the trial court erred in denying and dismissing her petition for an order of protection. Tamekia alleges that she proved by a preponderance of the evidence that she was the victim of domestic abuse and that the evidence weighed in her favor. Although Tamekia admits that "there may have been evidence to support the trial court's ruling," she contends that "the record taken as a whole clearly shows that a mistake was committed." We disagree. As the trial court acknowledged, it was faced with resolving two diametrically opposed versions of events. Although Tamekia would have us credit her version of events, the credibility of witnesses is within the province of the fact-finder, and we cannot say that the trial court's findings were clearly erroneous in light of the evidence presented. Bohannon , supra. Accordingly, we affirm.
Affirmed.
Abramson and Vaught, JJ., agree.
The appellee did not contend and we do not offer any opinion on whether the relationship as described by the parties herein constitutes the type of relationship that is contemplated by Arkansas Code Annotated section 9-15-103(3). | [
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RITA W. GRUBER, Chief Judge
Jake Earl Small was charged in the Sebastian County Circuit Court with furnishing a prohibited article, a Class B felony; possessing hydrocodone, a Class C felony; and two counts of possession of drug paraphernalia, Class D felonies. Some of the contraband was found in the car he was driving when Fort Smith police officer Eric Hoegh stopped it for lack of insurance. Prohibited items were also found on Small's person when he was booked and searched at the Sebastian County jail.
Small filed pretrial motions to suppress evidence from his car, which included seven hydrocodone pills in a small baggie, and his statement to Officer Hoegh that the pills were from a friend and that Small took them for his arthritis. After conducting a suppression hearing, the trial court denied the motions by a written order on December 5, 2016.
On December 6, 2016, the State filed an amended criminal information that added the offense "Proximity to certain facilities," based on an allegation that Small possessed a controlled substance, Class C felony or greater, within 1000 feet of the real property of a church. On December 15, 2016, Small filed a pretrial motion to dismiss the "count" of enhanced sentencing or, alternatively, to continue the trial-based in part on a lack of allegation regarding his mental state. The motion was argued on the morning of trial, December 19, 2016, and was denied.
Claire Desrochers, the forensic chemist at the Arkansas State Crime Laboratory who tested seven pills that were found during the search of Small's vehicle, testified at trial that the pills contained 3.6763 grams of hydrocodone and that hydrocodone is a Schedule II drug. Officer Greg Napier of the Ft. Smith Police Department's narcotics unit gave the following testimony. He testified that he reviewed the videotape from the traffic stop, learned its location, and flew his drone to take the photograph introduced as State's exhibit no. 7. He walked along the side of the road past the church property line and up into the church driveway, measuring a total distance of 846 feet. He also measured the straight-line distance as 738.6 feet from the side of the church. The jury found Small guilty of all charges.
Small raises four points on appeal. First, he contends that the trial court erred in denying his motions to suppress. Second and third, he contends that the trial court erred in denying his motion to dismiss the sentencing enhancement of Arkansas Code Annotated section 5-64-411 for possessing the hydrocodone near a church and erred in refusing to give his proffered jury instructions regarding the statute. Fourth, he contends that there was insufficient evidence to support the conviction of violating Arkansas Code Annotated section 5-64-411. We affirm the trial court's decision to deny his motions to suppress and reverse the trial court's conviction for violating Arkansas Code Annotated section 5-64-411 ; the other two points become moot.
I. Whether there Was Sufficient Evidence to Support a Violation of Ark. Code Ann. § 5-64-411
Due to double-jeopardy considerations, we consider a challenge to the sufficiency of the evidence before we address alleged trial errors. Coger v. State , 2017 Ark. App. 466, at 2, 529 S.W.3d 640. In assessing the sufficiency of the evidence supporting criminal convictions, we consider only the proof that supports the verdict. Id. We view that evidence and all reasonable inferences deducible therefrom in the light most favorable to the State, and we will affirm if the finding of guilt is supported by substantial evidence. Id. Evidence is substantial if it is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without requiring resort to speculation or conjecture. Id.
A person is subject to enhanced sentencing of an additional 10-year term of imprisonment if the person "[p]ossesses a controlled substance in violation of § 5-64-419 and the offense is a Class C felony or greater" and "[t]he offense is committed on or within" 1000 feet of the real property of a church. Ark. Code Ann. § 5-64-411(a)(1) & (2)(H) (Repl. 2016). The possession of two grams or more of a Schedule II controlled substance is a Class C felony. See Ark. Code Ann. § 5-64-419. Small repeats on appeal the argument he made in his motion for a directed verdict-that this statute requires proof of a culpable mental state, and the State failed to present evidence that he knowingly or purposely possessed drugs within 1000 feet of a church.
Small also argues that our legislature "never intended that this code provision be applicable to traffic stop cases since the police could manipulate the situation by initiating the traffic stop near one of the listed establishments." We do not address his latter argument because he did not make it to the trial court. A party is bound by the nature and scope of the objections and arguments made at trial and may not enlarge or change those grounds on appeal. Ronk v. State , 2016 Ark. App. 126, at 8, 2016 WL 740271. We now address the sufficiency of the evidence pursuant to Small's directed-verdict motion.
Small notes the provision of Arkansas Code Annotated section 5-2-203(b) (Repl. 2013) that, with certain exceptions, "if the statute defining an offense does not prescribe a culpable mental state, a culpable mental state is nonetheless required and is established only if a person acts purposely, knowingly, or recklessly." (Emphasis added.) He argues that the State failed to address his culpable mental state, a key element of the crime, and that there was no evidence that he was aware of the church's location. He points to State's exhibit no. 7, an aerial photograph taken by drone, showing Trinity Baptist Church "down the street and around the corner of where [he] was stopped." He concludes that because the State did not present evidence that he acted purposely or knowingly, it failed to meet its burden of proof. Small notes the holding of Leeka v. State , 2015 Ark. 183, 461 S.W.3d 331, that because our DWI statute did not contain an express requirement of a culpable mental state, one nonetheless was imputed to the offense through Ark. Code Ann. § 5-2-203. Leeka , 2015 Ark. 183, at 6-8, 461 S.W.3d at 335-36.
The State responds that section 5-2-203 is inapplicable because section 5-64-411, unlike the DWI Act at issue in Leeka , is a sentencing enhancement rather than a statute defining an offense. The State relies on Baumgarten v. State , a case concerning when the State may amend a charge:
It is well settled that an information may be amended up to a point after a jury has been sworn if it does not change the nature of a crime, or create unfair surprise. We have held that an amendment which adds an allegation of habitual offender does not change the nature or degree of the crime. Such an amendment simply authorizes a more severe punishment, not by creating an additional offense or an independent crime, but by affording evidence to increase the final punishment in the event the defendant is convicted.
316 Ark. 373, 379, 872 S.W.2d 380, 384 (1994) (internal citations omitted).
We find a clear distinction between Baumgarten and the present case. Adding a habitual-offender status does not change the elements or nature of the charges or the proscribed conduct. Arkansas Code Annotated section 5-64-411, however, adds an enhanced sentence for a person found guilty of certain offenses, including that for which appellant was convicted, only if an additional requirement is met. That additional requirement is the location where the act is committed. Accordingly, we hold that the circuit court erred in concluding that section 5-64-411 did not require a culpable mental state, and we reverse and remand on this point.
II. Whether the Trial Court Erred in Denying Small's Motions to Suppress
Small contends that Officer Hoegh did not have probable cause to initiate the traffic stop of his vehicle. Hoegh testified that he made the stop on the evening of February 12, 2016, when he was on patrol in the city of Fort Smith:
I came behind Mr. Small's vehicle at the railroad tracks. We were stopped there for a brief moment. I ran the defendant's tag. The vehicle insurance came back to be cancelled. Once ... we started back in motion, I then initiated my blue lights and made a traffic stop on Mr. Small. The traffic stop was about 6:50 p.m. This is a copy of the NCIC return which I got on Mr. Small's vehicle. It shows that the insurance shows cancelled.
I then retrieved his name and date of birth and information. He at the time did not have insurance available. He did not have anything but the policy number. I then returned to my vehicle. I then, just like I do with everyone else, I [ran] his name through the database to get a return on him to know who I'm speaking with. Upon the NCIC return, I got a return and an active warrant out of Little Rock. It was for contempt of court. It also showed that his license was suspended.
While Hoegh was running the computerized NCIC search in his service vehicle, Small located his insurance papers and gave them to an assisting officer who had arrived at the scene.
During cross-examination, Hoegh testified that he had never before seen a printout such as State's exhibit no. 1-entitled "Hoegh ACIC Verification"-and that his computer screen "does not have the initial page." He acknowledged that people whom he had stopped for no insurance sometimes did have insurance and that sometimes he had called within working hours to verify insurance information, but he said that he did not call to verify Small's insurance information due to the active warrant and suspended driver's license. Hoegh explained,
If I pulled you over and you can't find your insurance and you give me your driver's license, I am going to run your driver's license regardless whether or not you find it within a few seconds later based upon my computer telling me you don't have insurance. I'll retrieve the driver's license or the person's name and date of birth, run their information and then if they are able to find their insurance verification, I will tell them to hold it outside the window and I will be up there to get it in a second. Or I will let them call their insurance company and try to get a policy number for their vehicle. Even if you give me your insurance card and driver's license, I still would run the driver's license. I would still investigate the stop with the person I'm coming into contact with, as well as their vehicle insurance information. We still investigate the stop to verify the insurance is valid, and also that their driver's license is valid even though the purpose of the stopping them has been satisfied.
Small complains that Hoegh's computerized search returned unreliable information that Small's insurance was canceled and that Hoegh discovered Small's active warrant for contempt of court by running information through NCIC without giving him sufficient time to produce proof of insurance. He points to the following statement in State's exhibit no. 1, the printout showing that his insurance had been canceled: "The insurance information is provided by the Department of Finance and Administration. Valid insurance policies may exist that are not included in the database at this time." He also argues that even if the stop was legal, Hoegh exceeded the scope of the initial stop before discovering drugs in the car.
In order for a police officer to make a traffic stop, he or she must have probable cause to believe that a traffic violation has occurred. Yarbrough v. State , 370 Ark. 31, 38, 257 S.W.3d 50, 56 (2007). When reviewing the denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, recognizing the trial court's superior opportunity to determine witnesses' credibility and reversing the findings of historical fact only when they are clearly erroneous. Tankersley v. State , 2015 Ark. App. 37, at 1-2, 453 S.W.3d 699, 700-01. Probable cause is defined as facts or circumstances within a police officer's knowledge that are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected. Lockhart v. State , 2017 Ark. 13, at 5, 508 S.W.3d 869, 873. In assessing the existence of probable cause, the appellate review is liberal rather than strict. Id.
Furthermore, whether a police officer has probable cause to make a traffic stop does not depend on whether the driver was guilty of the violation that the officer believed to have occurred. Travis v. State , 331 Ark. 7, 10, 959 S.W.2d 32, 34 (1998). In Travis , the deputy stopped a truck with a Texas license plate because he mistakenly believed the truck was being operated in violation of the law. Our supreme court affirmed the trial court's denial of the motion to suppress evidence that was subsequently discovered in the truck:
Although the deputy was erroneous, the question of whether an officer has probable cause to make a traffic stop does not depend upon whether the defendant is actually guilty of the violation that was the basis for the stop. As we said in [ Burris v. State , 330 Ark. at 73, 954 S.W.2d at 213, citing Whren v. United States , 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ; State v. Jones , 310 Ark. 585, 839 S.W.2d 184 (1992) ], "all that is required is that the officer had probable cause to believe that a traffic violation had occurred. Whether the defendant is actually guilty of the traffic violation is for a jury or a court to decide, and not an officer on the scene."
The facts of this case are unlike those found in Delaware v. Prouse , 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), which formed the foundation of the Court of Appeals decision in this case. There was no issue of reasonable or probable cause in the Prouse decision because that case involved a "random" traffic stop. We cannot say that Deputy Smith lacked reasonable cause to stop Mr. Travis's truck simply because the truck ultimately was found to have been operated in compliance with Texas law. At the time of the stop, Deputy Smith reasonably, albeit erroneously, believed the license plate was required to display expiration stickers. That the license plate was later found to have been in compliance with Texas law does not mean that the deputy lacked probable cause to make the stop.
331 Ark. at 10-11, 959 S.W.2d at 34-35 (citations omitted).
As part of a valid traffic stop, a police officer may detain a traffic offender while the officer completes certain routine tasks, such as computerized checks of the vehicle's registration and the driver's license and criminal history, and the writing up of a citation or warning. Sims v. State , 356 Ark. 507, 514, 157 S.W.3d 530, 535 (2004). During this process, the officer may ask the motorist routine questions such as his or her destination, the purpose of the trip, or whether the officer may search the vehicle, and the officer may act on whatever information is volunteered. Id.
Here, Officer Hoegh believed that Small's car was being operated in violation of our law requiring insurance coverage. We note the following provision of Arkansas Code Annotated section 27-22-104 :
Failure to present proof of insurance coverage at the time of a traffic stop or arrest or a failure of the Vehicle Insurance Database or proof of an insurance card issued under § 23-89-213 to show current insurance coverage at the time of the traffic stop creates a rebuttable presumption that the motor vehicle or the person's operation of the motor vehicle is uninsured.
Ark. Code Ann. § 27-22-104(2)(A) (Repl. 2013) (emphasis added).
We agree with the State that Small's reliability argument is belied by the statutory language that "a failure of the Vehicle Insurance Database ... to show current insurance coverage at the time of the traffic stop creates a rebuttable presumption that the motor vehicle or the person's operation of the motor vehicle is uninsured." Id. The lack of insurance information in the database was sufficient to provide Officer Hoegh with probable cause to believe that a traffic violation had occurred. Hoegh was entitled to rely on the information in his possession at the time of the initial stop, see Travis , supra , and it is irrelevant that Small may have subsequently produced documents showing that he had insurance.
We also agree with the State that the search of Small's vehicle did not exceed the scope of the valid traffic stop. After initiating the stop, Officer Hoegh took Small's driver's license back to his car to run a routine computerized check. Hoegh testified that it is his standard practice to run a computerized NCIC check in a routine traffic stop and that he performed the check while waiting for Small to find his insurance information. Thus, Hoegh's action of running Small's license and criminal history were within the scope of a valid traffic stop. See Sims, supra. The information Hoegh obtained from the NCIC search, that Small had a suspended driver's license and an active warrant for his arrest, provided reasonable suspicion to continue the detention. We affirm the denial of the motion to suppress.
III. Whether the Circuit Court Erred in Denying Small's Motion to Dismiss the Sentencing Enhancement
IV. Whether the Circuit Court Abused its Discretion by Rejecting Small's Proposed Jury Instructions
Both of these points relate to Arkansas Code Annotated section 5-64-411. They are rendered moot by our decision in Part I.
Affirmed in part; reversed and remanded in part.
Virden, Klappenbach, and Whiteaker, JJ., agree.
Harrison and Vaught, JJ., dissent.
Small has not argued insufficiency of the evidence regarding the other charges.
In 2015, in response to the April 2015 Leeka opinion, our legislature explicitly stated its intention to make DWI a strict-liability offense, not requiring proof of a culpable mental state. Tackett v. State , 2017 Ark. App. 271, at 4, 523 S.W.3d 360, 362. The legislature stated in Act 6 that it "intended and still intends to keep driving while intoxicated a strict liability offense." Act 299 added subsection (c) to Ark. Code Ann. § 5-65-103, which provides that "[a]n alcohol-related offense under this section is a strict liability offense." | [
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Brandon J. Harrison, Judge, dissenting.
Should the circuit court's dismissal of Roy Treat's de novo appeal from district court to circuit court be reversed and his case reinstated? That is the question. The just and fair answer is a resounding "Yes, let him appeal."
I.
Treat was convicted of speeding and driving while intoxicated (first offense) in White County District Court, Rose Bud Division, on 17 November 2017. On December 21, Treat filed an affidavit in the circuit court stating that he had requested a certified record from the district clerk on December 4 but "[t]o date, the Rose Bud District Clerk has not prepared the record to be filed with the White County Circuit Court." By December 27, Treat had received a certified copy of the docket sheet and the district court record and filed them in the circuit court.
On 22 March 2018, the State moved to dismiss Treat's appeal to the circuit court. It argued that he had failed to pay the $ 5 fee that is required when a district court clerk is asked to certify a record for an appeal to circuit court; and the failure to pay the fee deprived the circuit court of jurisdiction over Treat's appeal from district court. On April 25, the circuit court held a hearing on the State's motion and ruled from the bench that it would dismiss Treat's appeal because, although Treat had already received the record, he did not send $ 5 to the clerk's office when he initially submitted his request that the district clerk certify the record for an appeal. On April 27, Treat's lawyer sent a $ 5 check by certified mail to the district court clerk, but she refused to negotiate it.
On May 3, Treat filed a written objection to the State's proposed order of dismissal. Treat argued that the circuit court obtained jurisdiction when he filed the affidavit on December 21 in compliance with Arkansas Rule of Criminal Procedure 36. He pointed out that there was literally no clerk to certify the record when he initiated the certification process. Treat also argued that the failure to demand and collect the fee was a clerk's-office issue that should not be held against him. Treat attached information from six White County District Court clerks that he had obtained through an Arkansas Freedom of Information Act (FOIA) request. The mining effort revealed that some district court clerks' offices in White County never collected or invoiced fees when asked to prepare a record for an appeal to the circuit court. Treat informed the circuit court that during the time period requested and according to the clerks who responded to his FOIA requests, in only nine out of 139 cases appealed from district court to circuit court in White County-a mere six percent-did district clerks collect a record-certification fee. (By our count, the reporting clerks had collected fees in ten of 139 appeals, some were for $ 5, some were $ 15. In any event, the fee-collection percentage rate was seven percent at most.)
The Rose Bud District Court clerk did not report to Treat the number of appeals in which a fee was collected for certifying a record for an appeal to circuit court; the only information that office apparently released was one receipt-for a $ 15 fee that was charged and collected in 2017 for "certified dockets."
The circuit court was unmoved by the alarming disparity in fees charged and collected across the county and dismissed Treat's case for lack of jurisdiction. The court apparently reasoned that a dismissal was proper because the district court clerk was not obligated to prepare and certify a docket sheet until Treat paid $ 5. When you put it all together, the court dismissed Treat's appeal because he had failed to timely pay the minimum fee required under Ark. Code Ann. § 16-17-124 (Supp. 2017) and did not file a certified docket sheet in the circuit court within thirty days of the November 17 district court judgment. As for the Rule 36(d) affidavit, the court did not allow it to extend the usual thirty-day deadline to appeal because Treat had not initially paid the fee.
Treat appeals again.
II.
That is the procedural history told with some added details that the majority did not provide. We now turn to the testimony taken when the circuit court held the hearing on the State's motion to dismiss because it provides more on what happened, when, and why.
The parties do not dispute that the Rose Bud division lacked an official district court clerk on December 4. Recall that is the day Treat's lawyer sent a request by facsimile to the Rose Bud district clerk's office asking that a certified record of the district court conviction be prepared. Opposing counsel, the Rose Bud city attorney, was copied on the December 4 facsimile. Treat's lawyer told the court during the hearing that he had called the Rose Bud court building and was told by the mayor's assistant that "there was no one working in the Clerk's office."
The district court clerk, Ms. Margo, had left the office on September 15. Her successor, Robin Hill, began on December 6. That is why there was no clerk on December 4 to handle Treat's request. Enter the chief of police. Rose Bud's chief of police, Steven Shaumleffel, confirmed that the Rose Bud District Court received a fax from Treat's lawyer on 4 December 2017. The chief said that he remembered getting a fax but did not understand it "because [he'd] never received a fax before." So he called the city attorney, who had opposed Treat in district court, and asked him what to do. Chief Shaumleffel said that he and clerk Hill certified the docket sheet on December 21. When asked, "Did the City of Rose Bud ever receive payment to certify the docket?" the chief replied, "No." And when Treat's lawyer asked, "But on December 21st, you went ahead and mailed a certified copy of the docket anyway?" The chief said, "Yes sir."
On cross-examination, when asked who answered the calls to the clerk's office if the clerk was not there, Chief Shaumleffel said, "Either I do or my City lady does." The chief agreed it was possible that a woman who worked at the city office did not tell Treat's lawyer that there was a $ 5 fee. Treat's lawyer then asked, "So, if I called and asked if there was a fee and no one told me there was a fee, how would I be expected to know there was a fee?" The chief said, "That's why I went ahead and sent it to you, I guess." The chief later told the court that he mailed the certified docket sheet to Treat's lawyer the same day that he received a postage-prepaid envelope from Treat's attorney. The $ 5 fee had not been paid when the record was sent to Treat's lawyer.
III.
The majority holds, without prior warning in this case of first impression, that Treat's de novo appeal must be dismissed for lack of appellate jurisdiction because he failed to timely file a record in the circuit court. They base their decision in no small measure on Arkansas Code Annotated § 16-17-124 (Supp. 2017), which states:
(a) When required to make a certification of disposition of court proceedings, including without limitation certified copies of the docket, certified copies of civil or small claims judgments, and appeal transcripts, the district court shall collect a fee of not less than five dollars ($ 5.00) per case for preparation of the original.
Subsections (c), (d), and (i) of Arkansas Rule of Criminal Procedure 36 are also at issue. The majority focuses on subsection (c); but we should give subsection (d) pride of place in this case.
(c) How Taken. An appeal from a district court to circuit court shall be taken by filing with the clerk of the circuit court a certified record of the proceedings in the district court. Neither a notice of appeal nor an order granting an appeal shall be required. The record of proceedings in the district court shall include, at a minimum, a copy of the district court docket sheet and any bond or other security filed by the defendant to guarantee the defendant's appearance before the circuit court. It shall be the duty of the clerk of the district court to prepare and certify such record when the defendant files a written request to that effect with the clerk of the district court and pays any fees of the district court authorized by law therefor. The defendant shall serve a copy of the written request on the prosecuting attorney for the judicial district and shall file a certificate of such service with the district court. The defendant shall have the responsibility of filing the certified record in the office of the circuit clerk. Except as otherwise provided in subsection (d) of this rule, the circuit court shall acquire jurisdiction of the appeal upon the filing of the certified record in the office of the circuit clerk.
(d) Failure of Clerk to File Record. If the clerk of the district court does not prepare and certify a record for filing in the circuit court in a timely manner, the defendant may take an appeal by filing an affidavit in the office of the circuit clerk, within forty (40) days from the date of the entry of the judgment in the district court, showing (i) that the defendant has requested the clerk of the district court to prepare and certify the record for purposes of appeal and (ii) that the clerk has not done so within thirty (30) days from the date of the entry of the judgment in the district court. The defendant shall promptly serve a copy of such affidavit upon the clerk of the district court and upon the prosecuting attorney. The circuit court shall acquire jurisdiction of the appeal upon the filing of the affidavit. On motion of the defendant or the prosecuting attorney, the circuit court may order the clerk of the district court to prepare, certify, and file a record in the circuit court.
....
(i) District Court Without Clerk. If a district court has no clerk, any reference in this rule to the clerk of a district court shall be deemed to refer to the judge of the district court.
Ark. R. Crim. P. 36 (2018).
Everyone agrees that Rule 36's thirty-day period is jurisdictional. Roberson v. State , 2010 Ark. 433, at 5, 2010 WL 4524561. Treat did not meet the initial thirty-day deadline, which expired on December 18. Consequently, Treat had to meet the forty-day deadline that appears in Rule 36(d), the so-called "affidavit option." I conclude that he did, given the peculiar facts and Rule 36(d)'s plain terms.
Regarding subsection (c) of Rule 36 and the majority's reliance on it, no case from either this court or the supreme court has held that the subsection's statement that a defendant must "pay any fees of the district court authorized by law" is jurisdictional. And though they apply a "strict compliance" standard, our supreme court has previously used a "substantial compliance" standard in a Rule 36 case. True, the supreme court found that there was no substantial compliance on the facts, but the concept is not a foreign one to Rule 36. Roberson , 2010 Ark. 433, at 5. See also Roberson v. Helder , 794 F.Supp.2d 985 (W.D. Ark. 2011) (federal habeas relief granted to a criminal defendant denied a state court appeal based on an untimely notice of appeal).
This outlier of a case is best decided under subsection (d) of Rule 36. The reason subsection (d), and not subsection (c), governs is because no certified docket was available to Treat within the initial thirty-day period. Eventually, however, the Rose Bud city attorney instructed Chief Shaumleffel to mail the certified docket sheet and record to Treat's lawyer in Little Rock; that was done on December 21. And the chief did so although the city had neither received the $ 5 certification fee nor demanded payment from Treat. By the chief's own testimony, no district court clerk was available to certify the docket when Treat's December 4 request was made. It is also undisputed that no demand to pay a $ 5 fee issued from the clerk's office to Treat. Further, nothing in the record shows that the district judge-the sole person who was authorized to act as clerk in the absence of a clerk-was ever informed about Treat's December 4 certification request. See Ark. R. Crim. P. 36(i).
The unusual facts in this case pushed Treat to subsection (d), and he complied with that subsection of Rule 36. No one contests that. Again, the rule states, "The circuit court shall acquire jurisdiction of the appeal upon the filing of the affidavit." No fee requirement appears in the affidavit option. Nor does section 16-17-124 contain a time limit on when the fee must be paid. In fact, the statute does not even set an exact fee amount to be paid; only a minimum amount is designated.
To sum up: the circuit court dismissed Treat's appeal knowing that in a mere six-to-seven percent of the appeals from district court to circuit court was the fee at issue in this appeal ever collected; no authorized person in the Rose Bud clerk's office demanded payment of a fee to prepare the record for an appeal to circuit court; and the certified record was mailed to Treat by the chief of police although no fee had been paid. Finally, when Treat tendered the fee (albeit late in the process), it could have been accepted and the appeal allowed to proceed in the circuit court but was not.
IV.
This case directly implicates a citizen's right to a de novo appeal from a district court to a circuit court, which includes the inviolate right to a jury trial, among other protections. Given the peculiar circumstances under which the circuit court's dismissal occurred and having applied Rule 36(d)'s plain terms, which do not reference a fee, I would reverse the order of dismissal and reinstate Treat's case in circuit court.
Even if the majority is correct, they should apply the inaugural jurisdictional rule prospectively. Doing so would not only account for the comedy of errors that is this case, it would also protect the appeals (civil and criminal) from district court to circuit court that are currently pending in White County. Given the majority's decision today, we know-to a high degree of confidence based on the FOIA information-that a significant number of appeals to circuit court are now subject to a "no fee paid" dismissal, even if an inquiring pro se party or lawyer was told by a clerk's office that no fee was required.
Vaught, Hixson, and Brown, JJ., join.
Treat's lawyer sent FOIA requests by facsimile to the district court clerks in White County and asked how many cases had been appealed to the White County Circuit Court in the last three years and in how many of those appeals (civil and criminal) had the district clerks collected a fee when asked to certify a record. The record filed in this court shows Treat received responses from clerks in Judsonia, Bald Knob, Searcy, Kensett, and McRae. The clerks in Judsonia, Bald Knob, and Searcy reported that no record-certification fees had been collected for appeals from the district court to the circuit court during the time periods reported. | [
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LARRY D. VAUGHT, Judge
Julian Gifford appeals the Mississippi County Circuit Court's order of judgment in favor of appellee Darrell McGee. Following a bench trial, the court found that McGee had proved the existence of an oral easement entitling him to the use of a portion of Gifford's property for the purpose of maintaining a septic line. We affirm.
The parties are adjoining landowners outside the city of Blytheville. In 1951, Virgil and Betty McGee purchased approximately twelve and a half acres of land. In 1988, they conveyed 1.28 acres of that land to their son, appellee McGee, so that he could build a home on it. He did, and during the process he had his land and his parents' land tested for installation of a septic system. While his own property did "perk," it was not as suitable as a small area of sandy soil on his parents' property, so his parents let him install the field lines on their land.
Stan Simpkins, a friend of the McGee family, purchased 6.09 acres, including the land on which McGee's septic lines were located, from Virgil and Betty McGee in 1995. Simpkins knew about the field lines before he bought the property. He testified the lines never caused him a problem. When asked if he had given McGee permission to keep the field lines in place, Simpkins acknowledged that he had. Simpkins told the court that Virgil McGee had specifically asked Simpkins if it was okay for the lines to remain in place, to which Simpkins had responded that it was fine.
On September 24, 2004, Gifford and his wife purchased the 6.09 acres from Simpkins. Gifford testified that when he bought the land, he was not aware of the existence of the field lines. He testified that about a month after he bought the land, McGee approached him and told him about the field lines. Gifford asserts that he gave McGee permission to keep the field lines. McGee denies ever having a conversation with Gifford about being able to keep his field lines in place. McGee took the position that he had never asked Gifford's permission to maintain the septic lines because his father had granted him that right.
David Beary, an expert on septic systems with the Arkansas Department of Health, testified that Gifford asked him to investigate the field lines and that he found no evidence of sewage in the pasture, but there was a strong odor of sulphur that likely came from other sources. Beary also noted that there was really no other spot that would meet the criteria for locating septic field lines but that McGee could likely obtain a waiver of the regulations and install a "non-typical system."
McGee's land is located approximately 800 feet from the nearest city of Blytheville sewer line. Gifford testified that he planned to build his home on his land and planned to connect to the city sewer. It was undisputed that Gifford could not install his own septic system on the land as long as McGee's lines remained in place.
Following the bench trial, the court found that McGee had an oral easement for the field lines and that Gifford should have, with reasonable diligence, discovered the existence of the field lines before he bought the property. Gifford filed a motion for reconsideration within ten days of the entry of judgment, which was deemed denied. He filed a timely notice of appeal.
"In civil bench trials, the standard of review on appeal is whether the circuit court's findings were clearly erroneous or clearly against a preponderance of the evidence." Peregrine Trading, LLC v. Rowe , 2018 Ark. App. 176, at 1, 546 S.W.3d 518, 520. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with a firm conviction that a mistake has been committed. Id. at 1-2, 546 S.W.3d at 520. Facts in dispute and determinations of credibility are solely within the province of the fact-finder. Id.
On appeal, Gifford argues that the circuit court erred in finding that McGee proved by clear and convincing evidence the existence of an oral easement. The Arkansas Supreme Court has held that an easement is effective in the absence of a writing if certain elements are met: it must be accompanied by (1) consideration, (2) action and reliance on the grant, and (3) the grantees being permitted the granted use. Warren v. Cudd , 261 Ark. 690, 693, 550 S.W.2d 773, 776 (1977). Gifford does not challenge the sufficiency of the proof as to these elements but cites Hannah v. Daniel , 221 Ark. 105, 252 S.W.2d 548 (1952), for the rule that an oral easement is binding on the purchaser of a servient piece of property only if the purchaser had actual or constructive knowledge of the easement.
The general rule is that whatever puts a party upon inquiry amounts in judgment of law to notice, provided the inquiry becomes a duty as in the case of vendor and purchaser, and would lead to the knowledge of the requisite fact, by the exercise of ordinary diligence and understanding. Or as the rule has been expressed more briefly, where a man has sufficient information to lead him to a fact, he shall be deemed cognizant of it.
Hannah , 221 Ark. at 108, 252 S.W.2d at 550.
Here, Gifford argues that the court erred in finding that the easement was apparent to him at the time of purchase. Gifford's argument ignores the fact that, in addition to finding that he had constructive notice of the easement based on the conditions on and around the property, the court also found that Gifford had been specifically told of the easement, citing the testimony of both McGee and Simpkins. The court noted that Gifford challenged McGee's credibility and acknowledged that his testimony was self-serving but found that it had been corroborated by Simpkins. The court specifically found Simpkins to be a credible witness. We will not attempt to weigh the evidence or assess the credibility of witnesses because as that responsibility lies with the trier of fact. Bobo v. Jones , 364 Ark. 564, 567-68, 222 S.W.3d 197, 200 (2006) (citing Williams v. State , 338 Ark. 178, 992 S.W.2d 89 (1999) ). We have repeatedly held that the circuit court is in the superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id. We therefore affirm the circuit court's finding that Gifford had notice of the septic lines when he purchased his property.
To the extent that Gifford also argues that the court erred in not finding that the oral easement was barred by the statute of frauds or that the nature of the easement changed significantly after he purchased the property, both his arguments hinge again on his contention that the septic lines were not apparent when he purchased the property. Because we conclude that there was no reversible error in the circuit court's finding that Gifford had actual and constructive notice of the presence of the septic lines, we affirm as to these legal arguments as well.
Affirmed.
Gruber, C.J., and Whiteaker, J., agree.
Gifford's wife later quitclaimed her interest to him in their 2011 divorce. | [
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The Garnishee failed to impound the sum of $ 66,569.58 that it had in its possession.
The Garnishee is liable to the Plaintiff in the same amount the Garnishee had in its possession.
Pursuant to [Ark. Code Ann.] § 16-110-406(a), which governs garnishee banks, this Court grants judgment to the Plaintiff.
II.
This appeal requires us to interpret statutes, so the standard of review is de novo. Wal-Mart Stores, Inc. v. D.A.N. Joint Venture III, L.P. , 374 Ark. 489, 490-91, 288 S.W.3d 627, 629 (2008). Here are the two main statutory sections at issue in the case. Arkansas Code Annotated section 4-4-303, which the bank says controls this case, states:
(a) Any knowledge, notice, or stop-payment order received by, legal process served upon, or setoff exercised by a payor bank comes too late to terminate, suspend, or modify the bank's right or duty to pay an item or to charge its customer's account for the item if the knowledge, notice, stop-payment order, or legal process is received or served and a reasonable time for the bank to act thereon expires or the setoff is exercised after the earliest of the following:
(1) The bank accepts or certifies the item;
(2) The bank pays the item in cash;
(3) The bank settles for the item without having a right to revoke the settlement under statute, clearinghouse rule, or agreement;
(4) The bank becomes accountable for the amount of the item under § 4-4-302 dealing with the payor bank's responsibility for late return of items; or
(5) With respect to checks, a cutoff hour no earlier than one (1) hour after the opening of the next banking day after the banking day on which the bank received the check and no later than the close of that next banking day or, if no cutoff hour is fixed, the close of the next banking day after the banking day on which the bank received the check.
(b) Subject to subsection (a), items may be accepted, paid, certified, or charged to the indicated account of its customer in any order.
Ark. Code Ann. § 4-4-303 (Repl. 2001) (emphasis added). Section 4-4-303, comment 6, states that the mere receipt of the writ by the bank does not mean that the writ can be immediately acted on. Comment 6 to Ark. Code Ann. § 4-4-303 (Repl. 1995) (Vol. A). "Usually a relatively short time is required to communicate to the accounting department advice of one of these events but certainly some time is necessary." Id.
In contrast, Arkansas Code Annotated section 16-110-406, which the General Assembly enacted early in the twentieth century, provides:
(a) If any garnishee that is a bank, savings bank, or trust company domiciled in this state, after having been served with a writ of garnishment ten (10) days before the return day thereof, shall neglect to answer on or before the return day the writ or any interrogatories which have been exhibited against it, the court or justice before whom the matter is pending shall enter judgment in general terms against the garnishee. The general judgment shall be deemed to be for costs of the garnishment and for an amount not exceeding the full amount specified in the plaintiff's judgment against the original defendant and also not exceeding the amount or value in which at the time when served and thereafter up to and including said return day the garnishee was indebted, or had in its hands or possession goods, chattels, moneys, credits, and effects belonging to the original defendant.
(b) At any time after the general judgment the plaintiff may have, from the court or justice in the matter, a discovery against the garnishee and at its cost to ascertain the specific amount due thereunder.
Ark. Code Ann. § 16-110-406 (Repl. 2016) (emphasis added). An interpretation of a statute by an appellate court becomes a part of the statute itself. Pifer v. Single Source Transp. , 347 Ark. 851, 857, 69 S.W.3d 1, 4 (2002). Arkansas's appellate courts have long interpreted garnishment statutes like this one to mean that a creditor-garnishor has a lien on all the defendant's property as soon as the writ is served on the garnishee. Woodcock v. First Commercial Bank , 284 Ark. 490, 683 S.W.2d 605 (1985) ; see also L & S Concrete Co. v. Bibler Bros. , 34 Ark. App. 181, 186, 807 S.W.2d 50, 52 (1991) (relying on Magnolia Petroleum Co. v. Wasson , 192 Ark. 554, 92 S.W.2d 860 (1936) ). Immediately, in other words.
Here, Eagle Bank argues that it should not be liable for the amount transferred from Bid Central's account on August 4 because section 4-4-303 gives banks a reasonable time to comply with legal process, garnishments are included in the "legal process" category, and the bank did not have a reasonable time to prevent the wire transfer. According to the bank, the circuit court erred when it deemed the section "not applicable" and declined to determine whether the bank had a reasonable time to comply with the writ. The bank points to cases from other states' courts that have rejected the view that a writ of garnishment is immediately effective upon service because the Uniform Commercial Code provides banks a reasonable time after receiving a writ of garnishment to process it. See Harbor Bank of Maryland v. Hanlon Park Condo. Ass'n Inc. , 153 Md.App. 54, 834 A.2d 993 (2003) (holding that bank's liability did not begin the moment that judgment creditor served writ of garnishment); see also W & D Acquisition, LLC v. First Union Nat'l Bank , 262 Conn. 704, 817 A.2d 91 (2003) (holding that what is a reasonable time period in which a bank must comply with garnishment process is a factual question). Raynor maintains that the circuit court's "spot-on interpretation and application of the law in light of the facts of this case" should be affirmed because Arkansas law has long required the bank to have immediately impounded the funds Bid Central deposited into its open-then-closed-then-reopened account on August 4; and because the bank failed to do so, the judgment is legally justified.
Eagle Bank's reliance on cases from Maryland and Connecticut, for example, is understandable. See 3A Norman J. Singer, Sutherland Statutory Construction § 68:2 (8th ed.) ("Where a legislature adopts a statutory provision modeled on a uniform act, courts refer to decisions from other states and the federal judiciary and construe the act the same way as other jurisdictions to provide consistency and uniformity in the law."). Our research has not returned one Arkansas Supreme Court decision that has interpreted section 16-110-406 since it did so in Woodcock ; only one unpublished court of appeals opinion was located. And no appellate decision in Arkansas has yet addressed section 4-4-303 in a postjudgment garnishment proceeding.
Assuming, but not deciding, that Eagle Bank properly answered the writ of garnishment, we agree with the circuit court that the bank was required to hold nonexempt money belonging to Bid Central as soon as the writ was served on the bank. Section 16-110-406 requires a bank to lien all money "at the time" the writ is "served." See also Ark. Code Ann. § 16-110-403 (providing that the interrogatories request the garnishee to recite any money it possesses "at the time of the service of the writ or any time thereafter"). We grant that section 4-4-303 permits a "payor bank" a "reasonable time" to process a legal document after it is "received" or "served." (We are not, however, deciding whether Eagle Bank was in fact a payor bank under the statute. We only assume for the sake of answering the timing question that it was.) Because the garnishment statute is the more specific one relative to the particular question at hand, we hold that it is the controlling authority. A general statute yields to a specific one involving the same subject matter. Bd. of Trs. for City of Little Rock Police Dep't Pension & Relief Fund v. Stodola , 328 Ark. 194, 201, 942 S.W.2d 255, 258 (1997). In this case, we are bound by the garnishment statutes and our supreme court's prior interpretations of them.
Article 4 defines the rights between parties with respect to bank deposits and collections. Comment 3 to Ark. Code Ann. § 4-4-101. The article was drafted and updated to remove state-law barriers so that banks could use automated systems to process and collect checks. Comment 2 to Ark. Code Ann. § 4-4-101. See also Ark. Code Ann. §§ 4-4A-101 to -507 (Repl. 2001 & Supp. 2017) (statutes governing wire transfers). Article 4 does not, however, enact a scheme by which a judgment creditor may pursue satisfaction against a judgment debtor, which is the essential purpose of this state's garnishment laws. See, e.g. , Ark. Code Ann. §§ 16-110-401 to -417.
We hold that the circuit court did not err in applying the garnishment statutes instead of Article 4 and affirm its judgment.
Affirmed.
Klappenbach and Glover, JJ., agree. | [
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N. MARK KLAPPENBACH, Judge
Santos Ivan Mitjans appeals the order of the Johnson County Circuit Court terminating his parental rights to his children, JH and SH. Mitjans contends that there was insufficient evidence to support terminating his parental rights and that his due-process rights were violated. We affirm.
Two-year-old JH and one-year-old SH were removed from the legal custody of their mother, Breonna Hogue, on May 6, 2016. The Arkansas Department of Human Services (DHS) exercised an emergency hold on the children after their infant half-brother IH was discovered to have suffered physical abuse, medical neglect, and inadequate supervision while in the care of Hogue and IH's putative father, Lamar Williams. JH and SH were with Mitjans when DHS attempted to place the hold on them, and after some resistance, Mitjans brought them to the DHS office. Mitjans attended the probable-cause hearing on May 16, 2016, where the court ordered him to submit to random drug screens as requested by DHS, to attend and complete parenting classes, to obtain and maintain stable and appropriate housing, and to obtain and maintain stable and gainful employment.
JH and SH were subsequently adjudicated dependent-neglected on the basis that they were at substantial risk of serious harm due to the abuse of their sibling, IH. Mitjans did not attend the adjudication hearing or any of the seven review and permanency-planning hearings that followed. In November 2017, DHS filed a petition to terminate the parental rights of Mitjans, Hogue, and Williams. Mitjans appeared at the December 2017 termination hearing and requested an attorney. The court granted a continuance as to Mitjans but terminated the rights of Hogue and Williams. Mitjans was appointed an attorney, and the hearing to terminate his rights was held on February 20, 2018.
Mitjans and Mahogany Smith, the caseworker, were the only witnesses at the hearing. Shortly after the probable-cause hearing, Mitjans moved to Miami, Florida, to live with his family because he was on parole and did not have anyone in Arkansas with whom he could live. Smith said that Mitjans was aware of his court-ordered obligations that were announced at the probable-cause hearing and had been given a copy of the order, but he had not complied. Smith described her contact with Mitjans as "hit and miss," noting that he had not had a telephone for a long time. Mitjans had used FaceTime to communicate with the children once or twice a month when they had visits with Hogue. Smith said that this contact was sporadic and that he had not had any in-person contact with the children since May 2016.
Smith said that in June 2017, she started requesting information for an ICPC home study on Mitjans's home in Florida, but Mitjans had not complied. He had finally returned some of the necessary forms four days before the termination hearing, but they were incomplete. Smith testified that Mitjans did not seem concerned with having to "step up" because he believed Hogue would have the children returned to her. Mitjans said that he lived in a three-bedroom, one-bathroom home in Miami with his parents and adult sister, who was a felon and had declined to provide her information for the background checks required for the home study. He believed that there was enough room in the home for the children and said that his son could sleep with him and his daughter could sleep with his mother. He said that when he had enough money saved he planned to move out and marry his girlfriend and could possibly move to Arkansas; however, he had not been able to save any money yet. He did not have a car.
Mitjans had convictions for hot checks and residential burglary and said his parole was ending in two months. He said that he understood the court's orders but suggested that Smith had discouraged him from doing the things required to get placement of the children due to the fact that he is a felon and Smith had been trying to reunite the children with Hogue Mitjans said that he had been employed at his current job for almost six months and had held a job prior to that for six to eight months before leaving to earn more money. He denied that Smith had requested paystubs. DHS had been unable to give Mitjans random drugs screens, but he testified that he tested negative when screened every other month for his parole. Mitjans had contacted the DHS office in Miami a few weeks before the termination hearing regarding parenting classes; Smith said that she had told him to do so in 2016. Smith said that the children were very likely to be adopted and were currently placed in a foster home willing to adopt them along with their half sibling, IH. The circuit court ruled from the bench that it was terminating Mitjans's rights based on the "subsequent factors" ground.
We review termination-of-parental-rights cases de novo. Sarut v. Ark. Dep't of Human Servs. , 2015 Ark. App. 76, 455 S.W.3d 341. At least one statutory ground must exist, in addition to a finding that it is in the child's best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341 (Supp. 2017). In making a "best interest" determination, the circuit court is required to consider two factors: (1) the likelihood that the child will be adopted and (2) the potential of harm to the child if custody is returned to a parent. Sarut, supra. The appellate inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. Credibility determinations are left to the fact-finder. Id.
Mitjans argues that the circuit court erred in terminating his parental rights based on the subsequent-factors ground because this ground was not alleged against him in DHS's petition. He contends that termination on this ground violates his due-process rights. Mitjans argues that only two grounds for termination were alleged against him in the petition-willful failure to maintain meaningful contact, section 9-27-341(b)(3)(B)(ii), and abandonment, section 9-27-341(b)(3)(B)(iv) -and the circuit court had granted his motions to dismiss on these grounds. Mitjans relies on Jackson v. Arkansas Department of Human Services , 2013 Ark. App. 411, 429 S.W.3d 276, in arguing that his termination based on a ground not pled must be reversed.
In Jackson , the ground regarding failure to maintain meaningful contact was not alleged in the petition and was not argued by DHS at the hearing. Furthermore, the circuit court took the matter under advisement and did not make a ruling from the bench. The first time this ground was ever specifically mentioned as a ground for termination was in the circuit court's order terminating Jackson's parental rights. We held that
[b]ecause Jackson was never specifically informed that this ground was being asserted against him, Jackson was denied the opportunity to fully develop a defense to this ground or to adequately address this ground during closing arguments. Thus, the trial court's reliance on this ground to support termination was clearly erroneous. Due process dictates that Jackson be afforded an opportunity to properly defend the allegations against him prior to terminating his parental rights.
Jackson , 2013 Ark. App. 411, at 7, 429 S.W.3d 276, 280. Mitjans argues that although the subsequent-factors ground was included in the petition, it was alleged against only Hogue and there were no facts pled by DHS to apprise him that this was a ground on which his rights could be terminated. He argues that here, as in Jackson , DHS did not request that the pleadings conform to the proof.
DHS argues that the subsequent-factors ground was pled against Mitjans and that he failed to preserve a due-process argument. We agree. The petition in this case sought to terminate the rights of Mitjans, Hogue, and Williams. Four grounds for termination are cited. The first ground, failure to remedy the conditions that caused removal, is alleged only against Hogue. The second ground, willful failure to maintain meaningful contact, is alleged against "the fathers." The subsequent-factors ground is quoted in the next paragraph, followed by eight sentences addressing Hogue. This paragraph appears to continue onto the next page, however, with one sentence addressing both fathers: "That neither father has maintained meaningful contact with their respective children." The abandonment ground is alleged against "the fathers" in the next paragraph.
After DHS rested, Mitjans moved for a "directed verdict," arguing that DHS had failed to prove either best interest or the only two grounds alleged in the petition-willful failure to maintain meaningful contact and abandonment. A discussion then ensued between the court, Mitjans's attorney, and the DHS attorney, Mr. Lester, regarding which grounds DHS had alleged against Mitjans. Part of the discussion was as follows:
MR. LESTER : And, Judge, and also subsequent factors. Now, I didn't specifically list the grounds as to Mr. Mitjans; however, it was to the parent and not the - - not just the mother exclusively, so - -
THE COURT : ... It's true you do say "parent and the subsequent issues" but the meat of the allegations are all mom. "Mom didn't do this. Mom didn't do that."
MR. LESTER : That is correct, Your Honor. But, I mean, the fact is, Mr. Mitjans has been MIA throughout the case - -
THE COURT : Right.
MR. LESTER : - - and has not done anything. I mean, there's not really - - he doesn't have any - - there's nothing for me to point to say, "He"-
THE COURT : You're proving nothing exists, right?
After further discussion regarding other grounds, the court ruled that it was granting Mitjan's motion Mitjans's motion to dismiss on the abandonment ground and denying the motion as to failure to maintain meaningful contact. Although Mitjans had made no motion or argument regarding the subsequent-factors ground, the court stated that it was denying his motion on that ground and that
even though most of the details they allege were mom's situations, I think they had enough here to put dad on notice and I think they followed through with the - - you know, enough subsequent issues for us to continue here. So I'm going to deny the motion on that.
Mitjans's attorney made no comment regarding this ground. At the conclusion of the hearing, the court ruled from the bench that DHS had proved the subsequent-factors ground, noting Mitjans's failure to complete parenting classes, failure to submit to random drug screens, failure to have a suitable home, and failure to cooperate with DHS. The court dismissed the ground of failure to maintain meaningful contact.
Unlike in Jackson , here, the subsequent-factors ground was argued by DHS at the termination hearing, and the court found that it had been sufficiently pled. The circuit court did not take the matter under advisement but instead ruled from the bench that it was terminating based on this ground. Mitjans did not object or make any argument regarding DHS and the court's reliance on this ground either during the discussion regarding which grounds were pled or upon the court's ruling. We have held that permitting the introduction of proof on an issue not raised in the pleadings constitutes an implied consent to trial on that issue. Anthony v. Ark. Dep't of Human Servs. , 2013 Ark. App. 556 (holding that mother failed to preserve argument that the facts supporting termination occurred after the petition to terminate had been filed). As in Edwards v. Arkansas Department of Human Services , 2016 Ark. App. 37, 480 S.W.3d 215, Mitjans never raised an argument below about lack of notice or failure to properly plead grounds. Even in termination cases, we will not address arguments raised for the first time on appeal. Sills v. Ark. Dep't of Human Servs. , 2018 Ark. App. 9, 538 S.W.3d 249. Any argument regarding a lack of factual specificity in the petition to terminate parental rights is also precluded by the failure to object below. Chaffin v. Ark. Dep't of Human Servs. , 2015 Ark. App. 522, 471 S.W.3d 251.
Mitjans does not challenge the sufficiency of the evidence supporting the subsequent-factors ground. His only remaining argument is that insufficient evidence supported the circuit court's best-interest finding. However, his argument on this point is limited to his claim that the best-interest finding was clearly erroneous because the circuit court found that his contact with the children had constituted meaningful contact. His argument appears to be based on the fact that a lack of meaningful contact was the only fact pled regarding best interest in the termination petition. However, Mitjans cites no authority for the proposition that the circuit court was not entitled to consider all the evidence to support a best-interest determination. Here, the circuit court considered the evidence that the children were very likely to be adopted and the potential harm if placed in Mitjans's custody due to his failure to obtain a suitable home and to comply with court orders after the case had been ongoing for twenty-one months. We hold that the circuit court's finding that termination was in the children's best interest is not clearly erroneous.
Affirmed.
Virden and Harrison, JJ., agree.
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Hart, J., dissents.
I dissent. Obviously, child pornography is condemnable, and while I agree with the majority's holding that a double-jeopardy violation is a cognizable claim in state habeas proceedings, I disagree with its holding that Pelletier's claim is without merit. The ugliness of a given criminal act cannot supersede the most basic and fundamental tenets of our criminal justice system. Based on the facts of this case, the State of Arkansas could only lawfully convict Pelletier of, at most, one count of violating Ark. Code Ann. § 5-27-602 (Repl. 2013).
Double jeopardy has long been a fundamental principle in American criminal law. "The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Pleading guilty does not waive the right to claim a double-jeopardy violation. Haring v. Prosise , 462 U.S. 306, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983).
The principle of double jeopardy is no less applicable under the law of Arkansas. Arkansas Code Annotated section 5-1-110 (Repl. 2013) provides in relevant part:
(a) When the same conduct of a defendant may establish the commission of more than one (1) offense, the defendant may be prosecuted for each such offense. However, the defendant may not be convicted of more than one (1) offense if:
(1) One (1) offense is included in the other offense, as defined in subsection (b) of this section;
(2) One (1) offense consists only of a conspiracy, solicitation, or attempt to commit the other offense;
(3) Inconsistent findings of fact are required to establish the commission of the offenses;
(4) The offenses differ only in that one (1) offense is defined to prohibit a designated kind of conduct generally and the other offense to prohibit a specific instance of that conduct; or
(5) The conduct constitutes an offense defined as a continuing course of conduct and the defendant's course of conduct was uninterrupted, unless the law provides that a specific period of the course of conduct constitutes a separate offense.
For example, in Watson v. State , a case in which the defendant was charged and convicted of three counts of theft by receiving where all of the stolen property had been acquired in a single transaction, this court held as follows:
The basis of the crime, therefore, is receiving the stolen property. The petitioner did that during one transaction. See Gilmore v. State , 710 S.W.2d 355 (Mo. App. [E.D.] 1986). In Rowe v. State , 271 Ark. 20, 607 S.W.2d 657 (1980), we said that a continuing offense must be a continuous act or series of acts set on foot by a single impulse and operated by an unintermittent force. In this case the petitioner received the stolen property only once, not on several occasions. Under these circumstances we hold that only one conviction for theft by receiving should lie. See Yarbrough v. State , 257 Ark. 732, 520 S.W.2d 227 (1975). Although this issue was not raised at trial, it involves a question of double jeopardy which if meritorious is sufficient to void the judgment.
295 Ark. 616, 618, 752 S.W.2d 240, 241 (1988) (emphases added).
The penal statute Pelletier was charged under provides in relevant part as follows:
(a) A person commits distributing, possessing, or viewing of matter depicting sexually explicit conduct involving a child if the person knowingly:
(1) Receives for the purpose of selling or knowingly sells, procures, manufactures, gives, provides, lends, trades, mails, delivers, transfers , publishes, distributes, circulates, disseminates, presents, exhibits, advertises, offers, or agrees to offer through any means, including the Internet, any photograph, film, videotape, computer program or file, video game, or any other reproduction or reconstruction that depicts a child or incorporates the image of a child engaging in sexually explicit conduct; or
(2) Possesses or views through any means, including on the Internet, any photograph, film, videotape, computer program or file, computer-generated image, video game, or any other reproduction that depicts a child or incorporates the image of a child engaging in sexually explicit conduct.
Ark. Code Ann. § 5-27-602 (Repl. 2013) (emphases added). Penal statutes are subject to the rule of lenity, "which requires not only that a criminal statute be strictly construed in favor of one accused, but that nothing may be left to intendment and all doubts must be resolved in favor of the defendant in construing such statutes." Austin v. State , 259 Ark. 802, 804, 536 S.W.2d 699, 700 (1976) ; see also Bell v. United States , 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955).
Finally, it is well settled that an "illegal" sentence may be challenged at any time. Donaldson v. State , 370 Ark. 3, 257 S.W.3d 74 (2007). An "illegal" sentence is defined as "one which the trial court lacks the authority to impose, even if on its face the sentence is within the statutory range." Id.
Turning to the merits of Pelletier's claim, based on the facts of this case, I cannot agree with the majority's conclusion:
[F]or double-jeopardy purposes, there is no distinction between possession under section 5-27-602(a)(2) and the prohibited activities listed in 5-27-602(a)(1). Each photograph that is distributed in violation of section 5-27-602(a)(1) can support a separate charge. Appellant does not dispute that the email he sent contained thirty separate photographs depicting children engaging in sexually explicit conduct. We reject appellant's argument that Rea is distinguishable on the basis that appellant was convicted of a violation of section 5-27-602(a)(1).
The most important aspect of Pelletier's claim, which the majority fails to address in its analysis and only nominally acknowledges at the beginning of its opinion, is that Pelletier was living in Texas when he executed the single click of the "send" button on his computer, which sent a single e-mail with a single attached file containing thirty images of child pornography to a single undercover police officer in Faulkner County, Arkansas. There is one single actus reus at issue here. This fact is significant because Pelletier was charged with thirty counts of violating Ark. Code Ann. § 5-27-602(a)(1), the "transfer" provision of the statute, and not thirty counts of violating Ark. Code Ann. § 5-27-602(a)(2), the "possession" provision of the statute.
Indeed, the prosecutor could not charge and convict Pelletier under the "possession" provision of the statute because Pelletier never "possessed" anything within the boundaries of the State of Arkansas. Rea is not distinguishable just because the defendant there was charged under the "possession" provision of the statute, but also because the defendant there "possessed" all the images on his computer inside the boundaries of Arkansas. See generally Rea v. State , 2015 Ark. 431, 474 S.W.3d 493. Here, the question was not whether any explicit material was "possessed," but whether it was "transferred" within the meaning of the prohibited activities listed in Ark. Code Ann. § 5-27-602(a)(1) (Repl. 2013), and the only act that could even potentially constitute such a "transfer" directed to the State of Arkansas was Pelletier's single click of the "send" button on August 14, 2012. Even though we are addressing Ark. Code Ann. § 5-27-602, the "possession" provision of which was at issue in Rea (and not the "transfer" provision at issue in this case), this case is far closer to Watson , as it addresses a single transfer of multiple items of contraband. Proving that Pelletier engaged in thirty individual violations of Ark. Code Ann. § 5-27-602(a)(1) on these facts would have involved the presentation of the exact same proof at trial for each separately alleged violation.
Accordingly, the State of Arkansas could only convict Pelletier of, at most, one count of violating Ark. Code Ann. § 5-27-602(a)(1). Pelletier's additional twenty-nine convictions and sentences under the exact same statutory provision on the exact same facts violate double jeopardy. The majority's decision to the contrary is at odds with the conclusions reached by our sister states when addressing similar situations. See, e.g. , Washington v. Sutherby , 204 P. 3d 916 (Wash. 2009) (en banc) (10 images); Commonwealth v. Rollins , 470 Mass. 66, 18 N.E.3d 670 (2014) (100 images); Washington v. Furseth , 156 Wash.App. 516, 233 P.3d 902 (Wash. 2010) (multiple images); Castanada v. Nevada , 373 P.3d 108 (Nev. 2016) (15 images); People v. Hertzig , 156 Cal.App.4th 398, 67 Cal.Rptr.3d 312 (2007) (30 images); State v. Liberty , 370 S.W.3d 537 (Mo. 2012) (8 images); State v. Olsson , 324 P.3d 1230 (N.M. 2014) (60 images); State v. Pickett , 211 S.W.3d 696 (Tenn. 2007) (11 images); People v. McSwain , 358 Ill.Dec. 152, 964 N.E.2d 1174 (Ill. App. Ct. 2012) (one e-mail with 5 images); People v. Manfredi , 169 Cal.App.4th 622, 86 Cal.Rptr.3d 810 (2008) (46 images).
For these reasons, I would reverse. | [
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Affirmed. | [
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PHILLIP T. WHITEAKER, Judge
Appellant, the Arkansas State Military Department, Public Employee Claims Division (ASMD), appeals an order of the Arkansas Workers' Compensation Commission (Commission) finding that appellee, Allen Jackson, was entitled to a 37 percent anatomical-impairment rating to the left lower extremity as well as a 40 percent wage-loss award. ASMD contends that the evidence submitted was insufficient to support the Commission's award. We find no error and affirm.
I. Injury and Medical History
Jackson, age 67, was employed as a history teacher by ASMD. He suffered admittedly compensable lower back and left leg injuries after a fall at work. At the time of his accident, Jackson was suffering from post-polio syndrome which resulted in paralysis of his right leg and partial paralysis of his left leg. However, he had been ambulatory with the use of a crutch and a leg brace and had been quite active prior to the fall.
Jackson received medical care for his work-related injuries. Dr. John Adametz treated Jackson initially and diagnosed him with hip pain, a lumbar strain, and a strain of the left knee. When an MRI revealed an acute compression fracture at L1 and a large disc herniation at L4-5, Dr. Adametz recommended surgery on Jackson's back, but Jackson declined. Dr. Adametz released Jackson to maximum medical improvement (MMI) on July 12, 2016.
Jackson was treated by Dr. Eric Gordon for his knee injury. Dr. Gordon noted left knee pain with effusion secondary to injury and osteoarthritis ; tibial plateau fracture lateral plateau, nondisplaced and closed; patella baja; and a sprain. He also noted a faulty general knee ligament, likely due to Jackson's history of polio, and resulting muscular weakness. Dr. Gordon aspirated the knee, but Jackson's symptoms returned. Dr. Gordon recommended a total knee arthroplasty, but Jackson declined this surgery as well.
Dr. Gordon released Jackson to MMI on August 16, 2016, with a desk-work restriction. Based on objective measures and the AMA Guides to the Evaluation of Permanent Impairment , Fourth Edition, Dr. Gordon opined that Jackson had sustained a 37 percent impairment to the left lower extremity which translates to a 15 percent impairment to the whole person. Dr. Gordon ultimately concluded that 50 percent of Jackson's impairment rating was attributable to his preexisting condition and 50 percent to his compensable injury.
Jackson was treated by Dr. Carlos Roman for pain management. As to Jackson's knee, Dr. Roman noted that Jackson had cruciate and collateral ligament laxity of a severe nature and that any knee replacement surgery would be related to his underlying arthritis. He deferred to Dr. Gordon's assessment of impairment as it related to Jackson's knee injury. As for his lumbar spine, Dr. Roman indicated that Jackson had a compression fracture at L1 and a large disc herniation laterally at L4-L5 superiorly with significant rotation of the spine with possible foraminal narrowing at that point. He observed a significant rotary scoliosis that was degenerative in nature and not the result of the injury. He also noted degenerative-disc disease associated with his weak musculature. He opined that it was difficult to differentiate the nerve pain and weakness associated with Jackson's injury from that associated with his polio. Additionally, he noted that degenerative-disc disease in scoliosis, including disc bulges, was very common. Dr. Roman stated that he did not think any further interventions or procedures were indicated for Jackson's work-related injury to his back. However, he then opined, to a reasonable degree of medical certainty, that the L1 compression fracture could be attributed to Jackson's workplace injury, that Jackson suffered back pain from that, and that he had reached MMI. He subsequently opined that Jackson had sustained a 5 percent impairment to the body as a whole as a result of his back injury.
After a request for a change of physician, Jackson was treated by Dr. Vestal Smith. Dr. Smith opined that Jackson had sustained a 5 percent impairment rating for the lumbar compression fracture ; a 5 percent impairment rating for the degenerative changes at L4-L5; and, when combined with Dr. Gordon's assessment of 15 percent impairment of the whole person for the lower extremity, that he had sustained a 23 percent impairment of the whole person.
II. Claims Before the Commission
Jackson filed a claim with the Commission and proceeded to a hearing before an administrative law judge (ALJ) on the issues of a 37 percent permanent physical impairment rating to the left lower extremity, as well as permanent- and total-disability benefits or alternatively wage-loss disability and controverted attorneys' fees.
The ALJ found that Jackson sustained a permanent physical impairment rating in the amount of 10 percent to the body as a whole as the result of the lumbar injury and 37 percent to the left lower extremity as a result of the left knee injury ; that he suffered a loss of earning capacity/wage-loss disability in the amount of 40 percent over and above his anatomical impairment; and that he was entitled to the maximum attorney-fee award on the controverted indemnity benefits awarded. ASMD timely appealed the ALJ's opinion to the Commission as it related to his impairment rating and wage-loss award. The Commission affirmed and adopted the ALJ's decision. Under Arkansas law, the Commission is permitted to adopt the ALJ's opinion. SSI, Inc. v. Cates , 2009 Ark. App. 763, 350 S.W.3d 421. In so doing, the Commission makes the ALJ's findings and conclusions the findings and conclusions of the Commission. Id. Therefore, for purposes of our review, we consider both the ALJ's opinion and the Commission's majority opinion. Id.
III. Analysis
On appeal from the Commission's ruling, ASMD challenges the sufficiency of the evidence to support its determination of a 37 percent impairment rating and the 40 percent wage-loss award. We review the Commission's decision in the light most favorable to its findings and affirm when the decision is supported by substantial evidence. Parker v. Atl. Research Corp. , 87 Ark. App. 145, 189 S.W.3d 449 (2004). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The Commission has the duty to make determinations of credibility, to weigh the evidence, and to resolve conflicts in medical testimony and evidence. Martin Charcoal, Inc. v. Britt , 102 Ark. App. 252, 284 S.W.3d 91 (2008). If reasonable minds could reach the result found by the Commission, the appellate court must affirm. Prock v. Bull Shoals Boat Landing , 2014 Ark. 93, 431 S.W.3d 858.
ASMD first contends that the Commission's finding of 40 percent wage-loss disability is not supported by substantial evidence. In support of its claim, ASMD notes that Jackson injured his back and his left leg when he fell while walking through a classroom. ASMD acknowledges Jackson's claims that the fall was "violent" and his injuries "excruciating." ASMD contends, however, that Jackson's claims are not supported by the evidence, because Jackson was diagnosed only with a mild compression fracture of his back and a knee strain, for which no surgeries were performed or planned. Additionally, ASMD emphasizes Jackson's educational and employment history. Academically, Jackson has a bachelor's degree and master's degree in education from UALR and has received exceptional academic recognition. Professionally, in addition to his teaching tenure, Jackson has previous work experience as a top producing professional radio broadcaster/announcer/news director in the Dallas area and as an operator of a successful satellite television business. ASMD further notes that Jackson had been successful in patenting four different items that he was currently trying to market and "monetize" and that he was currently working on a book about the Declaration of Independence and the Constitution. ASMD asserts that Jackson is able to manage a business and supervise employees; he reads well, types, and can operate a computer; he can also balance a checkbook, operate a smartphone, and drive a vehicle. Thus, ASMD contends that Jackson possesses numerous skills that would allow him to find a job if he were motivated to do so. Most importantly, ASMD notes that Jackson elected retirement for financial reasons instead of looking for other employment within his skill set. Based on the foregoing, ASMD contends that substantial evidence militates against a wage-loss determination. We now consider ASMD's arguments in connection with the law of workers' compensation benefits.
Pursuant to Arkansas Code Annotated section 11-9-522(b)(1) (Repl. 2012), when a claimant has an impairment rating to the body as a whole, the Commission has the authority to increase the disability rating based on wage-loss factors. Redd v. Blytheville Sch. Dist. No. 5 , 2014 Ark. App. 575, 446 S.W.3d 643. Here, Jackson has an impairment rating to the body as a whole, and the Commission was within its authority to consider wage-loss factors. In doing so, the Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other matters affecting wage loss, such as the claimant's age, education, and work experience. Emerson Elec. v. Gaston , 75 Ark. App. 232, 58 S.W.3d 848 (2001).
The ALJ and the Commission went into great detail recounting the facts related to the wage-loss factors. It is clear that the Commission considered Jackson's education and work-related experiences. Likewise, the Commission considered the medical evidence and Jackson's physical limitations, both before and after the work-related accident. The Commission even considered Jackson's motivation to return to work, because a lack of interest or a negative attitude and an injured employee's motivation to return to work can be considered by the Commission in assessing the employee's functional disability. Weyerhaeuser Co. v. McGinnis , 37 Ark. App. 91, 824 S.W.2d 406 (1992). It acknowledged that Jackson had elected retirement, not only because of his physical limitations, but also for financial reasons. After recounting all these facts, the ALJ and the Commission denied Jackson's claim for permanent and total disability; but it found he had sustained a loss of earning capacity in the amount of 40 percent over and above his anatomical-impairment rating considering appropriate wage-loss factors.
In asking us to overturn the Commission's decision, ASMD is requesting us, in essence, to reweigh the evidence and credibility findings made by the Commission. That is not our role. It is the Commission's duty to weigh the evidence, and it found that Jackson was entitled to a wage-loss disability of 40 percent. On this record, we cannot say that the Commission failed to consider the appropriate evidence or that reasonable minds could not reach the result found by the Commission. Accordingly, we affirm on this point.
ASMD next argues that there was insufficient evidence to support the Commission's finding of a 37 percent impairment rating, because the workplace injury was not the major cause of his impairment. To support its contention, ASMD notes that Jackson had contracted polio as a child, which resulted in paralysis of his right leg and partial paralysis of his left leg. Although Dr. Gordon suggested that knee replacement surgery might be beneficial, Jackson declined all surgical options. After finding that Jackson had sustained a 37 percent impairment rating, Dr. Gordon opined that his workplace injury was only 50 percent caused by his compensable injury with the other 50 percent being associated with his preexisting condition. ASMD contends that for permanent disability benefits to be payable, the compensable injury must be the major cause of the permanent disability; that is, it must be more than 50 percent of the cause of the impairment. Because Dr. Gordon did not find his impairment to be more than 50 percent caused by his compensable injury, ASMD argues the award of benefits was not appropriate. Again, we will now consider ASMD's arguments in connection with the law of workers'-compensation benefits.
We have previously held and defined "permanent impairment" as "any permanent functional or anatomical loss remaining after the healing period has ended." Main v. Metals , 2010 Ark. App. 585, at 9, 377 S.W.3d 506, 511. Under the statute, any determination of the existence or extent of physical impairment must be supported by objective and measurable findings. Ark. Code Ann. § 11-9-704(c)(1)(B) (Repl. 2012). A claimant will not receive an award for permanent benefits unless the injury was the major cause of the disability or impairment. Ark. Code Ann. § 11-9-102(4)(F)(ii)(a) . "Major cause" means more than 50 percent of the cause, which the claimant must establish by a preponderance of the evidence. Ark. Code Ann. § 11-9-102(14)(A) ; see also Walgreen Co. v. Goode , 2012 Ark. App. 196, 395 S.W.3d 398. If a compensable injury combines with a preexisting disease or condition to cause or prolong disability or a need for treatment, a claimant will not receive an award for permanent benefits unless the injury was the major cause of the permanent disability or need for treatment. Ark. Code Ann. § 11-9-102(4)(F)(ii)(b) . However, an employer takes the employee as he finds him, and employment circumstances that aggravate preexisting conditions are compensable. Leach v. Cooper Tire & Rubber Co. , 2011 Ark. App. 571, 2011 WL 4477865. The major-cause requirement is satisfied when a compensable injury aggravates an asymptomatic preexisting condition such that the condition becomes symptomatic and requires treatment. Firestone Bldg. Prods. v. Hopson , 2013 Ark. App. 618, at 8, 430 S.W.3d 162, 167 ; Wright v. St. Vincent Doctors Hosp. Indem. Ins. Co. of N. Am. , 2012 Ark. App. 153, 390 S.W.3d 779.
In essence, ASMD argues that the only evidence the Commission should have considered in determining the impairment rating was Dr. Gordon's testimony. This is incorrect. The Commission is "not limited, and never has been limited, to medical evidence only in arriving at its decision as to the amount or extent of permanent partial disability suffered by an injured employee as a result of injury." Hickman v. Kellogg, Brown & Root , 372 Ark. 501, 511, 277 S.W.3d 591, 599 (2008) (quoting Wilson & Co. v. Christman , 244 Ark. 132, 424 S.W.2d 863 (1968) ). It is the duty of the Commission to translate the evidence on all issues before it into findings of fact. Id. ; Gencorp Polymer Prods. v. Landers , 36 Ark. App. 190, 820 S.W.2d 475 (1991). Here, the Commission not only had Dr. Gordon's opinion with regard to apportionment, it also had Jackson's testimony that he had remained quite physically active prior to the accident, including skiing and playing sports. Jackson also testified that, prior to his accident, he was able to move around with only the aid of a right-leg brace and a crutch, but after the accident he was practically confined to a wheelchair or scooter and had significant difficulties moving around his house and to and from his car. Additionally, there was no evidence that Jackson had complained of any knee problems at or near the time of the accident. Given these facts, we cannot say that the Commission's decision with regard to the disability rating was without substantial evidence.
Affirmed.
Virden and Klappenbach, JJ., agree.
This condition had been present since Jackson was approximately two years old.
The MRI also revealed significant rotary scoliosis.
Other issues presented to the ALJ included additional temporary total-disability benefits; an impairment rating for a sleep disorder; a greater impairment rating than the doctors opined; additional medical benefits-including a motorized wheelchair, wheelchair accessible van, and portable wheelchair lift; appropriate weekly compensation benefits; and underpayment of indemnity benefits. These issues are not relevant for purposes of this appeal. | [
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RITA W. GRUBER, Chief Judge
Appellant Shela Lybyer appeals from a decision of the Arkansas Workers' Compensation Commission (Commission) denying her temporary total disability (TTD) benefits. Appellees, the Springdale School District and the Arkansas School Boards Association, cross-appeal from that part of the decision ordering them to provide appellant conservative treatment with a physician specializing in weight loss. We affirm.
Appellant was working as a custodian at Har-Ber High School in Springdale when she sustained a compensable injury to her low back on June 22, 2015, while helping to move wrestling mats in the school gym. Her supervisor was notified, and he transported her to MedExpress. She was released to return to work on "very light duty" with initial restrictions that included lifting nothing that weighed more than ten pounds. Appellant returned to work; her light-duty job typically consisted of washing windows. On a visit the following week, appellant was referred to physical therapy. Medical records indicate that appellant saw various medical professionals at MedExpress and eventually saw a neurosurgeon, Dr. Charles Nalley, on September 28, 2015, who became her treating physician. He treated her conservatively, with steroid injections to her spine and continued physical therapy, but the treatments did not significantly improve her condition. Dr. Nalley recommended back surgery but refused to perform the surgery because of the risks associated with appellant's obesity and advised her to lose ninety pounds. The medical records also indicate that appellant was treated by Dr. Garland Thorn, Jr., during the time following her injury; she saw Dr. Thorn for weight issues and hypertension.
In late 2015 while still working within her restrictions, appellant was "called in" by appellees to attend a meeting because they claimed that she left early without clocking out and took long breaks. Then on December 22, 2015, appellant attended a meeting with district supervisors at which she was accused of attempting to cover surveillance cameras in a hallway where she worked. She admitted having attempted to cover one camera with tape. Appellant signed a resignation letter on December 22, 2015.
After her employment with appellees ended, appellant sought TTD benefits, which appellees denied. The prehearing order indicated that the issues to be tried included appellant's entitlement to medical benefits, specifically weight-loss-reduction surgery, and entitlement to TTD benefits from December 22, 2015, to a date yet to be determined. The hearing before the administrative law judge (ALJ) was held on October 10, 2017. The medical records were introduced into evidence, and appellant was the only witness. The ALJ entered an order denying appellant's request for TTD benefits because he determined that she made a choice to resign, which did not provide her benefits under the Workers' Compensation Act. The ALJ ordered appellees to provide "conservative treatment for the [appellant] with a physician specializing in weight loss and to pay for reasonable and necessary costs associated with that treatment, including making available physical activity such as gym or pool membership if that type of treatment is recommended by the [appellant's] chosen physician specializing in weight loss." Both sides appealed to the full Commission. In a unanimous decision, the Commission affirmed the decision of the ALJ and adopted the decision as its own. Both sides timely appealed the Commission's decision.
In reviewing decisions from the Commission, we view the evidence and all reasonable inferences in the light most favorable to the Commission's decision and affirm if it is supported by substantial evidence. Skinner v. Tango Transp., Inc. , 2016 Ark. App. 304, at 8, 495 S.W.3d 637, 643. Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether this court might have reached a different result from the Commission. Id. Additionally, questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Id. When there are contradictions in the evidence, it is within the Commission's province to reconcile conflicting evidence and determine the facts. Id. Finally, this court will reverse the Commission's decision only if it is convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Id. Questions of law are reviewed de novo. Id.
I. Direct Appeal
On direct appeal, appellant raises two points: (1) whether the Commission erred as a matter of law in holding that appellant's choice of a voluntary resignation over a termination with a negative recommendation to future employers disqualified her from receiving TTD benefits during the remainder of her healing period and (2) whether the Commission erred in finding that appellant voluntarily resigned her employment with appellees. We will address the second point first.
At the hearing before the ALJ, appellant testified that she had been written up for leaving early, taking long breaks, and not clocking out. She denied taking long breaks but explained that she had been sitting in the teacher's lounge because her back was hurting. She also stated that she left campus "like everyone else does. We went to the gas station. We wasn't gone for more than ten minutes and we came back with a glass of tea. Everybody does it." Appellant also admitted trying to cover a surveillance camera with tape. She testified on direct examination that she loved her job but was forced to sign the resignation, explaining that she would have continued to work there and did not want to quit. On cross-examination, she acknowledged that she resigned so that she would not get a bad evaluation. A copy of the resignation form, which she signed on December 22, 2015, was introduced into evidence. The ALJ noted that appellant did not provide the reason for leaving on her form, which was optional.
The ALJ stated that if appellant had been terminated for cause, he "believed" she would have been entitled to TTD benefits; however, the ALJ found that she was not terminated for cause and had instead resigned her position with the district. The ALJ wrote:
The claimant believed that she was forced to resign under pressure due to the threat of a "bad evaluation." Thus, in exchange for foregoing a "bad evaluation," the claimant resigned instead of facing firing or termination. That is a choice the claimant made. It might have been a poor and ill-informed choice, but her choice nonetheless.
The Commission found that appellant chose to resign, noting that she could have refused to do so. Moreover, the resignation form she signed contained a section entitled "My reason for leaving is: (optional)," with lines to provide an explanation; she did not provide any explanation. Appellant was the only witness to testify regarding the circumstances of her leaving. This issue turns on credibility, which is a matter for the Commission. The Commission's finding that appellant chose to resign is supported by substantial evidence.
Appellant's remaining argument is that the Commission erred as a matter of law in holding that her choice of a voluntary resignation, in lieu of termination, disqualified her from receiving TTD benefits during the remainder of her healing period.
Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Davenport v. Wal-Mart Stores, Inc. , 2018 Ark. App. 494, at 11, 558 S.W.3d 436, 442. Arkansas Code Annotated section 11-9-526 (Repl. 2012) provides, "If any injured employee refuses employment suitable to his or her capacity offered to or procured for him or her, he or she shall not be entitled to any compensation during the continuance of the refusal, unless in the opinion of the Workers' Compensation Commission, the refusal is justifiable." A termination of employment based on misconduct is not a refusal to return to work under Ark. Code Ann. § 11-9-526, such that an employee is disqualified from benefits. See Superior Indus. v. Thomaston , 72 Ark. App. 7, 32 S.W.3d 52 (2000), and Tyson Poultry, Inc. v. Narvaiz , 2012 Ark. 118, 388 S.W.3d 16.
In the present case, the Commission found that appellant chose to resign when appellees were providing her work within her restrictions, which does not entitle her to TTD benefits under the Workers' Compensation Act. By holding that appellant was not entitled to TTD benefits, the Commission determined as a matter of law that a voluntary resignation is a refusal of employment, which does not entitle her to TTD benefits under the Act. We agree and affirm the Commission's denial of TTD benefits under these facts.
II. Cross-Appeal
Appellees contend that the Commission's decision to award appellant additional medical benefits in the form of a conservative weight-loss program is not supported by substantial evidence and is erroneous as a matter of law.
Under Ark. Code Ann. § 11-9-508(a), "[t]he employer shall promptly provide for an injured employee such medical ... services ... as may be reasonably necessary in connection with the injury received by the employee." The employee must prove by a preponderance of the evidence that medical treatment is reasonable and necessary. Shiloh Nursing & Rehab, LLC v. Lawson , 2014 Ark. App. 433, at 3, 439 S.W.3d 696, 698. What constitutes reasonable and necessary medical treatment is a question of fact for the Commission. Id.
In the present case, appellant sought medical benefits, specifically weight-loss-reduction surgery. Although medical benefits for weight-loss surgery were not awarded, in awarding benefits in the form of a conservative weight-loss treatment the ALJ explained:
I have no doubt that the surgical intervention is reasonable and necessary treatment for the claimant's compensable injury. Clearly, medical opinion and medical evidence are supportive of surgical intervention. However, that surgery cannot occur until the claimant has achieved a loss of weight of about 100 pounds. The claimant has demonstrated a pre-injury ability to lose a significant amount of weight. Her efforts were foiled by her compensable injury and financial issues. I find that conservative weight loss treatment administered by a physician specializing in the field of weight loss to be reasonable and necessary medical treatment for the claimant's compensable low-back injury, as it is impossible for her to receive the reasonable and necessary surgical intervention to her low back without significant weight loss.
Appellees first argue that substantial evidence does not support the conclusion that appellant's weight gain was caused or exacerbated by the compensable injury. They cite Oliver v. Guardsmark, Inc. , 68 Ark. App. 24, 28, 3 S.W.3d 336, 339 (1999), in support of their argument that obesity is not a preexisting condition covered by workers' compensation. Appellees' reliance on Oliver is misplaced. There, the employee sought additional TTD benefits, evaluation by a specialist in regard to gastric-bypass surgery, and a determination as to whether the 1989 back injury aggravated his preexisting propensity for obesity. The employee had gastric-bypass surgery prior to his compensable injury and had lost 125 pounds. After his compensable injury, the employee regained the weight and contended that he needed another gastric-bypass surgery to help him lose the weight to have the back surgery he claimed he needed. The employee argued that the Commission erred as a matter of law in determining that his back injury did not aggravate a preexisting condition, which was a "propensity to obesity." Id. , 3 S.W.3d at 339. In affirming the Commission's denial of benefits, this court noted that there was "no authority for [the employee's] position that a tendency toward obesity can be characterized as a preexisting condition." Id. at 27, 3 S.W.3d at 339. This court went on to state that Ark. Code Ann. § 11-9-102(b) provides that if any compensable injury combines with a preexisting condition to cause or prolong disability or a need for treatment, permanent benefits shall be payable only if the compensable injury is the major cause of the permanent disability or need for treatment. We stated that "it is not at all clear that appellant's compensable injury is the major cause of his present disability." Id. , 3 S.W.3d at 339. In Oliver , the appellant's treating physician attributed his weight gain more to "continued caloric intake at a level not necessary for a sedentary lifestyle." Id. at 28, 3 S.W.3d at 339. The treating physician attributed the employee's inability to work to his obesity and stated that the back problems were complicated by obesity. In affirming the Commission's denial of benefits, we held that these statements of appellant's doctor provided a substantial basis for the denial of relief.
In the present case, the evidence is undisputed that appellant's treating physician, Dr. Nalley, thought the recommended back surgery would improve her condition. However, he would not perform surgery until appellant lost approximately ninety pounds due to the risks caused by her weight. Dr. D. Luke Knox performed an independent medical examination on April 5, 2016. He agreed with Dr. Nalley that appellant's issues were still related to the work injury, that surgery was necessary, and that appellant needed to lose about one hundred pounds in order to safely perform the surgery.
Appellees also argue that "there is no substantial evidence to support the conclusion that appellant can reach the weight requirement of her treating physician in order to qualify as a surgical candidate." Here, the Commission credited appellant's testimony:
In the testimony at the hearing, the claimant acknowledged that she has weighed as much as 420 pounds and that she has struggled with weight issues throughout her adult life. The claimant has tried varied and numerous weight loss programs, unfortunately becoming bulimic. Prior to her compensable injury, the claimant has treated with Dr. Thorn for her weight issues. Under Dr. Thorn's conservative treatment over a period of 18 months the claimant was able to lose around 100 pounds from the first of 2014 until mid 2015.... The claimant testified that her inability to work and pay for treatment with Dr. Thorne after her compensable injury was the cause of her weight change from 298 on the day that she sustained the compensable injury to her current weight as of the date of the hearing of 370 pounds.
In addition to this testimony, the medical record of Dr. Garland Thorn, Jr., from July 29, 2015, indicated that appellant had lost sixty pounds over a period of seven months. The Commission found that surgical intervention was reasonable and necessary for appellant's compensable back injury, that she had previously demonstrated the ability to lose a significant amount of weight, and that her efforts were foiled by her compensable injury and financial issues. Based on these findings, the Commission awarded conservative weight-loss treatment. While appellees question her ability to lose the weight, it was within the province of the Commission to determine appellant's credibility. The Commission's decision to award a conservative weight-loss program is supported by substantial evidence. Skinner , 2016 Ark. App. 304, at 8, 495 S.W.3d at 643.
Affirmed on direct appeal and on cross-appeal.
Hixson and Brown, JJ., agree.
Arkansas law permits the Commission to adopt the ALJ's opinion. Gunter v. Bill's Super Foods, Inc. , 2018 Ark. App. 134, at 4, 544 S.W.3d 571, 573. When the Commission adopts the ALJ's opinion, it makes the ALJ's findings and conclusions its findings and conclusions, and for the purpose of appellate review, we consider both the ALJ's opinion and the Commission's majority opinion. Id. | [
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BART F. VIRDEN, Judge
Kevin Phillips appeals the Sebastian County Circuit Court's decision adjudicating his son, IP (born 02/20/09), dependent-neglected based on physical abuse and parental unfitness. Phillips presents several arguments on appeal. First, Phillips challenges the sufficiency of the evidence to support the circuit court's finding that he caused IP's bruises. Second, alternatively, Phillips contends that the Arkansas Department of Human Services ("the Department") did not present evidence that the corporal punishment administered by him was not subject to the parent-guardian exception and that the circuit court failed to address this issue. Third, Phillips argues that the circuit court improperly excluded a previous Department administrative opinion overturning a true finding against Phillips of substance misuse and sexual abuse. Fourth, Phillips asserts that the circuit court erroneously denied his motion to modify, vacate, and reopen the record. We affirm.
I. Factual History
On August 29, 2017, the Department filed a petition for emergency custody and dependency-neglect regarding IP. The attached affidavit set forth the following relevant facts to support the petition. On August 23, 2017, the Department received a hotline call describing a "huge bruise on the back of [IP's] leg" that was "bigger than a grapefruit and almost looks like a square area. The bruise is brown, red, and yellow." The affidavit set forth that when IP was asked about the bruise, he responded that if he gets in trouble, his father spanks him on his buttocks with a brown leather belt or a foot-long rectangular wooden paddle with holes in it, and he stated that his father sometimes hit him on the head with an open hand. IP stated that these spankings occur about twice a week "or something like that" and that he always has bruises after he is spanked.
The affidavit sets forth that Phillips told family service worker Bobbie Gorman that he spanks IP with a belt or a paddle when IP gets in trouble at school and when he is defiant. Phillips stated to Gorman that he had spanked IP two days before the hotline report and that before that last spanking, it had been two weeks since he had spanked IP. Gorman showed Phillips photographs of bruises on IP's buttocks and legs, and he responded that he "would have to admit that then" as to the bruising on IP's bottom. Regarding the bruises on IP's legs, Phillips stated that "I'm not saying I did or didn't do it." Phillips agreed to a protection plan that entailed refraining from corporal punishment, and he agreed to attend anger-management classes and parenting-without-violence classes.
The affidavit also contained statements from "school personnel" who told Gorman that IP had stated that his father spanked him with a paddle that Monday. She told Gorman that she was afraid of what IP would face at home when he got in trouble at school and that on August 24 and 25, IP had refused to talk "about anything that happened at home and was more defiant than he had been before, refusing to do work or talk to the counselors."
The affidavit also recounted the events of a team decision meeting ("TDM") held August 25. At the meeting, Phillips told family service workers that he would continue to corporally punish IP if he saw fit. Phillips again admitted that he had likely caused the bruises on IP's buttock, but that he believed IP got the other bruises during a recent float trip. During a break, Phillips made a phone call in which he was heard telling the person on the phone that the meeting was not going his way, and that if she did not hear from him in an hour, to "go ahead and do what she needs to do." Phillips became upset and stated that he did not agree to refrain from corporal punishment and that he did not need anger-management classes or any other Department services. Phillips was informed that the Department was taking an emergency hold on IP. Phillips refused to bring IP to the office or cooperate until law enforcement became involved. IP was located with a grandparent who brought IP into the Department office. The affidavit listed six prior instances of referrals citing abuse or neglect by Phillips. Five reports were unsubstantiated. One referral for sexual abuse and substance misuse had been found true, but the finding was later overturned on appeal.
The circuit court entered an ex parte order for emergency custody on August 29, 2018. The circuit court found that it was in IP's best interest to remove him from his father's custody and that removal was necessary to protect IP's health, safety, and welfare. The circuit court noted that along with the large bruise on his thigh, IP had bruises of different ages on his buttocks. In the order, the circuit court noted that the Department took custody of IP and transported him to Hamilton House for a forensic interview. When IP was asked about his bruises, IP curled into a fetal position, cried, and seemed very afraid. IP told the interviewer that his father had never hit him and that he had lied before. IP stated that he had gotten the bruises from falling out of a kayak.
On October 6, 2017, the circuit court entered a probable-cause order finding that emergency conditions existed and that it was necessary to remove IP from Phillips's custody.
On October 18, 2017, Phillips filed a motion to "shorten the time to respond." Phillips requested a copy of "the investigative file including all evidence, whether turned over to Central Registry or not as pertaining to the true finding on Kevin Phillips." Phillips also requested a transcript of the forensic interview of IP at Hamilton House. The circuit court refused to rule on the motion because Philips had not served IP's noncustodial mother, Fawn Henson, who was a party to the proceeding and representing herself.
On November 3, 2017, the circuit court held an adjudication hearing. Phillips testified that he was not sure how the bruises on IP's buttocks had occurred, that IP had been under the supervision of the Boys and Girls Club, his mother, and himself, and that he had not been aware of the bruising until he was shown pictures of IP's backside. Phillips testified that just a few days before the hotline report, IP had wrecked his bike and had fallen on rocks and a canoe paddle during a float trip. Phillips also testified that once or twice a month he spanked IP with a belt or a paddle and that he could have caused some, but not all, of the bruises. Phillips denied telling family service worker Gorman that he used corporal punishment on IP on a regular basis, and Phillips denied that he previously stated that he had probably caused the bruising. Phillips testified that he had agreed to stop using corporal punishment when the case began. Phillips denied being "aggressive" toward Department personnel during the TDM meeting on August 25, though he admitted that he probably raised his voice and that after the meeting in the lobby, it would be fair to say that "things blew up." Phillips stated that he felt he had been bullied and falsely accused during the TDM meeting. Phillips explained that he tried to tell Department workers that he, his brother, and IP had gone on a fourteen-mile canoe trip and had capsized three times but "they wouldn't let me tell them."
Phillips testified that he had been investigated by the Department six times and that each report had been unsubstantiated. Phillips explained that one report of drug misuse and sexual abuse had been found true, but it was later overturned. Phillips attempted to have the order overturning the true finding admitted into evidence, and the Department objected that the order was not certified. The circuit court sustained the objection but noted that the opinion overturning the true finding of sexual abuse and substance misuse had already been discussed at the probable cause hearing. Phillips was allowed to proffer the contents of the order including that the administrative law judge ("ALJ") found that IP's mother was not a credible witness and that she had shown motive for fabricating the report of substance misuse and sexual abuse. In the order, the ALJ found that IP's answers seemed very coached and that he was likely lying about the abuse.
Henson, who was pro se at the hearing, cross-examined Phillips about when they had first seen IP's bruises. Phillips testified that he could not remember if Henson and he had met on August 23 after he had spoken with Gorman. Phillips could not recall whether he had actually seen the bruises or if they were successful in getting IP to pull down his pants so that they could see them. Phillips's attorney objected, asserting that Henson was being argumentative, and the court responded that "[y]our client seems to have a selective memory on what he wants to remember some specifics with DHS and can't remember a specific conversation with the mother of the child."
Officer Mark Mergen, a sergeant with the Greenwood Police Department, testified that on Thursday, August 24, Phillips told him that he had spanked IP on Monday and that he believed he had caused the bruises on IP's buttocks. Mergen explained that he did not clarify with Phillips whether he meant the immediately preceding Monday or two Mondays before, but he believed Phillips meant the immediately preceding Monday. Mergen testified that Phillips stated he did not believe he was "overzealous in his punishment."
Chrissy Thompson, a counselor who had worked with IP from time to time when IP was in kindergarten until he was removed from Phillips's custody, testified at the hearing. Thompson stated that Phillips used corporal punishment to address IP's behavioral issues. Thompson explained that up until the present school year, IP's school had used corporal punishment when disciplining IP. Thompson opined that corporal punishment was not appropriate for IP because
it was used so much that it had no effect whatsoever. Because every week, I would see him and he would tell me, you know, when he would get in trouble or get in-school suspension, he would go home and I'd see him the next day and I'd say, you know, "what happened?" He'd tell me he got spanked.
Thompson testified that IP lied to her sometimes but that she could tell when he was not telling the truth.
Family service worker Gorman testified that she responded to the hotline report regarding IP. Gorman explained that on August 23, she went to IP's school where she observed the bruising and interviewed IP. That day after school, Gorman met Phillips at the Boys' and Girls' Club and questioned him about the bruises. Gorman testified that Phillips told her that he spanked IP with a belt, a paddle, and his hand and that he had spanked IP with a belt on "eclipse day," which was Monday, August 21. Phillips told her, "I would have to admit to that, then," when she showed him the pictures of the bruises on IP's bottom.
Henson also testified that she saw the bruises on IP's buttocks and upper thigh on Wednesday, August 23. Henson described how Phillips administers corporal punishment by raising his "whole entire body and swings ... at him with his whole body weight." Henson stated that it is normal for Phillips to spank IP twice a week.
Jerel Phillips, Kevin Phillips's brother, testified that he, IP, and Phillips went on a float trip from August 18 to August 20 and that IP fell several times during the trip. He testified that IP "slid on his butt" over rocks and down waterfalls. Jerel explained that the canoe capsized several times and that there were rocks just below the surface of the water.
On November 15, 2017, Phillips filed a motion to modify, vacate, and reopen the record in which he asserted that a miscarriage of justice had occurred. In his motion, Phillips argued that his original motion was deemed denied and that he never received the requested transcript of IP's recorded interview or "the investigative report of Bobbie Gorman which she claimed supported the true finding of abuse against Defendant." Phillips argued that the transcript was "exculpatory and contrary to the Department's conclusions[.]" Phillips admitted that the Department had supplied the video recording of the forensic interview, but that production of the transcript is "essential to make an informed and just ruling in the case at bar."
The Department responded that the investigator did not rely on a transcript of the interview with IP but had observed the actual interview. The Department also pointed out that a DVD recording of this interview had been provided to Phillips. The Department moved to strike portions of Phillips's motion because IP's statements in the interview at Hamilton House were not entered into evidence because the circuit court had previously deemed them inadmissible hearsay. The circuit court denied Phillips's motion.
On December 19, 2017, the circuit court entered an order finding IP dependent-neglected due to Phillips's physical abuse and parental unfitness. The court found that abuse is any nonaccidental physical injury, in the instant case spanking, and that "the definition of abuse specifically excludes physical discipline of a child when reasonable, moderate and inflicted by a parent. Ark. Code Ann § 9-27-303(C)(i)." The circuit court found that during the investigation of the report of severe bruising on IP's upper thigh, several bruises of differing ages were discovered on IP's buttocks.
The circuit court noted that the family had a history with the Department but that none of the reports had been found true, except for one instance, and that finding was later overturned. The circuit court found this latest allegation true based on Phillips's acknowledgment that he spanked IP and that he could have caused some of the bruises. The circuit court also relied on Henson's description of Phillips's corporal punishment. The court acknowledged that Henson had been found by the Logan County Circuit Court to be an unfit parent, that she had previously interfered with the relationship between IP and his father, that she was $6,630.50 in arrears on her child-support obligation, and that she had failed to appear for a drug test. The circuit court also relied on IP's former school counselor's testimony that IP told her that his father frequently used corporal punishment. The court found that Phillips was "evasive and he lacked credibility" and that Phillips's "memory was poor when recalling facts which did not support his position but would improve significantly when recalling facts that supported his position."
On January 19, 2018, Phillips filed another motion to modify, vacate, and reopen the case, and he attached a transcript of IP's interview. Phillips contended in the motion that because the adjudication order was not filed until December 10, 2017, his November motion had not been ripe for consideration. Phillips argued that the forensic interviewer traumatized IP by trying to trick IP into saying that his father abused him. Phillips reasserted that the two excluded items of evidence-the interview transcript and the ALJ order overturning the true finding of sexual abuse and substance misuse-are essential to the case and are exculpatory. Without this evidence, Phillips argued, the circuit court cannot make an informed decision; thus, the circuit court should reopen the case and admit the evidence to complete the record. The circuit court denied the motion. Phillips timely filed his notice of appeal.
II. Standard of Review
This court reviews findings in dependency-neglect proceedings de novo, but we will not reverse the circuit court's findings unless they are clearly erroneous. Lamontagne v. Ark. Dep't of Human Servs. , 2010 Ark. 190, 366 S.W.3d 351. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, based on the entire evidence, is left with a definite and firm conviction that a mistake has been committed. Id. Adjudication hearings are held to determine whether the allegations in a petition are substantiated by the proof. Ark. Code Ann. § 9-27-327(a)(1) (Repl. 2015). Dependency-neglect allegations must be proved by a preponderance of the evidence. Worrell v. Ark. Dep't of Human Servs. , 2010 Ark. App. 671, 378 S.W.3d 258. The focus of an adjudication hearing is on the child, not the parent. Id. This court defers to the circuit court's evaluation of the credibility of witnesses. Id.
III. Points on Appeal
A. Sufficiency of the Evidence
Phillips challenges the sufficiency of the evidence to support the circuit court's finding that IP is dependent-neglected based on physical abuse and parental unfitness. In essence, he urges this court to give more weight to his and Jerel's testimony that IP's bruises were caused by events during a two-day float trip. We find no error in the circuit court's decision.
"Dependent-neglected juvenile" means any juvenile who is at substantial risk of serious harm as a result of acts or omissions to the juvenile, a sibling, or another juvenile, including but not limited to, abuse, neglect, or parental unfitness. Ark. Code Ann. § 9-27-303(18)(A)(ii), (v) & (vi) (Supp. 2017). Section 9-27-303(3)(A) defines "abuse" in part as "any nonaccidental physical injury." Ark. Code Ann. § 9-27-303(3)(A)(v).
The circuit court found that Phillips caused the bruises to IP and that the injuries constituted abuse. To support this conclusion, the court found
[w]hen the juvenile was brought into care, he had numerous bruises on his buttocks, his lower back, and his upper leg.[ ] The father caused the bruising to the juvenile's buttocks and lower back and the bruising was a non-accidental injury. The finding that the father caused the bruising was established by a. The father's admission, under oath, that he spanked the juvenile in the past and could have caused the bruising at issue by spanking the juvenile; b. The police officer's testimony that the father admitted to him that he could have caused at least some of the bruising at issue by spanking the juvenile; c. The mother's testimony that she witnessed the father spanking the juvenile on several occasions in the past. Including details about the way the juvenile was positioned during the spankings and the actions of the father in swinging his arm all the way back and hitting the child hard, with a belt; d. The counselor's testimony about the disclosures by the juvenile about being spanked by his father.
Phillips and his brother testified that IP sustained the bruises while falling out of a canoe and when he slid down the rocky riverbed on his bottom; however, the circuit court was not required to find this version of events persuasive. See Worrell , supra. Moreover, the circuit court found that Phillips lacked credibility and that Phillips's "memory was poor when recalling facts which did not support his position but would improve significantly when recalling facts that supported his position." The circuit court's finding that Phillips caused IP's bruises is supported by sufficient evidence; namely, that Phillips admitted he had likely caused the bruises by spanking IP. We are not left with a firm conviction that the circuit court erred in finding that Phillips caused IP's bruises. See Worrell , supra.
B. The Parent-Guardian Exception
We now turn to Phillips's alternative argument that if this court holds that the circuit court did not err in finding that IP's bruises are attributable to him, his conduct is included in the parent-guardian exception to "abuse" set forth in the Child Maltreatment Act. See Ark. Code Ann. § 12-18-103(3)(C)(i) (Supp. 2017). Phillips did not raise this issue below, and we are barred from addressing the Child Maltreatment Act's definition of abuse and its application to the instant case. A party cannot change the argument on appeal and is bound by the scope of the arguments made to the circuit court. McKinney v. Ark. Dep't of Human Servs. , 2017 Ark. App. 475, at 21, 527 S.W.3d 778, 791. We do not address arguments raised for the first time on appeal. Id.
Insofar as Phillips contends that the Department failed to present sufficient evidence that the corporal punishment he administered to IP was not within the definition of abuse, we affirm. Phillips also argues that the circuit court impermissibly found that any corporal punishment constitutes abuse, and on that issue we also disagree and affirm.
In the order, the circuit court referred to Ark. Code Ann. § 9-27-303(3)(C)(i), which sets forth that "abuse" shall not include physical discipline of a child when it is reasonable and moderate and is inflicted by a parent or guardian for purposes of restraining or correcting the child. The circuit court also cited Ark. Code Ann. § 9-27-303(3)(C)(iii), which dictates that reasonable and moderate physical discipline inflicted by a parent or guardian shall not include any act that is likely to cause and that does cause injury more serious than transient pain or minor temporary marks.
Clearly the circuit court specifically considered the definitions of "abuse" and reasonable "physical discipline" as defined by Ark. Code Ann. § 9-27-303(3)(C)(i) and (iii) in the order, and sufficient evidence supports the circuit court's finding that Phillips's corporal punishment of IP constituted abuse. To support its determination, the circuit court found that IP's bruises were not transient, temporary, or accidental, and there was testimony and evidence that the bruise that initiated the call to the hotline was described as "huge" and "bigger than a grapefruit and almost looks like a square area. The bruise is brown, red, and yellow." In her investigation of that bruise, other bruises of varying ages were found. There was testimony from several sources that IP was frequently corporally punished. The circuit court heard unrefuted testimony that IP weighed approximately fifty pounds and that Phillips weighed around 200 pounds. The circuit court acknowledged Henson's history of interfering with Phillips's relationship with IP but found her testimony credible regarding the force with which Phillips spanked IP. The circuit court also found that Phillips's memory was selective and that he was evasive and lacked credibility. Even without Henson's testimony, the Department presented sufficient evidence that IP's bruises were not transient or temporary and that IP was frequently subjected to physical abuse.
Based on our holding above, we reject Phillips's argument that the circuit court found that spanking is per se abuse. Here, as we discuss above, the circuit court did not find that the spanking alone constitutes abuse. The circuit court considered the age, size, and condition of the child and the location of the injury and the frequency or recurrence of injuries when it determined whether the physical discipline was reasonable or moderate. See Ark. Code Ann. § 9-27-303(3)(C)(iv). We affirm.
C. Exclusion of the Department Administrative Opinion
On appeal, Phillips asserts that
[t]he ALJ opinion was excluded and not considered by the trial court because it was not "certified." Churchwell argued that it need not be certified because it was affixed with the Arkansas seal and signed by a state official (administrative law judge) who drafted the document originally, and his sealed and executed cover letter properly identified the document. This combination, Churchwell tried to explain, was self-authenticating according to the Rules of evidence.
We will not reverse a circuit court's ruling on admissibility of evidence absent a manifest abuse of discretion. Wilson v. Ark. Dep't of Human Servs. , 2015 Ark. App. 666, at 12, 476 S.W.3d 816, 824. Without any showing of prejudice, any judicial error as to the admissibility of evidence is harmless error and cannot be grounds for disturbing a circuit court's order. Id. ; Ark. R. Civ. P. 61.
The exchange before the circuit court regarding the administrative order is as follows:
COUNSEL ( PHILLIPS ): Okay. I'm going to ask that this be marked as two, well, it's front and back, two pages front and back. It's the administrative decision and opinion from the administrative law judge, Brian Nichols, regarding those allegations.
COURT : Mrs. Hughes?
COUNSEL ( DEPARTMENT ): Your Honor, I'm objecting to this as hearsay. It's not certified.
COURT : Ms. Henson?
HENSON : I agree with the objection because IP's testimony was taken out of that hearing because they said that it was hearsay and they said that it was inadmissible.
COURT : Mrs. Hamilton?
ATTORNEY AD LITEM : Your Honor, I don't recall if I've seen that before. And to be honest, I don't know the process of certifying an administrative hearing.
COUNSEL ( PHILLIPS ): It's an order by an administrative law judge, your honor.
COURT : Is it a certified copy?
COUNSEL ( PHILLIPS ): I pulled it off their site. It's not certified, your Honor.
COURT : I'm going to sustain the objection.
COUNSEL ( PHILLIPS ): Your Honor, it's got the seal of the great state of Arkansas on it. Arkansas Department of Human Services-
COURT : Sir, Mr. Churchwell, if you want to proffer it, you can mark it as a proffered exhibit, but I'm not going to look at it.
Arkansas Rule of Evidence 902 regarding self-authenticating documents sets forth that a "public document under seal" does not require authentication to be admissible and that a "a document bearing the seal ... of any state" is such a document. Ark. R. Evid. 902(1). The administrative order here does not bear the state seal as Phillips contends. The letterhead of the letter attached to the order contains a copy of the state seal, and we do not have before us a ruling from the circuit court on whether the presence of a copy of the state seal contained in stationery letterhead constitutes a self-authenticating document when it is combined with the administrative order because Phillips, as he admits, did not make this argument below.
It appears from our review of the record that Phillips argued that the order bears the state seal; thus, it is self-authenticating. The circuit court ruled that the document is not "certified" and deemed it inadmissible. Limiting ourselves to the arguments made and ruled on below, we hold that the administrative order does not bear the state seal and is not self-authenticating; therefore, the circuit court did not err in refusing to admit the order into evidence as a self-authenticating document.
D. Motion to Modify, Vacate, and Reopen the Record
Phillips refers to the circuit court's denial of his motion to modify, vacate, and reopen the record in one sentence in the conclusion paragraph of his brief, as follows:
The ALJ opinion letter as well as the interrogation (DVD and transcript) should have been considered by the court as the best evidence, and based upon the Department's decision to release Sanders, and therefore not introduce the exculpatory evidence contained therein, the court considered only evidence that tended to support the adjudication.
We do not address whether the circuit court erred by denying Phillips's motion because he has abandoned the issue on appeal. Phillips asserts that the circuit court should have granted his motion to modify, vacate, and reopen the record in a point heading but he offers no argument in that regard. See, e.g., Hale v. State , 343 Ark. 62, 31 S.W.3d 850 (2000) (declaring an argument abandoned on appeal when appellant mentioned it in the points on appeal but made no argument regarding it).
Affirmed.
Harrison and Klappenbach, JJ., agree.
Our review of the record does not show that there was any testimony or evidence that IP suffered bruises to his lower back. The circuit court's seeming factual error does not invalidate the court's finding regarding physical abuse. | [
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LARRY D. VAUGHT, Judge
Philip Frederic appeals the sentencing order entered by the Faulkner County Circuit Court convicting him of conspiracy to commit rape and sentencing him to thirty years' imprisonment. Frederic argues there is insufficient evidence to support his conviction. We affirm.
This case began on the evening of February 14, 2016, when Chad Meli of the Faulkner County Sheriff's Office, who is trained to investigate cybercrimes against children, used an undercover Kik account to answer an advertisement on Craigslist entitled "Seeking dads and daughters" that was posted on February 9, 2016. The ad read:
Seeking to talk with a dad who has a daughter interested in mature gentlemen. We could begin by sharing our interests and getting to know a little about each other and your daughter and what her interests are ... in men. Nothing too taboo to share, no judgements[sic], you can kik me at cfcardinal. I'm a father with a daughter also....
Officer Meli's online profile was that of a single forty-two-year-old father named "T.J." who had a thirteen-year-old daughter named "Kaci." Frederic responded to "T.J." by asking if "Kaci" was sexy and by saying that he (Frederic) had a "hot" fifteen-year-old daughter whom he used to "f* *k." Frederic sent a picture of himself and several pictures of a young girl (who was later identified as Frederic's fifteen-year-old daughter) to "T.J." Then "T.J." sent pictures of "Kaci" (an adult female) to Frederic. "T.J." told Frederic that "Kaci" played with him because he bought her "s* *t." The conversation between Frederic and "T.J." continued and contained sexually graphic language, including Frederic's repeating multiple times that he would like to "f* *k" "T.J.'s" "sweet little thirteen-year-old" daughter. "T.J." said that he was willing to make "Kaci" available for Frederic's sexual gratification. Frederic asked, "What would I have to buy her?"
The next day, Frederic and "T.J." chatted again, and during this conversation, Frederic made arrangements to meet "T.J." and "Kaci" around 4:30 p.m. at an Exxon station in Mayflower, Arkansas. Frederic gave "T.J." his phone number, said his name was "Phil" and that he drove a dark blue Chevrolet Ventura van. Frederic again asked "T.J." what he should buy "Kaci." "T.J." responded that she liked Michelob Ultra beer and glitter nail polish. "T.J." also said that pink and purple were "Kaci's" favorite colors.
Upon meeting Officer Meli at the Exxon station as planned, Frederic was arrested. In his van, officers found twelve Michelob Ultra beers, pink and purple glitter nail polish, and a hunting knife. Officer Meli testified that Frederic was arrested and charged with conspiracy to commit rape based on Officer Meli's online conversations with Frederic, along with the facts that Frederic showed up at the planned meeting location and brought with him the beer and nail polish.
Frederic also testified. He admitted that he was familiar with the Craigslist ad to which "T.J." had responded; that he had seen it; that the address on the ad was his; and that he had posted a similar ad on Craigslist on February 9, 2016, after chatting with someone else online named "Texas Stepdad"; but he denied posting the advertisement. He also admitted that he (1) engaged in the sexually explicit conversations with "T.J."; (2) sent pictures of himself and his daughter to "T.J."; (3) arranged a meeting with "T.J." and "Kaci," who he thought was thirteen years old; (4) showed up at the meeting location as planned; and (5) brought the gifts for "Kaci" that "T.J." had suggested. Frederic testified that he did all these things for research. He described in great length his academic interest in human sexuality and that he wanted to learn whether he could develop an online-research technique in this area. He stated that his plan was to introduce himself online as a member of whatever demographic he was studying-homosexual, pedophile, transgender, transsexual-and immerse himself into the dialogue of that demographic so that he could have "an honest conversation" about people's different sexual choices. He said that he had no intention of meeting with any of the people he conversed with and had not met with any of them until he arranged the meeting with "T.J." and "Kaci." He testified that his true intent in meeting with "T.J." was to have a conversation, get a pizza, and drink some beers. Nevertheless, during his testimony, Frederic conceded the wrongfulness of his conduct, stating, "It was an active indiscretion" and "I should not have been in that conversation."
The jury convicted Frederic of conspiracy to commit rape and sentenced him to thirty years in prison. This appeal followed. Frederic's sole point on appeal is that the circuit court erred in denying his timely motions for directed verdict challenging the sufficiency of the evidence.
We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Moore v. State , 372 Ark. 579, 580, 279 S.W.3d 69, 71 (2008). Our supreme court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id. , 279 S.W.3d at 71. We affirm a conviction if substantial evidence exists to support it. Id. , 279 S.W.3d at 71. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. at 580-81, 279 S.W.3d at 71. Circumstantial evidence may provide a basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Id. , 279 S.W.3d at 71. Whether the evidence excludes every other hypothesis is left to the jury to decide. Id. , 279 S.W.3d at 71-72. The credibility of witnesses is an issue for the jury and not the court. Id. , 279 S.W.3d at 72. The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. , 279 S.W.3d at 72.
A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. Ark. Code Ann. § 5-14-103(a)(3)(A) (Supp. 2017). "Deviate sexual activity" means any act of sexual gratification involving the penetration, however slight, of the labia majora or anus of a person by any body member or foreign instrument manipulated by another person. Ark. Code Ann. § 5-14-101(1)(B).
A conspiracy is an inchoate offense, and under Arkansas law it is a crime in and of itself. Savannah v. State , 7 Ark. App. 161, 163, 645 S.W.2d 694, 695 (1983). A person conspires to commit an offense if, with the purpose of promoting or facilitating the commission of any criminal offense (1) the person agrees with another person or other persons that one or more of the persons will engage in conduct that constitutes that offense or the person will aid in the planning or commission of that criminal offense, and (2) the person or another person with whom the person conspires does any overt act in pursuance of the conspiracy. Ark. Code Ann. § 5-3-401(1), (2) (Repl. 2013).
The State is required to prove that there was an agreement by the parties to commit a crime and that one of the conspirators did at least a minimal act in furtherance of that agreement.
Winkler v. State , 2012 Ark. App. 704, at 6, 425 S.W.3d 808, 811. It is settled doctrine that the crime of conspiracy is complete on the agreement to violate the law as implemented by one or more overt acts, however innocent such act standing alone may be, and it is not dependent on the success or failure of the planned scheme. Id. at 6-7, 425 S.W.3d at 811 (citing United States v. Joiner , 418 F.3d 863 (8th Cir. 2005) ). A conspiracy may be proved by circumstances and the inferences to be drawn from the course of conduct of the alleged conspirators. Id. at 6, 425 S.W.3d at 811.
We hold that substantial evidence supports Frederic's conviction for conspiracy to commit rape because there was evidence that Frederic made a plan with "T.J." to rape "Kaci," and Frederic took overt steps in furtherance of the plan. The text exchanges between Frederic and "T.J." reveal the plan. The sexually graphic language used by Frederic leaves no doubt that he wanted to have sex with "T.J.'s" thirteen-year-old daughter, and the text exchanges show that Frederic and "T.J." agreed on a plan to commit that crime. Also, the State's evidence of overt acts is substantial. Frederic traveled to Mayflower, showed up at the meeting place at the appointed time in the vehicle he said he would be driving, and had two gifts in his vehicle that "T.J." said "Kaci" would like and would encourage her to "play."
Frederic makes several arguments in favor of his position that the evidence is insufficient. One argument is that there is no direct proof that he posted the Craigslist advertisement; and for support, he cites his testimony denying that he posted the ad. It was up to the jury to determine whether it believed Frederic when he testified that he did not post the ad. The jury is not required to believe a defendant's self-serving testimony. Brown v. State , 374 Ark. 341, 344, 288 S.W.3d 226, 230 (2008).
Also, there is substantial evidence that Frederic posted the ad. He admitted during his postarrest interview that he posted the February 9, 2016 Craigslist ad "Seeking dads and daughters." At trial, he admitted that he was familiar with the ad and that the Kik address on the ad was his. Further, he admitted talking to "Texas Stepdad" on February 9, 2016, and that the transcript from that exchange revealed that Frederic was seeking to have sex with underage girls and that he questioned "Texas Stepdad" about how to find these girls. "Texas Stepdad" recommended that Frederic post an ad on Craigslist, and Frederic told "Texas Stepdad" that he had posted the ad. Finally, whether Frederic posted the ad is of no significance in this case. Assuming arguendo that Frederic did not post the ad, he admitted planning with "T.J." to rape thirteen-year-old "Kaci," and he made overt acts in furtherance of that plan, which constitutes substantial evidence to support his conviction for conspiracy to commit rape.
A second argument made by Frederic is that "he did not initiate any internet conversation with [Officer] Meli." This argument is another red herring. It is not relevant who initiated the internet conversations. What is relevant is the content of the conversations. It was Frederic who first brought up the topic of rape when he, referring to "Kaci," said (in extremely graphic sexual language) that he would like to have sex with the teen. It was Frederic who first brought up the idea of meeting with "T.J." and "Kaci." And it was Frederic who asked what gifts he should bring "Kaci." This is substantial evidence that Frederic was an active participant in making a plan to rape "Kaci."
Frederic's third argument is that the State's evidence was insufficient because the Craigslist ad "Seeking dads and daughters" did not specify an age of the daughters sought and because no pornography or condoms were found in his van. These arguments are also red herrings and have no merit. Frederic admitted having the conversation with "T.J." wherein "T.J." said that "Kaci" was thirteen. Also, the two gifts found in Frederic's vehicle at the prearranged meeting point constituted substantial evidence of an overt act. Two more items are not required.
Finally, Frederic argues at length that the evidence convicting him was insufficient based on his testimony that his sole purpose in chatting with "T.J." was research; that he used such explicit language because his research required it; and that when he went to the Exxon station, his intent was to share fantasies and eat pizza with "T.J." Again, the jury was not required to believe Frederic's research story, Brown , 374 Ark. at 344, 288 S.W.3d at 230 -a story he failed to mention during his postarrest interview.
For all these reasons, we hold that Frederic's conspiracy-to-commit-rape conviction is supported by substantial evidence and affirm.
Affirmed.
Glover and Hixson, JJ., agree.
A Kik account is an instant-messaging application.
Officer Meli testified that in this context, playing with someone is synonymous with having sexual contact with someone.
Officer Meli testified that he did not believe the knife was related to Frederic's meeting with "T.J." and "Kaci." | [
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ROBERT J. GLADWIN, Judge
Appellant Anthony Baumann appeals his September 29, 2017 conviction by a Benton County jury on a charge of second-degree sexual assault of E.S., for which he was sentenced to twenty years' incarceration in the Arkansas Department of Correction (ADC). Baumann argues that (1) the circuit court erred in denying his motion to exclude the testimony of his daughter, Tanya Bridges, regarding allegations of sexual assault that presumably occurred twenty-eight years prior to the trial pursuant to Arkansas Rule of Evidence 404(b) (2017); (2) the circuit court erred in refusing to exclude the same testimony pursuant to Arkansas Rule of Evidence 403 (2017); and (3) the State's questioning of Detective Brian Hanna regarding other sexual-assault accusations against Baumann warranted a mistrial. We affirm.
I. Facts
Baumann was charged with one count of rape and one count of sexual assault in the second degree against a minor, E.S. Prior to trial, the circuit court held a hearing on Baumann's pretrial motion to exclude Bridges's Rule 404(b) testimony. At the time of the hearing, Bridges was forty years old. She testified that she is Baumann's biological daughter and grew up with Baumann and that the sexual abuse started in "probably the fourth or fifth grade." Bridges testified that when she was in the sixth grade, Baumann came into her bedroom and touched her on the arm and shoulder. That type of event continued with his touches progressing until eventually he was touching her vagina. She explained that his visits to her room occurred at night while other people were in the house, but she had a bedroom to herself. As she got older, Baumann moved from touching her vagina to forcing Bridges to touch his penis and to forcing her to engage in oral and vaginal intercourse. She testified that once, after vaginal intercourse, Baumann told her how beautiful she was. The circuit court found Bridges credible and stated that she would be allowed to testify. The circuit court ruled that the testimony would be admissible under the pedophile exception pursuant to Ark. R. Evid. 404(b) and that it did not violate Ark. R. Evid. 403. Baumann renewed his objection to Bridges's testimony at trial, and the circuit court again denied his objection.
Baumann is the biological grandfather of V.B. V.B. and E.S. are half-sisters and share the same mother. E.S., who was thirteen years old at the time of the trial, testified that her mother, Erika Shirley, was previously in a relationship with Baumann's son, Adam. E.S. first started spending time around Baumann when she was nine or ten years old. During that time, she would occasionally stay the night with Baumann and his wife. She testified that Baumann would come into her room at night as she was getting ready for bed or after she was already in bed. E.S. explained that she would be in the bedroom by herself. Baumann would sit on her bed and tell her to take off her shorts and underwear or lift up her nightgown. He would touch her on her breasts and her vagina underneath her clothes. E.S. also testified that Baumann would lick her vagina. When he did this, her clothes would be around her ankles, and his hands would be on her knees, spreading her legs apart. E.S. stated that Baumann also made her touch his penis while in the living room when no one else was home. She testified that he told her not to tell anyone or both of them would get into trouble.
Bridges testified at trial that when she was thirteen or fourteen, Baumann would come into her room, caress her on the arm, and touch her vagina, which eventually led to digital penetration. Bridges also testified that Baumann had vaginal intercourse with her when she was fourteen or fifteen, that Baumann made her masturbate him, and that he made her perform oral sex on him. She explained that one time after intercourse, Baumann told her she was beautiful. Bridges testified that the abuse stopped when she was sixteen and she had her first boyfriend; Baumann solicited her one last time to engage in sexual activity with him and then she could do whatever she wanted to with her boyfriend.
At trial, the State directed Detective Hanna to read into evidence a portion of the Child Safety Center (CSC) interview of E.S., which included the allegation that Baumann had been accused of touching "his other granddaughters." The circuit court sustained Baumann's objection to this testimony but did not grant a mistrial sua sponte in the absence of a request from Baumann.
The circuit court granted Baumann's directed-verdict motion only on the rape count based on a lack of evidence of penetration of E.S. and denied Baumann's directed-verdict motion as to the remaining count of sexual assault in the second degree. The jury convicted Baumann of sexual assault in the second degree, and the circuit court sentenced him to a term of imprisonment of twenty years in the ADC and imposed a fine of $15,000 pursuant to a sentencing order filed on October 17, 2017. Baumann filed a timely notice of appeal, and this appeal followed.
II. Rule 404(b)
Challenges to an evidentiary ruling are reviewed under the abuse-of-discretion standard. Hortenberry v. State , 2017 Ark. 261, 526 S.W.3d 840. The abuse-of-discretion standard is a high threshold that does not simply require error in the circuit court's decision, but requires that the circuit court act improvidently, thoughtlessly, or without due consideration. Id. ; Holland v. State , 2015 Ark. 341, 471 S.W.3d 179. Additionally, an evidentiary decision will not be reversed absent a showing of prejudice. Hicks v. State , 2017 Ark. 262, 526 S.W.3d 831.
Pursuant to Rule 404(b), "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." Such evidence is permissible for other purposes, however, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." E.g. , Duvall v. State , 2018 Ark. App. 155, at 5, 544 S.W.3d 106, 110. "Under Ark. R. Evid. 404(b), evidence of other crimes will be admitted if it has independent relevance, and its relevance is not substantially outweighed by the danger of unfair prejudice." Jones v. State , 349 Ark. 331, 339, 78 S.W.3d 104, 110 (2002). Evidence is independently relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Cluck v. State , 365 Ark. 166, 226 S.W.3d 780 (2006).
Arkansas appellate courts recognize a "pedophile exception" to Rule 404(b)"that allows the State to introduce evidence of the defendant's similar acts with the same or other children when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship." Duvall , 2018 Ark. App. 155, at 6, 544 S.W.3d at 110. The rationale for the exception is that such evidence helps to prove the depraved sexual instinct of the accused. Jeffries v. State , 2014 Ark. 239, 434 S.W.3d 889. Further, it is admissible to show the familiarity of the parties, disposition, and antecedent conduct toward one another and to corroborate the testimony of the victim, see Fields v. State , 2012 Ark. 353, at 6, 2012 WL 4471112, and to show motive, intent, or plan. See Holland, supra. Also, " Rule 404(b) makes no distinction between substantiated and unsubstantiated conduct, or between charged and uncharged conduct. This court has explicitly held that our application of the pedophile exception does not require that the prior act be charged or substantiated." Holland , 2015 Ark. 341, at 8, 471 S.W.3d at 185.
While the State may introduce evidence of unsubstantiated prior allegations to show an accused's "proclivity to offend," there are three essential restrictions on the pedophile exception. First, courts "require that there be a sufficient degree of similarity between the evidence to be introduced and the sexual conduct of the defendant." Id. Physical similarities between the alleged victim and the 404(b) witness such as age and gender are relevant when there is not "identical" conduct toward each by the accused. See Stewart v. State , 2011 Ark. App. 658, at 7, 386 S.W.3d 583, 587. Second, it is necessary "that there be an 'intimate relationship' between the perpetrator and the victim." Holland , 2015 Ark. 341, at 7, 471 S.W.3d at 184. The relationship must be one "close in friendship or acquaintance, familiar, near, or confidential." Eubanks v. State , 2009 Ark. 170, at 4-5, 303 S.W.3d 450, 453. This standard is not strict; the act of babysitting has been found to satisfy the "intimate relationship" criterion. See Morrison v. State , 2011 Ark. App. 290, at 4, 2011 WL 1495994.
Third, evidence admitted pursuant to Rule 404(b) must not be too separated in time, making the evidence unduly remote. Holland , 2015 Ark. 341, at 8, 471 S.W.3d at 185. "[A] reasonableness standard is used to determine whether a crime remains relevant rather than a specific time limit." Id. at 9, 471 S.W.3d at 185.
A. Similarity of Allegations
The pedophile exception has been used in cases in which there was substantial similarity between the prior allegations and the newly charged conduct. See Woods v. State , 2013 Ark. App. 739, at 8, 431 S.W.3d 343, 348 (holding that a prior conviction for molesting the defendant's minor stepdaughter when she was isolated, and threatening her to not report the abuse, was admissible when he was later charged with the same conduct with another stepdaughter); see also Eubanks , 2009 Ark. 170, at 5-6, 303 S.W.3d at 453 (concluding evidence is allowed when the defendant was accused of digitally penetrating two girls who were under his care and similar in age at the time the abuse occurred).
In Hortenberry , supra , substantial similarity was found when the victim and two witnesses, all of whom were within two years of age of each other, testified that the defendant performed oral sex on them when they stayed at his house. Each testified that she had been given alcohol or a "white pill" to help her sleep, that she slept on the defendant's living room floor, and that he bought various gifts for her. Hortenberry. , 2017 Ark. 261, at 11, 526 S.W.3d at 847. Substantial similarity also was found when two twelve-to fourteen-year-old boys testified that the defendant reached out to them as a friend of the family, took them places, bought them gifts, showed them pornography, and forced masturbation and oral sex on them at his home. Kelley v. State , 2009 Ark. 389, 327 S.W.3d 373. The Arkansas Supreme Court has relied on discernible patterns of how the abuse develops or occurs, holding there was substantial similarity when the defendant spoke to his victims in an attempt to rationalize his behavior in some way. See Flanery v. State , 362 Ark. 311, 208 S.W.3d 187 (2005).
Conversely, the pedophile exception was not applicable when the defendant was on trial for engaging in anal sex with a four- to eight-year-old female and the prior act being introduced was his alleged genital touching and oral sex with his twelve- to fourteen-year-old half brother that occurred seventeen years prior to the offense. Efird v. State , 102 Ark. App. 110, 282 S.W.3d 282 (2008).
Baumann argues that this case is more like Efird than any case in which substantial similarity was found. Baumann asserts that the substantive nature of the allegations of Bridges and E.S. are fundamentally different with Bridges's allegations being far more serious and violative than E.S.'s allegations. Baumann was on trial for class B felony sexual assault, and the jury was presented with Bridges's testimony about the alleged incestuous rape of his teenage daughter. He argues that Bridges's "404(b) evidence" was drastically dissimilar and far more severe than the actual conduct for which Baumann was on trial with no similar pattern of abuse.
Baumann also argues that there is no "class of persons." E.S. testified that she had been ten years old at the time of the alleged acts, and it is undisputed that she is not related to Baumann. Conversely, Bridges's testimony was inconsistent as to her age during the alleged abuse-ranging from between the ages of ten and sixteen years of age-and she is Baumann's biological daughter. Baumann argues that there is a difference between a prepubescent ten-year-old girl and a thirteen- to sixteen-year-old girl who is in the middle of puberty or is already postpubescent. He also claims the biological relationship between Bridges and Baumann is important, because it cannot be disputed that there is a difference between a sexual offense against a person in general versus against a blood relative.
We disagree and hold that the evidence of Baumann's sexual abuse of Bridges is sufficiently similar to his sexual abuse of E.S. Our supreme court has consistently considered similarities in age and gender of the victims to be demonstrative of a depraved sexual instinct, such that the pedophile exception is applicable. E.g. , Kelley , supra (victims were twelve- to fourteen-year-old males at the time of the abuse). The court has also not required that the sexual acts be identical to be permissible under the pedophile exception. E.g. , Fields , 2012 Ark. 353, at 8.
Specifically, in Lamb v. State , 372 Ark. 277, 275 S.W.3d 144 (2008), our supreme court held that the pedophile exception applied when Lamb occupied a caregiver role for both the victim and witness and that the sexual act-oral sex-was identical. And in Flanery , supra , the court held that evidence that Flanery inappropriately touched his daughter was properly admitted under the pedophile exception in his conviction of ten counts of rape of another girl because it showed a proclivity toward molesting young girls.
The Arkansas Supreme Court has also found that testimony fit into the pedophile exception when it described a particular method for finding opportunity to make sexual contact with a victim. See, e.g. , Jefferies , 2014 Ark. 239, at 7-8, 434 S.W.3d at 895 (three of four victims testified to having been awoken by Jefferies as he performed oral sex on them). The pedophile exception also was met in Holland , supra , when the sexual abuse differed from victim to victim, but Holland's method of befriending young boys, combined with the fact that the abuses occurred in his home or a place under his control and involved crude remarks about the boys' anatomy, demonstrated acts of a similar nature. Id. , 2015 Ark. 341, at 9-10, 471 S.W.3d at 185-86 ; see also Hernandez v. State , 331 Ark. 301, 308, 962 S.W.2d 756, 760 (1998) (testimony that, although dissimilar to the charged act, showed accused's attraction to young girls' physical characteristics and proclivity toward sexual abuse of young girls).
We find no merit in Baumann's argument that the alleged abuse was "drastically dissimilar." Both Bridges and E.S. testified that (1) when the abuse occurred, Baumann was in a supervisory role; (2) they were the only ones staying in their bedrooms when the abuse occurred; (3) Baumann would enter their bedrooms at night, and the abuse would occur near or on their beds; (4) Baumann initiated the abuse by rubbing them on the vagina inside their clothes; (5) as time progressed, Baumann would have them touch his penis; (6) eventually, oral sex occurred.
The similarities in the testimony demonstrate that Baumann preyed on the girls in their bedrooms at night. The pattern of his abuse was similar in that he began by caressing them and then rubbing their vaginas before progressing to oral sex as his victims got older. To the extent that Baumann argues the abuses were dissimilar because of an age difference, he is wrong. Baumann abused E.S. when she was ten years old. Although Bridges initially said she was fourteen or fifteen when the abuse happened, she consistently stated that the abuse started in the fourth or fifth grade. That would mean the abuse started when Bridges was between ten and twelve years old, a fact that she acknowledged during cross-examination. Thus, when the abuse began, both E.S. and Bridges were prepubescent girls and similar in age.
Even viewing the testimony in the light most favorable to Baumann, the age difference still falls within that which the court has permitted for the pedophile exception to apply. See Fields , 2012 Ark. 353, at 7 (permitting a six-year difference as the victim was seven when her abuse occurred and one of the witnesses was thirteen when his abuse occurred).
B. Remoteness of Allegations
The second requirement for 404(b) evidence is that it must not be too separated in time, to make the evidence unduly remote. Holland , 2015 Ark. 341, 471 S.W.3d at 185, 2017 Ark. 261, at 8. "[A] reasonableness standard is used to determine whether a crime remains relevant rather than a specific time limit." Id. , at 9, 471 S.W.3d at 185. In its application of Rule 404(b), our supreme court has suggested that this requirement, regardless of the time span involved, is automatically met if the first requirement of similarity is satisfied; i.e., if the acts are substantially similar, then the act can never be remote. See Lamb, supra.
Baumann notes that here, Bridges was forty-one years old at trial, and she testified that she was raped by Baumann from the ages of approximately thirteen to sixteen years old. Accordingly, the allegations were between twenty-five and twenty-eight years old at the time of this trial, which he maintains makes them unduly remote and unconnected to the charged conduct against E.S. Baumann argues that Bridges's allegations were so separated in time that even she could not fully or accurately recall the details of the alleged abuse.
Acknowledging that the evidence must not be too separated in time, to make it unduly remote, see, e.g. , Brown v. State , 2012 Ark. 399, at 7, 424 S.W.3d 288, 293, the State points out that under the reasonableness standard, the circuit court has sound discretion over the matter and will be overturned only when it is clear that the evidence has no connection with any issue in the present case. E.g. , Jeffries , 2014 Ark. 239, at 7, 434 S.W.3d at 895.
The remoteness-in-time element is but one of the factors considered in determining similarities between the evidence to be introduced and the defendant's sexual conduct. Morrison v. State , 2011 Ark. App. 290, at 4-5. Sufficiently similar evidence may be admitted "even when a significant time gap exists." Allen v. State , 374 Ark. 309, 317, 287 S.W.3d 579, 585 (2008). In certain circumstances, appellate courts have allowed evidence from many years past to be introduced for these purposes. Id. (holding that prior-rape evidence that was more than forty-years old was relevant and had a connection to the case at bar); see also Butler v. State , 2010 Ark. 259, at 3, 2010 WL 2132266 (holding that evidence that was a minimum of twenty-one-years old was admissible); see also Brown v. State , 2010 Ark. 420, 378 S.W.3d 66(allowing evidence of alleged sexual assault that occurred thirty-four years earlier); Rohrbach v. State , 374 Ark. 271, 277-78, 287 S.W.3d 590, 595-96 (2008) (upholding admission of testimony under pedophile exception of prior acts that occurred between nineteen and twenty-four years earlier); Tull v. State , 82 Ark. App. 159, 163, 119 S.W.3d 523, 525 (2003) (holding thirty-year-old evidence admissible).
Here, Baumann's abuse against Bridges began approximately thirty years prior to the abuse of E.S. This is within the time frame permitted by appellate courts. Because the abuse suffered by Bridges was similar to that of E.S., the circuit court was correct in finding that it was relevant and had a strong connection with the issue in the present case. We hold that the circuit court did not abuse its discretion by permitting Bridges's testimony pursuant to the pedophile exception.
III. Rule 403
Even if evidence of prior allegations of child abuse meets the criteria for the pedophile exception to Rule 404(b), Baumann notes that the evidence is still subject to potential exclusion under Rule 403 if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Holland, supra. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Ark. R. Evid. 403. He argues that Bridges's testimony had essentially no probative value and severely prejudiced him through inflammation and confusion of the jury.
As discussed above, the limited purpose for which Bridges's testimony was admitted was under Rule 404(b) to show the proclivity of Baumann to engage in "specific acts" with a certain class of persons. Baumann argues that the only possible construction of Bridges's testimony as being probative is to say that the jury had to decide whether E.S. was telling the truth about her allegations, so the fact that Baumann is accused of raping his own teenage daughter almost thirty years ago supports that belief. He claims that such an argument flies in the face of the clear language and spirit of Rule 404(b) that a person's prior bad acts may not be used solely to prove that he acted in conformity therewith for the currently charged crime. Accordingly, he urges that Bridges's testimony had little to no probative value given the actual issue submitted to the jury.
Further, Baumann contends that Bridges's testimony unfairly inflamed the jury because of the gravity of her allegations that he incestuously raped his own biological daughter. Baumann asserts that as soon as the jury heard Bridges's accusations, he was no longer on trial for anything he might have done to E.S.; rather, he was, in effect, on trial for Bridges's thirty-year-old, uncharged, uncorroborated allegations.
We decline to review Baumann's Rule 403 argument on appeal because he failed to obtain a clear ruling from the circuit court as to whether the probative value of the witness's testimony was substantially outweighed by the danger of unfair prejudice to him. Appellants must obtain a ruling on whether Rule 404(b) evidence should have been excluded under Rule 403 to preserve the issue for appeal. E.g. , Duvall , 2018 Ark. App. 155, at 9-10, 544 S.W.3d at 112. Baumann initially made a Rule 403 objection in conjunction with his Rule 404(b) objection at the pretrial hearing on the issue. The circuit court ruled that the evidence was admissible for Rule 404(b), but it specifically reserved a ruling on whether the evidence was admissible for Rule 403. At trial, Baumann made no further mention of a Rule 403 objection. Prior to Bridges's testimony, Baumann renewed his Rule 404(b) objection and sought and received a limiting instruction on Rule 404(b). The circuit court's ruling indicated that he renewed only his Rule 404(b) objection. Neither Baumann's abstract nor his brief indicate that the circuit court ruled on his Rule 403 objection. Additionally, because the circuit court never made a Rule 403 finding, the required balancing analysis never occurred. E.g. , Cluck , 365 Ark. at 175, 226 S.W.3d at 787 (the circuit court must conduct a probative versus prejudicial weighing with respect to evidence if defense considers the weighing to be important or legally required to preserve the Rule 403 issues for appeal).
IV. Mistrial Analysis
Our standard of review regarding mistrials was reiterated in Williams v. State , 2012 Ark. App. 310, at 7-8, 420 S.W.3d 487, 491 (internal citations omitted):
Declaring a mistrial is a drastic remedy and proper only where the error is beyond repair and cannot be corrected by any curative relief. The circuit court should resort to mistrial only where the error complained of is so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected. Because the circuit court is in a better position to determine the effect of a remark on the jury, it has wide discretion in granting or denying a motion for a mistrial, and its discretion will not be disturbed except where there is an abuse of discretion or manifest prejudice to the movant. In reviewing a mistrial motion, we look at all developing circumstances that surround an incident to determine whether a manifest abuse of discretion occurred.
Baumann argues that improper, bad-faith questioning of Detective Hanna by the State resulted in prejudice to him, thus depriving him of the fundamental right to a fair trial. Despite acknowledging that his counsel did not ask for a mistrial, Baumann claims that this court may still grant him relief. Generally, Arkansas does not follow the "plain error" rule, and "an argument for reversal will not be considered in the absence of an appropriate objection in the circuit court." Wicks v. State , 270 Ark. 781, 785-87, 606 S.W.2d 366, 369-70 (1980) (approving four limited exceptions to the general rule requiring a contemporaneous objection to preserve an issue for review: (1) a circuit court's failure to bring a matter essential to consideration of the death penalty to the jury's attention; (2) when error is made by the circuit court when counsel has no knowledge of the error; (3) when the circuit court has a duty to intervene and correct flagrant and highly prejudicial errors; and (4) under Ark. R. Evid. 103(d) providing that appellate courts are not denied review of errors affecting substantial rights even if not brought to the attention of the circuit court).
At the close of cross-examination, Baumann's counsel asked Detective Hanna if he was aware that E.S.'s mother, Shirley, had previously lied under oath making false sexual-assault allegations. Detective Hanna responded that he was not aware of that fact. On redirect examination, the State asked Hanna if any information regarding Shirley and her allegations against her own father would have made the case against Baumann any stronger to justify his not following up on those leads during his investigation. The State then changed the line of questioning to the CSC interview of E.S. Showing Detective Hanna the transcript of the interview of E.S., which he did not perform himself, the State instructed Detective Hanna to read a portion of the transcript that was a question being asked of E.S: "Okay. So, the interviewer says, 'Did your mom tell you about Tanya touching his real daughter and his other granddaughters before or after you told your mom and dad about-and then-.' " At that point, Baumann's counsel requested a bench conference. Before counsel made an objection, the circuit court remarked that the questioning was improper and was not supposed to be introduced, and even asked why Baumann's counsel did not object sooner before he had read the transcript out loud. The State stated, "I won't even go there," but Baumann claims that it was too late and that the line of questioning was flagrant misconduct that was highly prejudicial.
Baumann urges that the third and fourth Wicks exceptions apply. The third Wicks exception is a narrow one that has thus far been applied only in cases in which the fundamental right to a jury trial is at issue. Rackley v. State , 371 Ark. 438, 440, 267 S.W.3d 578, 580 (2007). He urges that when a prosecutor makes an improper remark that is "flagrant" and "highly prejudicial in character," the circuit court has an independent duty to intervene and correct such error by either an admonition to the jury or declaring a mistrial. Wicks , 270 Ark. at 786, 606 S.W.2d at 369-70.
We disagree. Although Baumann did make a contemporaneous objection, he failed to move for a mistrial after his objection. No Wicks exception applies; specifically, the third exception has been applied very rarely to matters such as the right to a twelve-person jury; violations of Ark. Code Ann. § 16-89-125(e) (Repl. 2006), see Grinning v. City of Pine Bluff , 322 Ark. 45, 50, 907 S.W.2d 690, 692 (1995), and statements by a prosecutor in voir dire that have the effect of shifting the burden of proof, see Anderson v. State , 353 Ark. 384, 401, 108 S.W.3d 592, 603 ; cf. Chunestudy v. State , 2012 Ark. 222, at 10, 408 S.W.3d 55, 62 (holding arguments on evidence by the prosecution in closing do not fall under the third Wicks exception). The third Wicks exception has not been applied to consider possible prosecutorial errors in relation to cross-examination, E.g. , Vaughn v. State , 338 Ark. 220, 992 S.W.2d 785 (1999). The fourth exception is even more narrow and only applies to a ruling that admits or excludes evidence. Wicks , 270 Ark. at 787, 606 S.W.2d at 370. Our supreme court has long held that is it not enough to merely object-one must also move for a mistrial. Sanders v. State , 278 Ark. 420, 646 S.W.2d 14 (1983). Accordingly, we hold that the circuit court did not err in failing to grant a mistrial sua sponte in the absence of a request by Baumann.
Affirmed.
Virden and Vaught, JJ., Agree.
There was some inconsistency regarding Bridges's age. At the pretrial hearing, Bridges initially testified that she was around fourteen or fifteen years old when the abuse first occurred. On cross-examination during trial, she clarified that in the fifth grade, she would have been ten or eleven years old.
Bridges is Baumann's daughter and had been living in his home at the time of the alleged sexual abuse. E.S. had been staying the night with Baumann, under the care of his wife and him, and the alleged abuse occurred in his home. Baumann conceded that an "intimate relationship" exists for the purpose of the application of the pedophile exception, and he makes no argument on appeal with respect to this requirement.
Bridges testified that Baumann briefly stopped raping her when she began menstruating but resumed once he had a vasectomy. | [
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RHONDA K. WOOD, Associate Justice
Appellant Tyrell Benson appeals the denial of his petition for writ of habeas corpus. As a juvenile, Benson committed multiple offenses resulting in multiple convictions and sentences. He alleges that one of his sentences exceeds his life expectancy without the opportunity for parole, resulting in a de facto life sentence in violation of Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). We conclude that Benson is parole eligible; therefore, we do not speculate as to whether his sentence would violate Graham if he were not parole eligible. However, because Benson's judgment-and-commitment orders incorrectly state that he is ineligible for parole pursuant to Arkansas Code Annotated section 16-93-609, we reverse the denial of Benson's habeas petition, issue the writ, and remand to the sentencing court to correct the orders.
I. Background
When he was seventeen years old, Benson committed a series of criminal offenses. In January 2003, a Pulaski County Circuit Court jury convicted him of three counts of aggravated robbery, which he committed in March 2002. The trial court sentenced him to three consecutive ten-year sentences (60CR-02-2345). In February 2003, a Pulaski County Circuit Court jury convicted him of two counts of a terroristic act, which he committed in March 2002. The circuit court sentenced him to two, thirty-year sentences to run concurrently with one another but consecutively to the thirty years he received on the aggravated-robbery charges (60CR-02-1695). Finally, in March 2003, Benson entered a negotiated plea of guilty to rape and aggravated robbery, which he committed in May 2002. He was sentenced to sixty years on each count to run concurrently with each other and with his previous sentences (60CR-02-1978). The February and March 2003 sentencing-and-commitment orders state that Benson is "not eligible for parole" pursuant to section 16-93-609, an enhancement statute.
In November 2016, Benson filed a pro se petition for writ of habeas corpus in the Jefferson County Circuit Court arguing that his sentences are cruel and unusual and unconstitutional under the Eighth and Fourteenth Amendments. Specifically, he alleged that his sixty-year sentence comprises a de facto life sentence, which the United States Supreme Court prohibits under Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). In Graham , the Supreme Court held that the imposition of a life sentence without the benefit of parole eligibility on juveniles who commit nonhomicide offenses is unconstitutional. The circuit court denied Benson's petition, finding that his sentence does not violate the Eighth and Fourteenth Amendments under Graham . Benson appealed.
II. Standard of Review
A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a trial court lacks jurisdiction over the cause. Philyaw v. Kelley , 2015 Ark. 465, 477 S.W.3d 503. Under our statute, a petitioner who does not allege his or her actual innocence must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that the petitioner is being illegally detained. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016). Unless the petitioner can show that the trial court lacked jurisdiction or that the judgment is facially invalid, there is no basis for a finding that a writ of habeas corpus should issue. Williams v. Kelley , 2017 Ark. 200, at 3, 521 S.W.3d 104, 106.
III. Analysis
On appeal, Benson argues that his sixty-year sentence without parole is unconstitutional because it exceeds his life expectancy. Benson's argument is premised on the fact that he must serve sixty-years' imprisonment and is ineligible for release until he is seventy-seven years old. He claims his life expectancy is seventy-three years. Benson's sentencing-and-commitment orders in case numbers 60CR-02-1695 and 60CR-02-1978 provide that Benson is ineligible for parole in accordance with Act 1805 of 2001, codified as Arkansas Code Annotated section 16-93-609. The State alleges that despite the notations on his sentencing orders, section 16-93-609 does not apply to Benson and that Benson is not serving a de facto life sentence because he is eligible for parole at age fifty-five pursuant to section 5-4-501(d)(1) and (d)(1)(C). We agree with the State's argument that section 16-93-609 is inapplicable to Benson. However, because Benson's sentencing-and-commitment orders provide that section 16-93-609 applies to Benson, we conclude that the orders are invalid on their face, and we reverse the denial of the petition for writ of habeas corpus.
Section 16-93-609 is a sentencing enhancement statute. It provides:
(a) Any person who commits murder in the first degree, § 5-10-102, rape, § 5-14-103, or aggravated robbery, § 5-12-103, subsequent to March 24, 1983, and who has previously been found guilty of or pleaded guilty or nolo contendere to murder in the first degree, § 5-10-102, rape, § 5-14-103, or aggravated robbery, § 5-12-103, shall not be eligible for release on parole by the Parole Board.
(b)(1) Any person who commits a violent felony offense or any felony sex offense subsequent to August 13, 2001, and who has previously been found guilty of or pleaded guilty or nolo contendere to any violent felony offense or any felony sex offense shall not be eligible for release on parole by the board.
Ark. Code Ann. § 16-93-609(a), (b)(1) (Repl. 2016) (emphasis added). When we read this statute in accordance with its plain language, we find that Benson is not subject to this statute.
First, when Benson committed the terroristic acts in March 2002, which were the bases for his convictions in case number 60CR-02-1695, he had not yet been found guilty of the aggravated robberies in case number 60CR-02-2345. Similarly, Benson committed rape and aggravated robbery in May 2002. However, he was not found guilty of the aggravated robberies in case number 60CR-02-2345 until January 2003 or of the terroristic acts in case number 60CR-02-1695 until February 2003. Consequently, Benson had not previously been found guilty of any violent felony or aggravated robbery in May 2002 when he committed rape and aggravated robbery in case number 60CR-02-1978, and he had not previously been found guilty of any violent felony or aggravated robbery in February 2002 when he committed the terroristic acts.
Therefore, we conclude that the sentencing-and-commitment orders in case number 60CR-02-1695 and in case number 60CR-02-1978 are facially invalid because they specifically state that Benson is ineligible for parole pursuant to section 16-93-609 ; even the State concedes that enhancement under section 16-93-609 is inapplicable to those sentences. We note that once the judgment and commitment orders are corrected so that they are no longer facially invalid, the judiciary has no further role in deciding how the executive branch calculates Benson's parole. Wheeler v. State , 2015 Ark. 233, 463 S.W.3d 678. While this court does not have jurisdiction over how parole eligibility is determined, we do have jurisdiction to correct a facially illegal sentence, including the improper application of an enhancement statute. Id. ; Williams v. Kelley , 2017 Ark. 200, 521 S.W.3d 104 ; see also Darrough v. Kelley , 2017 Ark. 314, 530 S.W.3d 332.
We reverse the circuit court's denial of Benson's petition for writ of habeas corpus and issue the writ of habeas corpus. We remand to the Pulaski County Circuit Court with instructions for the court to correct the judgment-and-commitment orders in case numbers 60CR-02-1695 and 60CR-02-1978 to reflect that Benson's sentences are not enhanced pursuant to Arkansas Code Annotated section 16-93-609.
Reversed; writ issued; remanded with instructions to the Pulaski County Circuit Court in case number 60CR-02-1695 and 60CR-02-1978.
Hart, J., concurs.
I concur. While it is true that Benson's confinement order is facially invalid for (at least) the reasons stated in the majority opinion, and while it is true that this error should be corrected, its correction will not entirely resolve the issue being raised before this court: whether Benson's sentence (whatever it is) violates the requirements of Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).
It would be imprudent to address whether Benson's sentence violates Graham at this juncture. While the parties disagree as to how this court should interpret Graham as a general matter, the parties also dispute the actual terms of the sentence Benson is currently serving. This issue was first raised in the State's brief, after Benson filed his opening brief, and indeed, it is apparent from the face of Benson's judgment-and-commitment order that his sentence was not imposed in accord with the laws of Arkansas. Benson's judgment-and-commitment orders incorrectly state that he is ineligible for parole pursuant to " Ark. Code Ann. § 16-93-609," as set forth in the majority opinion. Instead, the State asserts that Benson is subject to Ark. Code Ann. § 16-93-1302(f) (Repl. 2011), which would mean that Benson "may be considered eligible for parole or for community correction transfer upon reaching regular parole or transfer eligibility, but only after reaching a minimum age of fifty-five (55) years." Pursuant to this rationale, the State asserts that Benson is eligible for parole at age fifty-five (55), as opposed to age seventy-seven (77), as Benson's petition asserts.
The erroneous application of Ark. Code Ann. § 16-93-609 (Repl. 2016) alone renders Benson's confinement order facially invalid and therefore warrants issuance of the writ. Furthermore, the Graham question cannot be properly answered until Benson is provided a proper sentence in accord with any applicable laws that were in effect at the time of the underlying offenses. Accordingly, I concur with the majority's decision to remand this case to the sentencing court.
The Arkansas Court of Appeals affirmed. Benson v. State , No. CACR-03-477, 2004 WL 628860 (Ark. App. March 31, 2004) (unpublished).
The court of appeals affirmed, holding that Benson's sentences were subject to an enhancement pursuant to the "three strikes" provision of Arkansas Code Annotated section 5-4-501(d)(1) (Repl. 1997) (amended 2011) because he had been previously convicted of the three counts of aggravated robbery in his first case. Benson v. State , 86 Ark. App. 154, 164 S.W.3d 495 (2004).
Ark. Code Ann. sections 5-4-501(d)(1) and (d)(1)(C) provide for a sentencing range of thirty to sixty years for a Class B felony, with no parole eligibility, except as provided by Arkansas Code Annotated section 16-93-1302. Section 16-93-1302 provides that offenders sentenced under section 5-4-501(c) or (d)"may be considered eligible for parole ... upon reaching regular parole or transfer eligibility, but only after reaching a minimum age of fifty-five (55) years." Ark. Code Ann. section 16-93-1302(d) (Repl. 2006) (repealed 2011). | [
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RITA W. GRUBER, Chief Judge
Ryan Hudson appeals from the Saline County Circuit Court's order awarding attorney's fees to his ex-wife, Christa Hudson. The fees were awarded for services rendered in a dispute regarding the proper amount of child support due by Mr. Hudson under the parties' divorce decree. On appeal, he argues that the circuit court had no appropriate legal or factual basis to grant Ms. Hudson's petition and, therefore, that it erred in awarding attorney's fees. We reject his arguments and affirm the circuit court's award.
The parties were divorced by decree entered on July 20, 2016. The court awarded them joint custody of their two minor children with primary physical custody to Ms. Hudson. Mr. Hudson had been employed before the divorce, and at all relevant times after the divorce, as a full-time detective with the Little Rock Police Department (the LRPD). To earn additional income, he had also worked overtime at the LRPD, for which he received overtime pay or "comp time," and "off duty" jobs.
The divorce decree provided the following regarding child support:
13. Child Support: Husband's income for child support purposes is calculated based on his net, regular wages with the LRPD plus imputed income for off-duty work based on the parties' 2015 federal and state tax returns. Accordingly, Husband shall pay child support in the sum of $923.00 monthly (or $426.50 biweekly; $499.50 semi-monthly; $230.75 weekly) based on a net income of $4,350.00 per month. Beginning in January 2017, Husband shall pay child support on his regular LRPD wages only plus 21% of the net amount of any off-duty income. The additional percentage shall be calculated on a quarterly basis. Husband shall provide to Wife his paystubs or other proof of additional income on a quarterly basis along with his quarterly child support calculation.
In December 2016, Mr. Hudson sent Ms. Hudson's attorney a paycheck stub along with a proposed order to reduce his child support. Ms. Hudson then served interrogatories on Mr. Hudson requesting pay information-including paychecks, overtime, farm income, and other documentation. When he failed to timely respond to her request, Ms. Hudson filed a motion for modification of child support. On April 19, 2017, Ms. Hudson filed a motion to dismiss Mr. Hudson's request that child support be reduced, contending that he had failed to provide necessary information, including answers to interrogatories and tax information. The court held a hearing on April 24, 2017, during which Mr. Hudson admitted that he had not filed a tax return and that, while he had provided his W-2s, expense reports, income, and other documentation to his CPA, he had not given this information to Ms. Hudson in spite of her request for it. Because no evidence was presented and the court had no information that Mr. Hudson had made money in addition to that evidenced by his paycheck stub, the court denied Ms. Hudson's motion to dismiss.
On June 23, 2017, Ms. Hudson filed a motion for clarification of the following provision in the divorce decree: "Beginning in January, 2017, Husband shall pay child support on his regular LRPD wages only plus 21% of the net amount of any off-duty income." The court held a hearing on June 28, 2017, to "figure out what amount of child support, if any, is owed or has been overpaid; and then, obviously calculating what the amount of child support shall be moving forward." There was ample testimony from the LRPD administrative-services manager and from Mr. Hudson regarding comp time and overtime payments and how it is treated in an employee's paycheck. At one point during the hearing, the court said that it was confused and was "really thinking about appointing a special master."
In a letter opinion dated June 29, 2017, the court clarified its divorce decree regarding child support from 2017 forward and determined Mr. Hudson's income for child-support purposes. In setting forth its proposed findings, the court said it was "struck by how disingenuous" Mr. Hudson's counsel's argument was regarding Mr. Hudson's fluctuating paychecks. The court noted that the reduction in Mr. Hudson's paycheck from 2016 to 2017 was not due to any job change or change in duties and specifically found credible the LRPD administrator's testimony that opting between "comp time" and "comp pay" was at Mr. Hudson's discretion. The court said it was clear that Mr. Hudson had opted to take time instead of money "to the tune of approximately $7500 in value over a six-month period. The fact that this case has been pending during the time Mr. Hudson made these choices is not lost on the court." (Emphasis in original.) The court went on to note that it was "irritated by a terrible argument" but would not "ignore" its true belief about the most "equitable way forward." The court concluded the letter by stating that Ms. Hudson's counsel should submit a formal request for attorney's fees. The court entered an order setting forth its findings on August 11, 2017.
In her petition requesting attorney's fees, Ms. Hudson contended that Mr. Hudson's failure timely to produce the requested information, and his production of some of the documentation at the hearings, significantly prolonged both hearings. She argued that this type of post-decree hearing should have taken no more than two to three hours to prepare and try but alleged that she had spent over twenty hours due to Mr. Hudson's failure to answer interrogatories timely, provide documents until the hearings, or file tax returns.
The court entered an order granting Ms. Hudson's petition for fees, finding that its original decree had set a different definition for Mr. Hudson's income beginning in January 2017 and that Mr. Hudson had set forth a calculated amount of income that was "deficient and based upon legal theories so flawed as to draw a rebuke from the court-after months and months of unnecessary litigation." The court recognized that Ms. Hudson was required to pay an attorney to refute these theories through pleadings and two hearings in order to receive the proper amount of child support under the original court order. The court found that the case progressed as an action by Ms. Hudson to enforce her rights to the proper amount of child support under the decree, which fell under Ark. Code Ann. § 9-12-309 (Repl. 2015), permitting an award of attorney's fees in child-support-enforcement actions. The court awarded $6,369 in attorney's fees, as requested in the petition. The court specifically found the requested amount was justified and proper based on the amount of preparation and court time and the experience level of Ms. Hudson's attorney.
On appeal, Mr. Hudson brings the following points: (1) the circuit court lacked statutory authority to grant the fee petition; (2) fees were not authorized under Arkansas Rule of Civil Procedure 37 for a discovery dispute; (3) the fees awarded are unreasonable after application of the Chrisco factors; (4) the circuit court erred by awarding attorney's fees for work unrelated to the contested issue; and (5) the circuit court abused its discretion by finding Mr. Hudson's legal arguments "flawed," "disingenuous," and "insulting."
We address Mr. Hudson's first, second, and fourth points together. Essentially, he argues that the circuit court lacked authority to grant the fee petition-under either Arkansas Code Annotated § 9-12-309 or Arkansas Rule of Civil Procedure 37 for a discovery dispute. He also argues that the court awarded fees for work unrelated to the issue of support and that such fees are not recoverable. Mr. Hudson claims that fees are allowed pursuant to the statute only during the pendency of a divorce case or for post-decree litigation involving the enforcement of prior support orders. He argues that the court's clarification or interpretation of its support order does not constitute the "enforcement" of a support order and that the court therefore erred in awarding fees in this case.
Although, as a general rule, attorney's fees are not allowed in the absence of a statute permitting their allowance, a circuit court has the inherent power to award attorney's fees in domestic-relations proceedings. Vice v. Vice , 2016 Ark. App. 504, at 9-10, 505 S.W.3d 719, 725. In Vice , the appellant argued that the circuit court lacked statutory authority to award attorney's fees where it had terminated child support for one of the appellant's children and had ordered continued child support to be paid for an adult, disabled daughter. The court rejected the appellant's argument, holding the circuit court had the inherent authority to award fees in a domestic-relations case and that "no statutory authority is required." Id. at 10, 505 S.W.3d at 725; see also French v. French , 2011 Ark. App. 612 (affirming award of attorney's fees in post-divorce-decree case in which circuit court amended its decree regarding division of appellant's federal pension and enforcing the decree's provisions regarding debt repayment). Thus, the court had the inherent authority to award attorney's fees in this case independent of Ark. Code Ann. § 9-12-309 or Rule 37 of the Arkansas Rules of Civil Procedure. Therefore, we also reject appellant's argument that the fees were not recoverable for "work unrelated to the contested issue."
Mr. Hudson also argues that the fees awarded are unreasonable after application of the Chrisco factors. See Chrisco v. Sun Indus., Inc. , 304 Ark. 227, 800 S.W.2d 717 (1990). We have held that an analysis of the Chrisco factors is no longer required in domestic-relations cases when considering an award of attorney's fees. Tiner v. Tiner , 2012 Ark. App. 483, at 16-17, 422 S.W.3d 178, 187. In these matters, the circuit court is in a better position than we to evaluate the services of counsel and observe the parties, their level of cooperation, and their obedience to court orders. Friend v. Friend , 2010 Ark. App. 525, at 13, 376 S.W.3d 519, 527. Due to its intimate acquaintance with the record and the quality of services rendered, we usually recognize the superior perspective of the circuit court in assessing the applicable factors in these cases. Fallin v. Fallin , 2016 Ark. App. 179, at 15, 492 S.W.3d 525, 534. Whether the circuit court should award fees and the amount thereof are matters within its discretion. Vice , 2016 Ark. App. 504, at 10, 505 S.W.3d at 725.
In the case at bar, the circuit court had entered the divorce decree, presided over the hearings to determine the appropriate amount of child support, reviewed the parties' pleadings and briefs, considered the evidence and arguments, and specifically found in its order awarding fees that the amount requested was justified and proper based on the amount of preparation and court time and the experience level of Ms. Hudson's attorney. The court was not required to render findings on the Chrisco factors, and its fee award is not an abuse of its discretion.
Finally, Mr. Hudson contends that the circuit court abused its discretion by finding Mr. Hudson's legal arguments "flawed," "disingenuous," and "insulting." In its letter opinion dated June 28, 2017, the court said it was "struck by how disingenuous" and "insulting" Mr. Hudson's counsel's argument was, and it noted in its order awarding fees that Mr. Hudson's calculated amount of income was deficient and based upon "flawed" legal theories. He asks us to reverse these "findings" and remand for a reconsideration of the fee award by holding that his arguments were "reasonable." First, two of the allegedly inaccurate adjectives used by the court to describe Mr. Hudson's arguments were in a letter opinion. It was not a final order and was not incorporated into a final order. A final order on the issues was entered on August 11, 2017. Even if a circuit court's uncharitable characterization of a party's arguments ever constitutes a "finding," statements in a letter opinion that is not a final order are not such findings. The court's order awarding fees did refer to Mr. Hudson's "flawed" legal theories, but Mr. Hudson has cited no authority for us to "reverse" this statement. We will not consider the merits of an argument if the appellant fails to cite any convincing legal authority in support of that argument and it is otherwise not apparent without further research that the argument is well taken. Dodson v. Allstate Ins. Co. , 345 Ark. 430, 460, 47 S.W.3d 866, 886.
Affirmed.
Virden and Whiteaker, JJ., agree.
After the divorce, he started farming, although it was not clear whether he had earned any income from farming at the time of the hearing.
Arkansas Code Annotated section 9-12-309 authorizes a court to award attorney's fees "for the enforcement of alimony, maintenance, and support provided for" in a divorce decree. | [
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ROBERT J. GLADWIN, Judge
Betty Guenther appeals the Pulaski County Circuit Court's July 25, 2017 order appointing a permanent guardian of the person and estate of James Guenther, her husband, and the order appointing a temporary guardian of James filed March 2, 2017. Her sole argument on appeal is that the circuit court erred by ordering her to transfer all the funds previously held jointly in her and James's names into James's guardianship account to be administered by appellees Glynn Guenther and Aric Guenther, James's son and grandson, respectively, and to return all of James's property to his estate. For the following reasons, we dismiss the appeal.
The record was lodged on appeal on October 25, 2017. According to pleadings filed-first in the circuit court, then in this court-Betty died on November 2, 2017, after the record had been lodged on appeal. In Planchon v. Local Police & Fire Retirement Systems , 2015 Ark. 131, 458 S.W.3d 728, the Arkansas Supreme Court stated that "[it has] no rule governing substitution on appeal." In Planchon , the appellant died after the record was lodged; as a result, his attorney filed a motion for revivor and substitution or, alternatively, to remand to the circuit court for entry of such an order. The supreme court remanded because there was no statute or rule in place that allowed for revival and substitution of an appellant otherwise. See id. In response to Planchon , Rule 12 of the Arkansas Rules of Appellate Procedure-Civil was adopted to create a procedure for substitution of parties on appeal. Rule 12 became effective in January 2018.
In the instant matter, instead of filing a suggestion of death and a motion for revivor or remand in our court, which was the procedure before January 2018, Betty's counsel filed a petition in the circuit court after the record had been lodged on appeal but before the effective date of Rule 12. The petition, filed in James's guardianship matter (60PR 2016-2225), was for special administrators to be appointed and substituted as the party for Betty in the guardianship matter and in the appeal (CV-17-884). The order was signed and filed by the circuit court on December 13, 2017. On March 12, 2018, special administrators on behalf of Betty filed a motion in this court to supplement the record, requesting that the petition for special administrators and order appointing them be added to the record on appeal, thus substituting themselves as the party for Betty on appeal.
However, the circuit court was without jurisdiction to appoint special administrators to act on Betty's behalf. Arkansas Code Annotated section 28-1-116(e)(1) (Repl. 2012) provides that an appeal shall stay other proceedings in the circuit court except when and to the extent that the court finds that no interested person will be prejudiced and by order permits other proceedings to be had. Generally, a circuit court loses jurisdiction to act once the record is lodged on appeal. See Myers v. Yingling , 369 Ark. 87, 251 S.W.3d 287 (2007) (filing of a notice of appeal from an unappealable order and the subsequent lodging of the record in the appellate court bars the circuit court from acting further until the appellate court formally dismisses the appeal).
Nonetheless, in child-custody and child-support cases, the circuit court retains jurisdiction to modify or enforce prior orders, see Slaton v. Slaton , 330 Ark. 287, 956 S.W.2d 150 (1997), and circuit courts have continuing jurisdiction to correct records in order to make them speak the truth, see Myers, supra. By analogy, a guardianship case requires the circuit court's ability to modify or enforce its orders based on the needs of the ward. E.g. , Kuelbs v. Hill , 2010 Ark. App. 793, at 5-6, 379 S.W.3d 716, 719-20 (the circuit court acted within its authority by removing a noncompliant guardian after the record had been lodged on appeal). Taking this reasoning to its fullest extent, a circuit court would not have jurisdiction in a guardianship case to "act further" in the matter, save for its need to enforce or modify orders based on the ward's needs. See id. Thus, the exception to the rule that a circuit court loses jurisdiction to act once the record is lodged on appeal as described in Kuelbs -a circuit court must act to safeguard the ward-is not applicable in the present circumstances. The circuit court was without authority to appoint special administrators to replace Betty, whose case was on appeal and squarely within this court's jurisdiction.
Accordingly, because the appeal before us does not have an appellant to prosecute the appeal, we dismiss. ,
Dismissed.
Virden and Vaught, JJ., agree.
This court mistakenly granted the motion to supplement the record, not taking into consideration the implications of Planchon , supra , and the resulting Rule 12, because neither party made these arguments in their pleadings before this court.
Appellees filed a pending motion in the Arkansas Court of Appeals on March 19, 2018, alleging that Betty's appeal should be dismissed because she failed to submit it within thirty days from the judgment, decree, or order appealed from as required by Rule 4(a) of the Arkansas Rules of Appellate Procedure-Civil (2018), arguing that Betty's point on appeal referred only to the temporary order, which is an appealable order under Arkansas Code Annotated section 28-65-218(i) (Repl. 2012). Because the appeal is dismissed on other grounds, appellees' motion to dismiss is moot.
The question Betty brought before this court on appeal is whether the circuit court erred in ordering her to reinstate funds, which had been held jointly by her and James, into James's guardianship account, to be used for both of them. Because Betty has died, the joint nature of the original accounts would necessarily convert to sole ownership in James; thus, the issue on appeal appears to be moot. | [
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ROBERT J. GLADWIN, Judge
This appeal of a divorce decree returns after we originally dismissed the case for lack of a final order. Evelyn Chism appeals the judgment in favor of her ex-husband, James R. Chism (Jim), in the amount of $118,721.40. Jim cross-appeals from the circuit court's decision declining to set aside certain deeds Evelyn allegedly obtained through undue influence over him. The parties' adult son, James Gregory Chism (Greg), appeals from that part of the decree awarding his parents money judgments for a loan for the purchase of a vehicle and the purchase of a home and real property. We reverse the decree awarding Jim one-half of Evelyn's income; affirm the circuit court's refusal to set aside the conveyances; affirm the judgment against Greg for the money he borrowed to the purchase the vehicle; and reverse the decree as to Greg's oral agreement to purchase a house and five acres.
This was the second time Evelyn and Jim had married each other. Their first marriage ended in divorce in 1987. They remarried in 1993. The parties separated in early January 2014, and Evelyn filed her complaint for divorce on January 23, 2014. Evelyn amended her complaint to seek an unequal division of the parties' property. Jim answered. He filed a counterclaim, claiming that Evelyn had kept all the money she had earned from her employment and her retirement benefits, which he asserted was marital property separate from that of the parties' joint accounts, and he asked for an accounting. He sought to set aside two conveyances-a warranty deed and a mineral deed-made on June 12, 2012, on the basis that Evelyn exerted undue influence over him. Jim filed a third-party complaint against the couple's two children, Greg and Dena Lynn Smith, asking the court to set aside the June 12, 2012 conveyances in which the children had interests.
A trial was held over two days in July and August 2015. In October 2015, the circuit court entered its letter opinion deciding the case. After the court ruled that the pleadings would be amended to conform to the proof, the court granted Evelyn a divorce and distributed certain real property to Jim and Evelyn as his and her separate property. The court ordered all marital property, real and personal, with the exception of a marital mineral interest, sold and the proceeds divided equally. The court found that any earnings and retirement benefits Evelyn had earned from her employment with the United States Postal Service (USPS) were marital property and awarded Jim half of those benefits, as well as any retirement benefits Evelyn had drawn during the pendency of the divorce. The court awarded Evelyn and Jim a judgment against Greg for $97,500 based on an oral agreement to buy five unspecified acres and a house from Jim and Evelyn. Evelyn and Jim were each awarded one-half of that amount. The court further entered judgment against Greg in favor of Evelyn and Jim for money used to pay a truck loan, with Evelyn and Jim each awarded approximately $11,500. The court further found that Evelyn, Jim, and Greg were tenants in common of a reservation of the mineral interests in which the surface interest was conveyed to the daughter, Dena. The court also found that Evelyn, Jim, and Greg were tenants in common of a reservation of the mineral interests in which the surface interest was conveyed to Evelyn and Greg as joint tenants with right of survivorship. Other tracts were found to be marital property, with Evelyn and Jim reduced to tenants in common, and the court ordered the property sold. On Jim's counterclaim seeking to set aside certain conveyances on the ground that Evelyn exercised undue influence over him, the court found that Jim failed to show that Evelyn had occupied a position of dominance over him and refused to set aside the conveyances.
The court found that Evelyn's earnings and retirement benefits from the USPS were marital property, that she had kept the money in a separate account in her separate name, and that she failed to account for this money. Jim was awarded a judgment for approximately $118,000, representing one-half of the sums she had earned.
After some revision and correspondence between the court and counsel, the circuit court entered its decree on December 17, 2015. The court also entered an agreed order staying enforcement of the money judgment against Evelyn until the appeal could be decided. The court also entered a qualified domestic relations order to effectuate the division of Evelyn's retirement benefits.
We dismissed the appeal from those orders on June 8, 2016, for lack of a final order. Chism I , supra. On remand, the circuit court entered an order that included a Rule 54(b) certificate to resolve the finality issues that were raised in Chism I. See Ark. R. Civ. P. 54(b). This order granted judgments in favor of Jim for his payment of marital expenses such as mortgage, utility payments, taxes, insurance, and the like. It also provided that Jim was entitled to one-half of Evelyn's gross monthly retirement benefits and that he would have judgment for that amount through the sale of the parties' property. Later, the circuit court entered an order disposing of Jim's third-party complaint attempting to set aside the conveyances of a surface interest to Greg in a further effort to resolve any potential finality issues. The court ruled that the claim would be denied for the reasons stated in the original decree. The order also included a Rule 54(b) certificate. All three parties appeal.
I. Standard of Review
We review traditional cases of equity, such as domestic-relations proceedings, de novo. Hurtt v. Hurtt , 93 Ark. App. 37, 216 S.W.3d 604 (2005). Likewise, we review a circuit court's decision to grant or deny a petition to set aside a deed de novo, but we will not reverse unless the court's findings are clearly erroneous. Lyons v. Lyons , 13 Ark. App. 63, 679 S.W.2d 811 (1984). We defer to the superior position of the circuit court to evaluate the witnesses and their credibility. Id.
II. Arguments on Appeal
On appeal, Evelyn argues that there is insufficient evidence to support a finding that she disposed of her employment earnings between 2002 and 2013 with the intent to defraud Jim and that the circuit court erred in placing the burden on her to prove that she had not spent the funds in an attempt to defraud Jim. On cross-appeal, Jim argues that Evelyn exercised undue influence over him and that certain conveyances should be set aside. In his separate appeal, Greg argues two main points. The first contains several subpoints in which he contends that the circuit court erred in entering a judgment against him on an oral contract for the purchase of real property. Greg further argues that it was error for the circuit court to enter a judgment against him for the balance of a truck loan.
A. Evelyn's Appeal
At trial, Jim presented an exhibit prepared from the parties' tax records showing that Evelyn's earnings and retirement income from her job with the USPS from 2002 to 2013 were approximately $237,000. Evelyn testified that all this money went into an account at Regions Bank that she had opened in her separate name while the parties were divorced. She also testified that the balance was approximately $20,000 just before the parties' separation. Although Jim acknowledged that he was aware of this account, the parties disputed whether Evelyn spent any of her funds on household or other marital expenses. In its decree, the circuit court found that Evelyn
received earnings and retirement income ... from her employment with [USPS] for the years 2002 through 2013 which she held in her sole and separate name and that said funds were unaccounted for by [Evelyn] throughout these proceedings with said earnings and retirement income together totaling $237,442.98.
[Jim] is awarded a judgment against [Evelyn] for one-half of the earnings and retirement income in the amount of $118,721.49.
Evelyn argues that the circuit court erred in awarding Jim a judgment for one-half of the sums she earned while employed with the USPS. Evelyn also argues that she had the right to hold her income in a separate account and to spend her money as she saw fit, as long as she did so in good faith and without the intent to defraud Jim. She further argues that Jim failed to present any evidence whatsoever to prove that she intended to defraud him in any way. We agree.
Arkansas law does not require parties to a divorce to account for every sum spent during a marriage. Our courts have held that a spouse has the right to transfer his or her property, with or without consideration, as long as the spouse does so in good faith and without the intent of defrauding the other spouse. See Skokos v. Skokos , 332 Ark. 520, 968 S.W.2d 26 (1998) ; Wainwright v. Merryman , 2014 Ark. App. 156, 2014 WL 988977. A spouse is not entitled to be reimbursed in a divorce proceeding for every nonconsensual transfer of marital funds made by the other spouse in the absence of proof of an intent to defraud. Skokos , supra.
Here, there was absolutely no evidence presented, nor did Jim even argue, that Evelyn concealed or disposed of her income in an attempt to defraud him, and the circuit court made no such finding. Neither party was able to say how much, if any, money remained in the Regions account at the time of trial. The circuit court had already equally divided this account based on the testimony as to the balance at the time of separation. Given the lack of evidence of any intent by Evelyn to defraud Jim, the circuit court clearly erred in awarding Jim one-half of Evelyn's earnings and retirement income.
B. Jim's Cross-Appeal
While the parties were divorced, Jim purchased a 236-acre farm with the mineral rights. In 2007, Jim agreed to sell the surface interest to Charles Reaves. Evelyn joined the conveyance. After Reaves died, his estate could not continue to make the payments, and the bank holding the mortgage instituted foreclosure proceedings. In September 2009, Jim and Evelyn purchased the surface interest. The mineral interest remained solely in Jim's name.
According to Jim, following the reacquisition of the surface interest, Evelyn began a relentless campaign to have her name added to the mineral interest. On June 12, 2012, two deeds were executed. The first, a warranty deed, conveyed an interest in the surface to Greg, with all three parties becoming joint tenants with right of survivorship. The other deed, executed by Jim, Evelyn, and Greg, conveyed a life estate in the minerals to Jim and Evelyn, with Greg and Dena having the remainder interest.
Jim sought to set aside these conveyances, arguing that Evelyn had exerted undue influence over him. The circuit court found that
[a]lthough there was much testimony given by [Jim] as to the actions of [Evelyn] and how she constantly brought the matter of these lands and minerals up for discussion, the court is not convinced that the influence exerted by [Evelyn] was sufficient to show that [Evelyn] occupied such a superior position of dominance or advantage as would imply a dominating influence over [Jim]. Therefore, the court refuses to set aside the conveyances in these exhibits and finds that they shall stand.
In his brief, Jim discusses what he contends are examples of Evelyn's exercise of undue influence over him. At trial, he introduced evidence attempting to show that he was susceptible to such influence because he suffered from cancer and other health problems. Evelyn presented testimony from herself and her children that Jim was the dominant figure in the relationship and that Jim made all the financial decisions for the couple.
Citing Young v. Young , 101 Ark. App. 454, 278 S.W.3d 603 (2008), Jim argues that the circuit court erred in failing to set aside the conveyances because once a spouse has shown that a confidential relationship has existed with the other, and that the other spouse was the dominant party in the relationship, it is presumed that a transfer of property from the former to the latter was invalid due to coercion and undue influence. He further argues that the circuit court should have required Evelyn and Greg to come forward with evidence to rebut the presumption.
The Young court cited Myrick v. Myrick , 339 Ark. 1, 2 S.W.3d 60 (1999), in support of its discussion of the presumption of invalidity. In Myrick , the supreme court pointed out that "the simple existence of a dominant party in the relationship does not, in and of itself, invoke the presumption of invalidity; rather, the party claiming duress or coercion must establish further sufficient evidence to invoke the presumption, after which the burden to prove otherwise rests with the dominant party." 339 Ark. at 8, 2 S.W.3d at 64. Here, the circuit court found that Jim failed to meet the first prong of adequately proving dominance by Evelyn. Therefore, presumption of invalidity was never raised, and the burden never shifted to Evelyn to prove the voluntariness of the conveyances.
The circuit court did not err in refusing to set aside the conveyances.
C. Greg's Separate Appeal
We turn now to Greg's argument that the circuit court erred by entering judgment against him on an oral contract for the purchase of real property.
All three parties testified that there was an oral agreement for Greg to purchase a house and five acres out of the 236-acre farm. Greg was to pay his parents $1,000 a month, interest free, for ten years. He paid $22,500 toward the purchase. None of the parties presented evidence as to where the five acres were located, nor was the court asked to determine what five acres Greg had purchased. Jim testified that the specific property to be sold would be surveyed and the boundaries marked once Greg had finished paying for the land. In his third-party complaint against Greg, Jim did not seek judgment against Greg for this debt. Neither did Jim specifically ask during his testimony for judgment against Greg for the unpaid balance. Also, Jim's counsel argued in closing that there was no agreement; but if there were, it was unenforceable:
I don't think the court can do anything with [the oral agreement]. The court can't make an agreement. There's no agreement, first place, and the court can't make an agreement. It's an oral agreement, and we all know that if an agreement is to convey land, it must be set out in writing. So, I don't think the court can do anything on the five acres.
Nevertheless, the circuit court found that Greg had paid only $22,500 of the purchase price, leaving a remaining balance of $97,500. The court reduced this amount to judgment, with Evelyn and Jim each awarded half.
On appeal, Greg contends that the circuit court erred and argues four subpoints. Greg is correct. Neither Jim nor Evelyn asked the court to enforce the oral agreement. To the contrary, Jim's counsel clearly acknowledged that Jim was not requesting such relief and stated that the court could not grant such relief because of the statute of frauds. The court did not make a finding as to the statute of frauds, but the specific five acres involved are not in any way identified and no means of identification are furnished, as required by the statute. See James v. Medford , 256 Ark. 1002, 512 S.W.2d 545 (1974). Thus, the circuit court erred in granting judgment for the unpaid purchase price because to do so is to enforce a contract otherwise barred by the statute of frauds.
For his second point, Greg argues that the circuit court erred in granting judgment in favor of his parents for the money loaned for his vehicle. He argues that his mother had forgiven the loan on behalf of both herself and Jim.
It is undisputed that Jim wrote a check on his and Evelyn's joint account for approximately $25,000 and gave it to Greg to pay off his vehicle. Greg made some payments to his parents before ceasing to make the payments altogether. The circuit court found that the outstanding balance owed was $23,552.64. Evelyn and Jim were each awarded judgment against Greg in the amount of $11,776.32.
At trial, Evelyn asked for one-half of the $26,000, which originated in her retirement account and that was ultimately loaned to Greg to pay for his vehicle. She also testified that she told Greg he did not have to repay the money. She said she had discussed the matter with Jim before telling Greg. Although he acknowledged that Evelyn told Greg the loan was forgiven, Jim denied that he told Greg he no longer needed to pay for the vehicle. He also said he intended for Greg to pay the money back.
Although Evelyn testified she told Greg the loan was forgiven, the circuit court was not required to believe her testimony. Disputed facts and determinations of the credibility of witnesses are within the province of the fact-finder. Farmers Home Mut. Fire Ins. Co. v. Bank of Pocahontas , 355 Ark. 19, 129 S.W.3d 832 (2003). The fact-finder is free to believe or disbelieve the testimony of any witness, even if it is uncontradicted or unimpeached. See Farm Bureau Mut. Ins. Co. of Ark., Inc. v. Foote , 341 Ark. 105, 14 S.W.3d 512 (2000). It is axiomatic that the testimony of an interested party is never considered uncontroverted but is instead considered to be disputed as a matter of law. Ester v. Nat'l Home Ctrs., Inc. , 335 Ark. 356, 981 S.W.2d 91 (1998). We cannot, therefore, say that the circuit court's ruling awarding judgment against Greg for the vehicle loan is clearly erroneous.
III. Conclusion
In conclusion, we reverse the decree awarding Jim one-half of Evelyn's income; affirm the circuit court's refusal to set aside the conveyances; affirm the judgment against Greg for repayment of the loan to pay off his vehicle; and reverse the order enforcing Greg's oral agreement to purchase the house and five acres.
Affirmed in part and reversed in part on direct appeal; affirmed on cross-appeal.
Gruber, C.J., and Abramson, J., agree.
Chism v. Chism , No. CV-16-337 (June 8, 2016) (appeal dismissed) (Chism I ). | [
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ROBERT J. GLADWIN, Judge
Shuronda Davis appeals the Arkansas Workers' Compensation Commission's (Commission's) October 23, 2017 opinion that reversed the administrative law judge's (ALJ's) decision and found that Davis did not prove she had sustained compensable injuries other than those to her right arm and left knee. On appeal, Davis argues that the Commission erred in finding that (1) she had reached the end of her healing period for her left knee, and (2) she did not sustain injuries to her low back and both thumbs. We affirm.
I. Facts
Davis, who worked for Remington Arms Company (Remington), slipped and fell on her hands and knees when she was at work on April 22, 2016. Remington paid medical benefits for treatment of Davis's compensable injuries to her right arm and left knee. When Davis later claimed injuries to her thumbs and lumbar spine from the fall, Remington controverted those claims.
At a hearing to determine the compensability of the alleged thumb and back injuries, the end date of Davis's healing period, and entitlement to temporary total-disability benefits (TTD) and additional medical treatment, Davis testified that she had worked for Remington for twenty-two years, most recently as a primer charger, dealing with explosives. She said that on April 22, 2016, she met in the front of the department with other workers to do hand exercises for carpal-tunnel and tendinitis prevention. After she finished those exercises, she walked to the trash can. Davis said,
That is when I slipped and fell on something greasy and oily on the floor. When I proceeded to fall, I put my hands out to try to catch myself, but I ended up landing on my hands and on my knees and then going backward. I was on concrete. It was just a flat surface. I hurt my hands and my knees when I fell. I did not know that my back was hurt until the next morning when I woke up because I could not move.
Davis said that the accident occurred on a Friday, and she did not work the remainder of the day. She was taken to Concentra in North Little Rock where Dr. Moore performed x-rays. She was sent back to work but stayed only an hour after having informed her supervisor that she was hurting and needed to go home. Because there was no nurse on site on Saturday, she reported to the nurse on Monday morning that she woke on Saturday with back pain and could not get out of bed. The nurse told her to go back to Concentra. Despite Davis's testimony that she went to Concentra and was told that an appointment had not been arranged and she could not be seen, Concentra's records from that day indicate that Davis reported new back pain during her examination.
Davis said that she went on Tuesday to her primary-care physician (PCP), Dr. Norman Pledger, who prescribed physical therapy. She said that her hands and knees were swollen and bruised and that she was also experiencing back pain at that time. She denied experiencing any problems with her back before April 22, 2016.
Davis said that after she completed physical therapy, she went back to her PCP, and he sent her to OrthoArkansas for treatment of her back and knee. That doctor sent her for more physical therapy. She said that after several weeks the therapy had not helped, so an MRI was ordered.
Davis testified that she had not worked since the April 22 fall because she was unable to stand longer than ten minutes and had constant pain in her back and knees. She also said that her thumb "situation" had not resolved. Davis had surgery on one thumb in October but had not had any surgery on her knees because she needed to lose weight first. She said she had been paying for the medical treatment and still owed for some of it. She said that she had applied for Social Security disability but that the claim was still pending and that she had not tried to go back to work. She said that she needed additional medical treatment for her knee, back, and left hand.
Davis said that after Dr. Moore had released her back to work, she talked to the Remington nurse about her back pain. She said that the nurse informed her that because she did not report an injury to her back when the accident first happened, it would not be included in the accident report and would not be part of her workers'-compensation claim. She was told that because Dr. Moore had released her back to work the day of the accident, Remington would not be liable for any more payments or doctors' appointments. She said that she then sought treatment on her own.
Davis said that Dr. Blankenship had been the primary doctor for her back. She said that her low back had not improved since the accident. She said that Dr. Blankenship had ordered the MRI and talked to her about the degenerative changes or arthritis that it revealed. Dr. Blankenship also looked at her left knee, and he ordered an MRI for it as well. She said that he did not talk to her about arthritis, that he counseled her on weight loss, and he told her she needed to lose weight before surgery on her knee could be done. She also said Dr. Blankenship referred her to Dr. Sims, who told her she needed a total-knee replacement, that she needed to lose weight before it was done, and that she had severe knee arthritis along with a weight issue.
Davis said that she saw Dr. Norton in August 2016 for her thumbs, and he performed bilateral injections in both thumbs and a release on her right wrist, which had improved, and Dr. Norton "is going to do the left." She admitted that she had a history of problems with her hand and wrist in the form of carpal-tunnel releases that had been performed "years ago." She also said that Dr. Shock had given her injections in her right elbow in the past.
The ALJ found as follows:
Unfortunately, the disputes in this claim revolve around the fact that many of [Davis's] subsequent complaints, need for treatment, and disability did not manifest themselves immediately; however, clearly, [her] undisputed testimony, which is confirmed by medical records reflect that [her] multiple symptoms manifested themselves shortly thereafter, were logically attributable to the admitted slip and fall on April 22, 2016, and are attributable to the incident. Further, the record reflects that [Remington], specifically, the company nurse, frustrated [Davis's] efforts at obtaining any and all follow-up medical care while relying upon a one-time examination by the company physician at Concentra Health Centers who released [Davis] to return to work without restrictions despite the fact that [she] voiced additional complaints which were subsequently confirmed by medical evidence supported by objective findings. Again, [Davis] was the only lay witness to testify. [Davis's] credible testimony is undisputed. Her credible testimony is corroborated by medical evidence.
....
Regarding the claim of back injury, rather than conduct a further analysis of the medical evidence, suffice it to say that, in my opinion, [Davis] has failed to prove a back injury supported by objective medical findings to warrant the award of medical or indemnity benefits.
....
Again, respondents have frustrated [Davis's] ability to obtain follow-up medical treatment. [Davis's] undisputed testimony reflects that she remains within her healing period related to her left knee injury. [Davis] requires further treatment for her admitted left knee injury, as well as surgery related to her DeQuervain's injury. Accordingly, [Davis] has proven, by a preponderance of the evidence, that she is entitled to [TTD] for her work-related injuries.
The ALJ awarded TTD beginning April 23, 2016, and continuing until Davis's healing period was determined to have ended. Davis was also awarded all outstanding hospital, medical, and related expenses for her left-knee and bilateral-upper-extremity injuries, continued, reasonably necessary medical treatment, and attorney's fees.
Remington appealed the award to the Commission, and Davis cross-appealed the ALJ's finding that she had failed to prove an injury to her lumbar spine on April 22, 2016. The Commission relied on Dr. Moore's report that on the day of the accident Davis complained of right-elbow pain and left-knee pain after a fall and that "no other injuries [were] reported." In the follow-up appointment on Monday, April 25, 2016, it was noted that Davis continued to complain of right-elbow pain and left-knee pain but also reported a new symptom, "low back pain." The Commission also notes the April 26, 2016 assessment by her PCP that Davis reported "1. Acute bilateral low back pain without sciatica." The Commission found, "The record does not show that this assessment of acute low back pain was causally related to the April 22, 2016 compensable injury." The Commission continued,
The evidence before the Commission does not demonstrate that [Davis] sustained compensable injuries to any anatomic area except for the stipulated compensable injuries to [her] right arm (including elbow) and left knee. To the extent that [Davis] contends she sustained compensable injuries to any region except the right arm and left knee, the Full Commission finds that [Davis] was not a credible witness. The record does not show that [Davis] injured her right wrist/thumb or left wrist/thumb when she fell on April 22, 2016.
Nor does the evidence show that [Davis] sustained a compensable injury to her back on April 22, 2016. We reiterate the treating medical provider's report on April 22, 2016, that "no other injuries" were reported that date except for the compensable injuries to [Davis's] right arm (elbow) and left knee. The evidence does not demonstrate that the abnormalities shown on the July 6, 2016 MRI of [Davis's] lumbar spine were causally related to the April 22, 2016 stipulated accidental injury.
The parties stipulated that [Davis] sustained compensable injuries to her right arm and left knee on April 22, 2016. The Full Commission finds that [Davis] did not prove by a preponderance of the evidence that she sustained compensable injuries to her right hand/thumb/wrist, left hand/thumb/wrist, or back. [Davis] did not prove that she sustained an accidental injury causing internal or external physical harm to her right hand/thumb/wrist, left hand/thumb/ wrist, or back. [Davis] did not sustain an injury to these areas which arose out of and in the course of employment on April 22, 2016, required medical services, or resulted in disability. [Davis] did not prove that she sustained an injury to these anatomic regions which was caused by a specific incident or was identifiable by time and place of occurrence.
The Commission further held that because Davis failed to prove she had sustained compensable injuries to her bilateral thumbs or wrists, she was not entitled to additional medical treatment. Further, although Davis was entitled to the treatment she had received for her right arm and left knee, she was not entitled to TTD based on Dr. Moore's opinion that she had reached maximum medical improvement (MMI) on April 25, 2016. The Commission concluded,
The Full Commission recognizes that a radial tear has been shown in [Davis's] left knee, and that a treating physician has opined that [Davis] "will need a knee replacement if she can get her weight down." The evidence does not demonstrate, however, that a knee replacement has been scheduled or is currently recommended. We find that [Davis's] ultimate need for knee replacement surgery does not extend [her] healing period beyond April 25, 2016, when Dr. Moore assessed [MMI] and released [Davis] to return to work. [Davis] testified that she was unable to return to work because of "My back." The Full Commission has affirmed the [ALJ's] finding that [Davis] did not prove she sustained a compensable back injury.
The Commission noted that there was not "currently a recommendation for surgery to [Davis's] left knee." Davis appeals, arguing that the Commission erred in finding that she had reached the end of her healing period relative to her left-knee injury and in finding that she did not sustain injuries to her low back and both thumbs.
II. Standard of Review
We must view the evidence in the light most favorable to the Commission's decision and affirm the decision if it is supported by substantial evidence. Nat'l Transit Staffing, Inc. v. Norris , 2018 Ark. App. 229, 547 S.W.3d 730. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether this court might have reached a different result from the Commission but whether reasonable minds could reach the Commission's result. Id. Questions concerning the credibility of witnesses and the weight to be given to their testimony are decided by the Commission. Id. Further,
[w]e have held that "[w]here there are contradictions in the evidence, it is within the Commission's province to reconcile conflicting evidence and to determine the true facts." Templeton v. Dollar Gen. Store , 2014 Ark. App. 248, at 7, 434 S.W.3d 417, 421. The Commission is not required to believe the testimony of the claimant or any other witness but may accept and translate into fact only those portions of the testimony that it deems worthy of belief. Long v. Wal-Mart Stores, Inc. , 98 Ark. App. 70, 250 S.W.3d 263 (2007). Moreover, a claimant's testimony is deemed controverted as a matter of law. See Flynn v. J.B. Hunt Transp. , 2012 Ark. App. 111, 389 S.W.3d 67. Further, the Commission may reject a doctor's opinion as to causation that is based on a history from the claimant that the Commission has determined is not credible. See Roberts v. Whirlpool , 102 Ark. App. 284, 289, 284 S.W.3d 100, 103 (2008).
Hargis v. Lovett , 2018 Ark. App. 227, at 8, 547 S.W.3d 724, 729. Finally, we will not reverse the Commission's decision unless we are convinced that fair-minded persons, with the same facts before them, could not have reached the Commission's conclusions. Nat'l Transit, supra.
III. TTD
Under Arkansas law, to receive TTD the claimant must prove by a preponderance of the evidence that he or she is within the healing period and is totally incapacitated from earning wages. Nat'l Transit, supra. The Commission determines, as a matter of fact, when the healing period has ended. Its decision will be affirmed on appeal if supported by substantial evidence. Id.
[TTD] is determined by the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. An injured employee is entitled to [TTD] when he is totally incapacitated from earning wages and remains in his healing period. Jordan v. Home Depot, Inc. , 2013 Ark. App. 572, at 3, 430 S.W.3d 136, 138. The "healing period" is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102(12). The healing period continues until the employee is as far restored as the permanent character of his injury will permit. Myers v. City of Rockport , 2015 Ark. App. 710, 479 S.W.3d 33, reh'g denied (Jan. 20, 2016). When the underlying condition that caused the disability becomes stable and when nothing further will improve that condition, the healing period has ended. Mad Butcher, Inc. v. Parker , 4 Ark. App. 124, 628 S.W.2d 582 (1982).
Marten Transp., Ltd. v. Morgan , 2017 Ark. App. 608, at 6-7, 532 S.W.3d 139, 143-44.
Davis argues that when Remington refused to provide further medical treatment, she was forced to seek it on her own. The MRI of her left knee on July 6, 2016, reflected a radial tear at the posterior horn/root junction with extrusion of the medial meniscus. Davis requires surgery for her left knee, but it has not been performed because of her excessive weight. She argues that an employee who has suffered a scheduled injury is to receive TTD during the healing period or until he returns to work. Ark. Code Ann. § 11-9-521(a) (Repl. 2012); Wheeler Constr. Co. v. Armstrong , 73 Ark. App. 146, 41 S.W.3d 822 (2001). The healing period is that period for healing of the injury that continues until the employee is as far restored as the permanent character of the injury will permit. Nix v. Wilson World Hotel , 46 Ark. App. 303, 879 S.W.2d 457 (1994). If the underlying condition that caused the disability has become more stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Id.
Davis contends that despite the Commission's recognition that a radial tear has been shown in her left knee, the Commission denied TTD because a knee replacement has not been scheduled or currently recommended. She also claims that it is "uncontroverted" that she cannot work because of her left-knee injury. She argues that the Commission ignores that she is unable to obtain the needed knee replacement because she cannot pay for it herself and has no insurance. She also contends that her weight being the cause of the extension of her healing period does not relieve Remington of responsibility. She claims that because Remington has frustrated her ability to obtain follow-up medical treatment, she remains within her healing period for her knee injury as well as her DeQuervain's injury related to her left wrist.
The Commission reasoned as follows in its ultimate finding that Davis had proved that all the medical treatment of record that had been provided in connection with the compensable injuries to her right arm and left knee was reasonably necessary in accordance with Ark. Code Ann. § 11-9-508(a) :
[T]he parties stipulated that [Davis] sustained a compensable injury to her left knee on April 22, 2016. An x-ray of [Davis's] left knee on April 22, 2016 showed a "small joint effusion." A physician reported "Internal derangement of left knee" on April 26, 2016. There was no evidence of internal derangement of [Davis's] left knee prior to the April 22, 2016 compensable injury. An MRI of [Davis's] left knee on July 6, 2016 showed, among other things, a radial tear in the medial meniscus. There was no record of this abnormality prior to the April 22, 2016 compensable injury.
Regarding TTD, the Commission found:
[Davis] did not prove she was entitled to [TTD], in accordance with Ark. Code Ann. § 11-9-501(a) (Repl. 2012).
The Full Commission recognizes that a radial tear has been shown in [Davis's] left knee, and that a treating physician has opined that [Davis] "will need a knee replacement if she can get her weight down." The evidence does not demonstrate, however, that a knee replacement has been scheduled or is currently recommended. We find that [Davis's] ultimate need for knee replacement surgery does not extend [her] healing period beyond April 25, 2016, when Dr. Moore assessed [MMI] and released [Davis] to return to work. [Davis] testified that she was unable to return to work because of "My back." The Full Commission has affirmed the [ALJ's] finding that [Davis] did not prove she sustained a compensable back injury.
Based on our de novo review of the entire record, the Full Commission finds that [Davis] did not prove by a preponderance of the evidence that she sustained "multiple injuries." [Davis] did not prove that she sustained any compensable injuries other than the stipulated compensable injuries to [her] right arm (elbow) and left knee. [Davis] proved that the medical treatment of record provided for her right arm and left knee was reasonably necessary in accordance with Ark. Code Ann. § 11-9-508(a) (Repl. 2012). [Davis] was not bound by the change of physician rules until she was provided the Form AR-N on November 1, 2016. Based on the record currently before us, [Davis] did not prove her healing period continued beyond April 25, 2016, when Dr. Moore assessed maximum medical improvement. There is not currently a recommendation for surgery to [her] left knee.
Remington argues that substantial evidence supports the Commission's finding that Davis was not entitled to TTD. We agree. Davis was determined to have reached MMI on April 25, 2016, for injuries to her right elbow and left knee. Davis failed to prove any other compensable injury, and she is not entitled to TTD for any injuries other than those that are compensable. The Commission determines when the healing period has ended, and its decision will be affirmed if supported by substantial evidence. Foster v. Tyson Poultry, Inc. , 2013 Ark. App. 172, 426 S.W.3d 563. Additionally, a claimant's failure to return to work must be causally related to the injury. Id.
Remington points to Dr. Moore's evaluation, placing Davis at MMI and releasing her to return to work. Remington emphasizes that the multiple other providers that Davis saw did not find that Davis was unable to return to work. Remington also notes Dr. Blankenship's diagnosis of severe left-knee arthritis and his MRI reading that her left knee showed degenerative changes and a degenerative meniscal tear of the medial meniscus. Remington contends that the Commission considered and determined that Davis's condition was gradual and degenerative. Finally, Remington points to Davis's own testimony that established that her noncompensable back injury was the reason she could not return to work. Thus, Davis's failure to return to work was not causally related to the fall on April 22, 2016, see Foster , supra , and the Commission properly found that Davis is not entitled to TTD.
IV. Injuries Outside of Stipulated Knee and Arm Injuries
To prove a compensable injury as a result of a specific incident that is identifiable by time and place of occurrence, the claimant must establish by a preponderance of the evidence (1) an injury arising out of and in the course of employment; (2) that the injury caused internal or external harm to the body that required medical services or resulted in disability or death; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16) (Repl. 2012), establishing the injury; and (4) that the injury was caused by a specific incident identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i).
Yates v. Boar's Head Provisions Co., Inc. , 2017 Ark. App. 133, at 4-5, 514 S.W.3d 514, 516-17.
Davis argues that the Commission erred in finding that she did not sustain compensable injuries to her low back and both thumbs in the April 22, 2016 fall. Davis testified that she fell on her hands and knees on concrete and that she reported the back pain on Monday following the Friday accident. The Remington nurse sent her back to Concentra, and Dr. Moore noted that she presented with "new complaints" of back pain on Monday. She was told by the Remington nurse that because the back pain had not been reported on the day of the accident, her back would not be included in the workers'-compensation claim.
Davis contends that she sought treatment on her own for her left-knee pain, bilateral-wrist and thumb pain, and low-back pain. She testified that she reported all this pain to her PCP on Tuesday following the Friday accident. She was sent to an orthopedist, Dr. Shock, whose examination of her hands and wrists reflected mild swelling at the scaphoid and the snuffbox. An x-ray showed "possible lucency at the waist of the scaphoid." Her diagnosis included bilateral DeQuervain related to her wrists. The MRI of her back revealed "mild central spinal canal stenosis present in the L3-4 and L4-5 levels due to bulging of the disc, fact arthropathy, and thickening of the ligamentum flavum. The MRI of her left knee revealed a radial tear involving the posterior horn/root junction of the medial meniscus with possible degenerative maceration of the posterior horn. "Mild bone contusion is seen on either side of the medial compartment." Finally, x-rays of both thumbs revealed advanced degenerative arthritis.
Davis argues that the injuries, in addition to those stipulated, are also causally connected to her work accident. She claims that the injuries she complained of are congruent with the fall as she described. She contends that the objective findings of bulging discs prove her back injury, and she testified that she was not having back pain before the accident. Davis attributes her inability to return to work to her back. She argues that these injuries required medical services, including corticosteroid injections of her bilateral wrists and surgery on her right wrist. She underwent physical therapy for her back pain. Thus, she contends that substantial evidence does not support the Commission's conclusion that her injuries were limited to her left knee and right arm.
The Commission denied any medical treatment for Davis's lower back, wrists, and thumbs. The Commission relied heavily on Davis's treatment record at Concentra on April 22, 2016, which noted that she complained of "Right Elbow Pain and Left Knee Pain after a fall," and "No Other Injuries Reported." At Davis's follow-up appointment on April 25, 2016, it was "noted that [Davis] continued to complain of right elbow pain and left knee pain but also that [she] reported a new symptom, 'Low Back Pain.' " The Commission recited the medical records related to those areas as set forth in Davis's argument above, then found as follows:
The evidence before the Commission does not demonstrate that [Davis] sustained compensable injuries to any anatomic area except for the stipulated compensable injuries to [her] right arm (including elbow) and left knee. To the extent that [Davis] contends she sustained compensable injuries to any region except the right arm and left knee, the Full Commission finds that [Davis] was not a credible witness. The record does not show that [Davis] injured her right wrist/thumb or left wrist/thumb when she fell on April 22, 2016.
Nor does the evidence show that [Davis] sustained a compensable injury to her back on April 22, 2016. We reiterate the treating medical provider's report on April 22, 2016 that "no other injuries" were reported that date except for the compensable injuries to [Davis's] right arm (elbow) and left knee. The evidence does not demonstrate that the abnormalities shown on the July 6, 2016 MRI of [Davis's] lumbar spine were causally related to the April 22, 2016 stipulated accidental injury.
The parties stipulated that [Davis] sustained compensable injuries to her right arm and left knee on April 22, 2016. The Full Commission finds that [Davis] did not prove by a preponderance of the evidence that she sustained compensable injuries to her right hand/thumb/wrist, left hand/thumb/wrist, or back. [Davis] did not prove that she sustained an accidental injury causing internal or external physical harm to her right hand/thumb/wrist, left hand/thumb/ wrist, or back. [Davis] did not sustain an injury to these areas which arose out of and in the course of employment on April 22, 2016, required medical services, or resulted in disability. [Davis] did not prove that she sustained an injury to these anatomic regions which was caused by a specific incident or was identifiable by time and place of occurrence.
Remington contends that substantial evidence supports the Commission's finding that Davis failed to prove by a preponderance of the evidence that she sustained any compensable injuries other than the stipulated compensable injuries to her right arm and left knee. We agree with this contention. The evidence was that Davis did not report injuries to her hands, wrists, or thumbs during her treatment with Dr. Moore on April 22 and 25, 2016. Further, Dr. Blankenship's MRI of Davis's lumbar spine showed chronic degenerative problems with no reference to an acute injury, and x-rays of her thumbs revealed degenerative arthritis. Based on this evidence and the Commission's province of determining facts and credibility, we affirm the Commission's determination. See Yates , supra ; Hargis, supra.
Affirmed.
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BART F. VIRDEN, Judge
Appellant John C. Garrett, as heir and nominated personal representative of Nancy Lee Garrett's estate, appeals from the Sebastian County Circuit Court's order that granted summary judgment to appellee George Webb Neece and denied summary judgment to Nancy Lee Garrett. In its order, the trial court determined that trust documents executed by Eva Lee Neece, the now deceased mother of George and Nancy, evidenced her intent to give Tract A, consisting of 39.07 acres, to George and Tract B, consisting of 38.49 acres, to Nancy. Garrett argues that the trust (1982 Revocable Trust) created by Eva to hold the previously undivided eighty-acre tract was not revoked and that the eighty-acre tract remains in the 1982 Revocable Trust. We affirm and remand with instructions.
I. Background and Procedural History
In March 1982, Eva, a widow at the time, established the 1982 Revocable Trust holding property, including approximately eighty acres in Sebastian County. Eva identified herself as both settlor and trustee. She named George and Nancy as successor trustees. The trust provided that the settlor reserved the right to revoke the trust at any time but did not specify a manner for revocation. It further provided that, in the absence of revocation, the trust would remain in effect until the death of the settlor, at which time the successor trustees would distribute one-half of the assets to George and the other one-half to Nancy. The 1982 Revocable Trust also provided,
Generally, and without limitation by any specific enumeration herein, the Trustees shall have the power to manage, control, operate, convert, reconvert, invest, reinvest, sell, exchange, lease, mortgage, create a security interest in, pledge, pool, utilize or otherwise encumber and deal with the property of this Trust, for and in behalf of this Trust and the beneficiaries thereof, as any individual would have in respect of his own property and funds.
On May 5, 2009, Eva executed a quitclaim deed from herself, individually, to George, conveying 39.07 acres of the eighty-acre tract from the 1982 Revocable Trust. The deed was filed August 15, 2011. This portion is referred to as Tract A. On July 28, 2009, Eva executed an amendment to the 1982 Revocable Trust in which she excepted from the trust's property 39.07 acres (Tract A); the amendment provided that the remaining property, 38.49 acres (referred to as Tract B), would be distributed to Nancy upon termination of the trust.
On January 22, 2010, Eva executed another revocable trust (2010 Revocable Trust) and specifically revoked the 1982 Revocable Trust and all subsequent amendments to it. She again identified herself as settlor and trustee and named George as successor trustee. Eva then purported to transfer property, including Tract B, into the 2010 Revocable Trust. No mention was made of Tract A. Eva again reserved the right as settlor to revoke the trust at any time. Further, the trust provided that, in the absence of revocation, the trust shall remain in effect until the death of the settlor, and at that time the successor trustee shall initiate a sale of Tract B and distribute the proceeds in one-third shares to three members of the Garrett family.
On August 22, 2011, Eva did two things: she executed an amendment to the 2010 Revocable Trust and executed her last will and testament. The amendment to the 2010 Revocable Trust included a specific bequest of 38.49 acres (Tract B) to the Nancy Lee Garrett Bypass Trust. The amendment also provided that the balance of the trust estate should be distributed to George if he survived the settlor. In Eva's will, she gave the rest, residue, and remainder of her property to the trustee of the 2010 Revocable Trust with instructions to add the property to the trust and distribute the property in accordance with the 2010 Revocable Trust and its amendment. Eva died in June 2015.
In August 2016, Nancy filed a complaint against George, individually and as successor trustee of the 1982 Revocable Trust, seeking a declaratory judgment that the 2009 conveyance of Tract A from Eva, individually, to him is void and should be set aside and that the 1982 Revocable Trust be declared owner of the property at issue in the deed, of which George and Nancy are joint owners. George filed an answer to Nancy's complaint asserting that the 1982 Revocable Trust was revoked on January 11, 2010, and no longer exists. George denied the material allegations of the complaint.
On February 14, 2017, Nancy moved for summary judgment, asserting that there were no genuine issues of material fact to be litigated, that she was entitled to a declaration that the 2009 quitclaim deed from Eva to George is void and therefore should be set aside, and that the 1982 Revocable Trust remains in full force and effect with George and Nancy as its rightful beneficiaries. She attached to her motion a copy of the 1982 Revocable Trust and the 2009 quitclaim deed to George.
In March 2017, George amended his answer and pled affirmatively that, by executing and delivering the 2009 quitclaim deed to him, Eva effectively partially revoked the 1982 Revocable Trust or, alternatively, Eva made a distribution of Tract A outside the trust. George admitted that Eva created the 1982 Revocable Trust but asserted that he "lack[ed] sufficient knowledge or information to form a belief as to the truthfulness of the allegation that the real property which is the subject of this litigation was conveyed to the Trustee of the 1982 Trust" and "demand[ed] that [Nancy] be held to strict proof thereof." George also moved for summary judgment and noted, "[Nancy] alleges, but has not yet provided any proof, that legal title to the lands which are the subject of this litigation was formally conveyed to the Trustee of the 1982 Trust." He alleged that Eva expressly revoked the 1982 Revocable Trust when she executed the 2010 Revocable Trust and that she either effectively conveyed Tract A to him through the 2009 quitclaim deed or, upon revocation of the 1982 Revocable Trust, title to the assets reverted to Eva as the settlor. George attached to his motion, in addition to copies of the 1982 Revocable Trust and the 2009 quitclaim deed, the amendment to the 1982 Revocable Trust, the 2010 Revocable Trust and its amendment, and Eva's last will and testament. George also filed a counterclaim and third-party complaint in which he named Nancy as a defendant in her capacity as successor trustee of the 1982 Revocable Trust and sought quiet title, declaratory judgment, and a mandatory injunction.
On June 13, 2017, a hearing was held on the parties' motions for summary judgment. Following the hearing, the trial court entered an order on July 11, 2017, after "a thorough review of the exhibits to the pleadings, particularly the trusts and their amendments." The trial court granted George's motion and denied Nancy's motion. It further found that Eva's intent was clearly manifested and accomplished through her trust documents: George was to receive Tract A, and Nancy was to receive Tract B.
II. Standard of Review
Rule 56(c)(1) of the Arkansas Rules of Civil Procedure provides that a summary-judgment motion shall specify the issue or issues on which summary judgment is sought and may be supported by pleadings, depositions, answers to interrogatories and admissions on file, and affidavits. No party shall submit supplemental supporting materials after the time for serving a reply, unless the court orders otherwise. Ark. R. Civ. P. 56(c)(1). The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law on the issues specifically set forth in the motion. Ark. R. Civ. P. 56(c)(2). Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. McGough v. Pine Bluff Sch. Dist. , 79 Ark. App. 235, 85 S.W.3d 920 (2002). Generally, in an appeal from a summary judgment, the evidence is viewed most favorably to the party resisting the motion and any doubts and inferences are resolved against the moving party, but when the parties agree on the facts, we need only determine whether the appellee was entitled to judgment as a matter of law. Id. When both sides move for summary judgment and thus, in essence, agree that there are no material facts remaining, summary judgment is an entirely appropriate means for resolution of the case. Id.
III. Discussion
The cardinal rule in construing a trust instrument is that the intention of the settlor must be ascertained. In re Estate of Hyde , 2015 Ark. App. 628, 474 S.W.3d 915. In construing a trust, we apply the same rules applicable to the construction of wills. Id. The paramount principle in the interpretation of wills is that the intent of the testator (or the settlor, in the case of a trust) governs. Id. This intention is to be determined by viewing the four corners of the instrument, considering the language used, and giving meaning to all of its provisions, whenever possible. Id.
Garrett first argues that, although Eva purported to revoke the 1982 Revocable Trust in 2010 with the execution of a second trust, she did not have the authority to revoke the entire 1982 Revocable Trust. Specifically, Garrett maintains that Eva did not have authority to revoke the trust as to property that George and Nancy contributed (the eighty acres in 1999) to the trust and that they became settlors as to the eighty acres. He cites Ark. Code Ann. § 28-73-602(b)(2) (Repl. 2012), which provides that, if a revocable trust is created or funded by more than one settlor, to the extent the trust consists of property other than community property, each settlor may revoke or amend the trust with regard to the portion of the trust property attributable to that settlor's contribution. Moreover, Garrett relies on Ark. Code Ann. § 28-73-103(16), which defines "settlor" as a person who creates, or contributes property to, a trust and provides that, if more than one person creates or contributes property to a trust, each person is a settlor of the portion of the trust property attributable to that person's contribution, except to the extent another person has the power to revoke or withdraw that portion.
Garrett's argument is not preserved for review because he neither cited the statutes he now relies on in his summary-judgment motion nor argued the substance of the statutes in his motion or at the summary-judgment hearing. As a result, the trial court was not given an opportunity to rule on the issue, and there is no ruling for this court to review. Am. States Ins. Co. v. S. Guar. Ins. Co. , 53 Ark. App. 84, 919 S.W.2d 221 (1996) (holding that the issue was not preserved for appellate review when the appellant did not raise the issue at the trial level in the complaint, response to motion for summary judgment and countermotion for summary judgment, or brief in support of the motion).
Garrett next argues that George did not receive title to the property in 2009 because Eva conveyed it in her individual capacity, not as trustee of the 1982 Revocable Trust, and thus conveyed an individual interest in property that did not exist. Garrett concludes that the entire eighty-acre tract thus remains in the 1982 Revocable Trust.
We do not consider Garrett's improper and untimely exhibits suggesting that Eva owned the property only as the trustee of the 1982 Revocable Trust. It is not clear that the trial court considered them given that the trial court's decision was said to have been based on a review of the exhibits to the pleadings. In addition, Garrett submitted them "for reference purposes only"-in other words, not as evidence in support of his motion for summary judgment-and the trial court accepted those exhibits based on trial counsel's erroneous assurances that they had all been part of the pleadings. In any event, we note that Garrett appears to have admitted through the pleadings, as well as in the brief in support of his motion for summary judgment, that Eva herself conveyed the property to her 1982 Revocable Trust and named herself settlor and trustee. Garrett was aware as early as March 1, 2017, that how the eighty acres was initially conveyed to the trust was a disputed matter, yet he made no attempt to offer any proof on that issue until the day of the hearing.
Eva specifically reserved the right as settlor to revoke the 1982 Revocable Trust at any time. A power to revoke a trust has been interpreted as including also the power to revoke the trust in part, thus allowing withdrawal of some of, rather than all, the property from the trust, if that is all the settlor wishes to do. Restatement (Third) of Trusts § 63. Section 28-73-602(c)(2) provides that, when the terms of the trust do not provide a method to revoke or amend a revocable trust, the settlor may revoke or amend the trust (A) by executing a later will or codicil that expressly refers to the trust or specifically devises property that would otherwise have passed according to the terms of the trust or (B) by any other method manifesting clear and convincing evidence of the settlor's intent.
Eva manifested her intent to revoke in part the 1982 Revocable Trust when she executed the May 2009 quitclaim deed to Tract A of the trust property to George. She further manifested that intent to revoke in part by subsequently amending the 1982 Revocable Trust to except Tract A from the trust property in July 2009. Moreover, she expressly revoked the 1982 Revocable Trust when she created the 2010 Revocable Trust, which made no reference to Tract A. See Restatement (Third) of Trusts § 63. Here, not only was Eva the trustee of the 1982 Revocable Trust with the authority to deal with the property pursuant to the trust provisions, she was also the settlor with the individual power to revoke and amend. Given the above facts, George asserts that the 2009 quitclaim deed of Tract A to him was a valid conveyance.
Even if the 2009 quitclaim deed conveying Tract A from Eva in her individual capacity to George were not valid, George would have nevertheless ended up with Tract A. In her will, Eva left the rest, residue, and remainder of her property to the trustee of the 2010 Revocable Trust, i.e., George, with instructions for him to add that property to the 2010 Revocable Trust and distribute it according to the terms of the 2010 Revocable Trust and any amendments thereto. In the amendment to the 2010 Revocable Trust, executed the same day as the will, Eva stated that the balance of the trust estate, which would have included Tract A, shall be distributed to George. The trial court correctly determined that Eva intended through her trust documents to give Tract A to George and Tract B to Nancy. We must, however, remand with instructions for the trial court to enter an amended order to include legal descriptions of the properties designated as "Tract A" and "Tract B." See, e.g. , Allen v. Weldon , 2011 Ark. App. 329, 2011 WL 1689119.
Affirmed; remanded with instructions.
Abramson and Hixson, JJ., agree.
On January 16, 2019, this court granted Garrett's motion to substitute the party, Nancy Lee Garrett, with John C. Garrett, as heir and nominated personal representative of Nancy Lee Garrett's estate.
The record reveals no other information about the Nancy Lee Garrett Bypass Trust.
At the summary-judgment hearing, Garrett offered several exhibits "simply for reference purposes only." He submitted an unrecorded warranty deed dated September 4, 1973, from Eva and George Neece, Jr. (her husband), purporting to convey eighty acres, more or less, in Sebastian County to their two children, George and Nancy, as tenants in common, but reserving life estates for the grantors. Garrett also submitted a quitclaim deed dated December 19, 1997, from Eva, as widow of George Neece, Jr., to George and Nancy, purporting to convey the same land with a relinquishment of dower, homestead, and curtesy rights. Garrett submitted two quitclaim deeds dated January 26, 1999, from George and Nancy and their respective spouses, "in order to correct a previous error," purporting to convey eighty acres to "Eva Lee Neece, as Trustee of the Eva Lee Neece Revocable Trust of the 22[nd] day of March, 1982." The trial court accepted the offered exhibits only after Garrett's counsel assured the trial court that they had been part of the pleadings. They were not.
We note an exception to this general principle, which applies when the references in the trust provisions to the "settlor," in light of the circumstances of the instrument's execution and of the trust's funding, are interpreted as referring to a particular person rather than to the other persons who contributed to the funding of the trust. Restatement (Third) of Trusts § 63 (2003). We need not determine, however, whether this exception applies because Garrett's argument is not preserved for review.
Garrett cites Ark. Code Ann. § 18-12-604 (Repl. 2015) for the proposition that a deed conveying property to or from a trust must identify the trust. His reliance on this statute is misplaced because section 18-12-604(a)(1) deals with notice to third parties, and Garrett does not explain the import of the remainder of the statute.
See footnote 3 of this opinion for a description of those exhibits.
Generally, a sale, conveyance, or transfer of trust property by a trustee, acting with authority, has the same operation and effect as though he or she were the full legal and equitable owner of the property and operates to pass the legal title to the purchaser. 76 Am. Jur. 2d Trusts § 494 (2005). Although it is desirable for the trustee in the transfer instrument to recite that he or she is acting as a trustee in the matter, or at least affix his or her signature as trustee, this is not essential to the effectiveness of the transaction, if he or she has authority to make the conveyance, transfer, or other alienation, it will be referred to his or her authority. Id. § 524. Upon revocation of a revocable trust, the trustee shall deliver the trust property as the settlor directs. Ark. Code Ann. § 28-73-602(d).
Although the amendment to the 2010 Revocable Trust provides for distribution of Tract B to the Nancy Lee Garrett Bypass Trust, rather than to Nancy outright, Garrett has not requested any relief in this regard, and we have no information about the bypass trust aside from a mere mention of its existence in the amendment. | [
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N. MARK KLAPPENBACH, Judge
Following her discharge from Baptist Medical Center, Markitt Smith's application for unemployment benefits was denied by the Department of Workforce Services. Smith appealed to the Appeal Tribunal, which found that she was not entitled to unemployment benefits because she was discharged for misconduct in connection with the work. The Board of Review adopted the decision of the Appeal Tribunal. Smith now appeals the decision of the Board of Review, and we reverse and remand.
Smith was on medical leave from work due to a nonwork injury when she was terminated. A leave-request letter dated April 5, 2018, stated that Smith's leave was approved through April 17, 2018, but noted that the end date was flexible and informed her to update the employer once she had additional information regarding the amount of time off needed. The letter stated that if she did not contact the employer on or before the approved end date, she would be expected to return on her next regularly scheduled work day after April 17, 2018.
Renee Bearfield, Baptist's employee-relations manager, testified that Smith requested additional leave past April 17 but failed to submit the certification needed to have it granted. Bearfield testified that Smith was informed in a May 9 leave-request letter that she needed to provide certain information and documentation within fifteen days. Bearfield said that Smith failed to comply with the letter's requests. Smith testified that she let her supervisor know that she would not be returning by April 17, that she filled out and sent in her portion of the paperwork to obtain additional leave, and that she called her doctor's office and was told that the doctor's portion of the paperwork had been faxed to the employer.
As described by Bearfield, the May 9 letter in the record states that Smith's leave request is under review and instructs her to have her doctor complete and return an attached medical-inquiry form within fifteen days. Also in the record, however, is a "Terminal Evaluation" dated May 8, 2018, indicating that Smith was discharged on that date. The record also contains a form completed by Bearfield providing information in response to Smith's application for unemployment benefits in which Bearfield wrote that May 9, 2018, was Smith's effective date of separation from the employer.
The Appeal Tribunal's decision, which was adopted by the Board of Review, found that Smith was discharged for misconduct because she intentionally disregarded the employer's interests by failing to ensure that her doctor provided the information required by the employer. We review the findings of the Board in the light most favorable to the prevailing party, reversing only when the Board's findings are not supported by substantial evidence. Stewart v. Dir. , 2013 Ark. App. 600, 2013 WL 5745127. Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. Id. Even when there is evidence on which the Board might have reached a different decision, the scope of our judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id. Issues of credibility of witnesses and weight to be afforded their testimony are matters for the Board to determine. Id.
It was in the Board's province to credit Bearfield's testimony that Smith failed to comply with the May 9 letter. Such a finding, however, does not provide a basis for the conclusion that Smith was discharged for misconduct when she was terminated on May 8 or 9. As Bearfield testified, the May 9 letter gave Smith fifteen days to provide requested documentation. Because we conclude that the Board's decision could not reasonably be reached based on the evidence before it, we reverse and remand for an award of benefits.
Reversed and remanded.
Virden and Whiteaker, JJ., agree. | [
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WAYMOND M. BROWN, Judge
Appellant's sole point on appeal is that the circuit court erred and abused its discretion in denying his timely motions for directed verdict due to insufficiency of the evidence. We affirm.
An amended information was filed on August 8, 2017, charging appellant with possession of firearm by certain persons, criminal use of a prohibited weapon, and habitual offender. The affidavit of probable cause for arrest described the events leading to the filing of the information as follows:
On July 24, 2017 officers took a report from a female regarding James Andrew Caple, aka "Andy", making threatening comments. She stated that [appellant] had threatened to kill her and she was afraid for her life. She stated that [appellant] believed that she was working with law enforcement and sent her pictures with him holding guns. She also received a video of him shooting one of the guns.
On July 25, 2017 officers were called out to a local tire shop where the employee had located a gun on their property. While the employee was speaking to another employee an unknown male walked up claiming the gun was his and he wanted it back. The two men would not allow the unknown male to take it, and when they started to call 911, the unknown male ran away. The unknown male was described as tall and skinny with tear drop tattoos around his eyes. It was discovered that [appellant], was [the] male in question, and the gun matched the ones from the pictures the female had showed officers July 24, 2017. [Appellant] is a current Parolee on active supervision and not allowed to possess firearms. The gun in question is a sawed off .22 caliber rifle. [Appellant] has been charged with nine (9) felonies over the last fifteen (15) years.
A bench trial was held in the matter on December 5, 2017. Michael Day, an investigator for the Mountain Home Police Department, testified to receiving a report from the victim alleging that appellant "threatened to kill her" while he was at the Mountain Home Motel on July 22, 2017, because "he thought she was working with the police." Appellant had also sent pictures of himself to her cell phone holding a firearm which she showed Day. She also showed Day the same photos posted on Facebook with a "timestamp" of July 24, 2017. There were seven photos total: three from the victim and four from Facebook. Day admitted no independent knowledge of when or where the photographs were taken. In his opinion, the photos were "absolutely" pictures of appellant and "absolutely" pictures of a gun, specifically of appellant holding the gun that came into Day's possession on July 24, 2017. Day knew appellant was a felon at the time he obtained the photos because Day had "had a run-in or two with him in the past."
On the same date, Day also received a call from another police officer subsequent to that encounter asserting possession of a gun that "supposedly involved" appellant. Day took possession of the gun, which was a loaded Mossberg 702 Plinkster, a rifle. He went on to testify that the overall length of the gun was too short by about eight inches and the barrel was too short by about twelve inches. Accordingly, the gun was illegal for anyone to possess, whether a convicted felon or not.
Bobby Hicks, appellant's parole officer, testified that appellant "paroled out back in November, 2016" and was assigned to his caseload as a maximum-supervision case. He agreed that is was "fair to say that [appellant had] been a convicted felon for years"-"at least the last ten years"-and stated, after looking at the seven photos, that "the person depicted in those pictures appear[ed] to be [appellant]"; at least in six of the seven photos since he could not see the person's face in one picture. Appellant had been incarcerated since July 26, 2017; however, he could have had access to social media via a contraband cellular phone.
Mike Allen, owner of El Dorado Tire Service, testified to seeing a "lanyard clip or something sticking out from under [Allen's] portable building" and discovered upon use of a flashlight that it was a "little cut up .22 rifle under there." He noted that there was "always people stashing stuff back there." He told his workers that a gun had been "stashed" back there and they came to where he was, though they did not "mess with" the gun. At that time, appellant walked by and Allen "jokingly" asked if appellant had lost his gun, to which appellant replied "Yeah, I did, dude. I need to snag that." When appellant came toward Allen and his workers to retrieve the gun, one of his workers stopped him. Appellant then turned and walked away in the direction from which he had come; then he ran. Allen called the police. Allen was present when the officers unloaded the gun; it had a magazine and one shell in the chamber.
Chris Cass, one of Allen's employees, testified to being present when appellant walked by; he was the person who stopped appellant from retrieving the gun. He too was present when the officer unloaded the gun seeing a shell in the chamber and mud in the barrel.
Following Cass's testimony, appellee rested, and appellant moved for a directed verdict due to appellee's alleged failure to prove that appellant controlled or possessed the weapon on the asserted date. The motion was denied. Appellant then rested his case without putting on any additional evidence and renewed his directed-verdict motion, which was again denied.
The circuit court then found appellant guilty of possession of a firearm by certain persons and criminal use of prohibited weapons. It sentenced appellant to eleven years' imprisonment in the Arkansas Department of Correction on each charge, to run concurrently, plus court costs and fees. A sentencing order reflecting the same was entered on December 6, 2017. This timely appeal followed.
On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. When a defendant challenges the sufficiency of the evidence that led to a conviction, the evidence is viewed in the light most favorable to the State. Only evidence supporting the verdict will be considered.
Arkansas Code Annotated section 5-73-103(a)(1) states, in relevant part, that subject to certain limitations that are not applicable in this case, no person shall possess or own a firearm who has been convicted of a felony. A person commits the offense of criminal use of prohibited weapons if, except as authorized by law and where pertinent here, he or she uses, possesses, makes, repairs, sells, or otherwise deals in any sawed-off shotgun or rifle. "Possess" means to exercise actual dominion, control, or management over a tangible object. The State does not have to prove that the defendant physically held the contraband. Constructive possession, which is the control or right to control the contraband, is sufficient. Constructive possession may be established by circumstantial evidence, but when such evidence alone is relied on for conviction, it must indicate guilt and exclude every other reasonable hypothesis. Furthermore, this court has stated the following regarding constructive possession:
Constructive possession may be implied when the contraband is in joint control of the defendant and another person. To prove constructive possession, the State must establish that the defendant exercised "care, control, and management over the contraband." There must be some evidence that the accused had knowledge of the presence of the contraband. The defendant's control over and knowledge of the contraband can be inferred from the circumstances, such as the proximity of the contraband to the accused, the fact that it is in plain view, the ownership of the property where the contraband is found, and the accused's suspicious behavior. Location of the contraband in close proximity to the defendant has been held to be a sufficient linking factor to support a constructive possession conviction. The Arkansas Supreme Court has also considered the improbability that anyone other than the defendant placed the contraband in the location and the improbable nature of the defendant's explanations.[ ]
We do not weigh the evidence presented at trial, as that is a matter for the fact-finder. Witness credibility is an issue for the fact-finder, who is free to believe all or a portion of any witness's testimony and whose duty it is to resolve questions of conflicting testimony and inconsistent evidence. Because a criminal defendant's intent can seldom be proved by direct evidence, it must usually be inferred from the circumstances surrounding the crime. The fact-finder need not lay aside its common sense in evaluating the ordinary affairs of life and may consider and give weight to any false, improbable, and contradictory statements made by the defendant to explain suspicious circumstances when determining criminal knowledge and intent.
Keeping in mind our standard of review, we do not consider the evidence that does not support the conviction. Evidence that would tend to support a different conclusion is not to be considered.
The evidence before the circuit court included pictures of appellant holding what appeared to be the same gun found by Allen; the same gun Allen testified to appellant attempting to retrieve before being stopped by Cass. The gun had a lanyard clip of some sort attached to it and there was witness testimony that the jacket appellant had on at the time he attempted to retrieve the gun had the mate to the clip attached to the gun. The pictured gun appeared to have gold paint on it just as did the gun appellant tried to retrieve, which was recovered by Day. Appellant was wearing red sweatpants at the time he tried to retrieve the gun and one of the photos showed a person who appeared to be appellant wearing red sweatpants while holding the gun. Furthermore, it is clear that the gun is a cutdown rifle, which is illegal.
The evidence before the court, though circumstantial, shows that appellant took a picture holding the gun on the same day that he attempted to retrieve the apparently temporarily discarded and illegally cutdown rifle. Accordingly, we find no error with the circuit court's finding that appellee's circumstantial evidence proved its case nor do we find any error with its finding that the circumstantial evidence was inconsistent with any other reasonable alternative. We affirm.
Affirmed.
Gruber, C.J., and Hixson, J., agree.
An amended sentencing order was entered on December 15, 2017, and a second amended sentencing order was entered on January 11, 2018, removing the habitual-offender charge.
Magness v. State , 2012 Ark. App. 609, at 7, 424 S.W.3d 395, 401 (citing Sims v. State , 2012 Ark. App. 472, 2012 WL 4009602 ).
Green v. State , 2018 Ark. App. 145, at 6, 544 S.W.3d 574, 578 (citing Crews v. State , 2017 Ark. App. 670, at 5, 536 S.W.3d 182, 186 ).
Magness , supra .
Green, supra .
Id.
Green , 2018 Ark. App. 145, at 9, 544 S.W.3d at 579-80 (citing Ark. Code Ann. § 5-73-103(a)(1) (Repl. 2016) ).
Ark. Code Ann. § 5-73-104(a)(3).
Green , 2018 Ark. App. 145, at 9, 544 S.W.3d at 580 (citing Ark. Code Ann. § 5-1-102(15) (Repl. 2013) ).
Robinson v. State , 2017 Ark. App. 689, at 4, 537 S.W.3d 765, 768 (citing Gill v. State , 2017 Ark. App. 22, 511 S.W.3d 865 ).
Id.
Id. at 5, 537 S.W.3d at 768 (citing White v. State , 2014 Ark. App. 587, 446 S.W.3d 193 ).
Block v. State , 2015 Ark. App. 83, at 5-6, 455 S.W.3d 336, 340 (internal citations omitted).
Scott v. State , 2015 Ark. App. 504, at 5, 471 S.W.3d 236, 239 (citing Freeman v. State , 331 Ark. 130, 133, 959 S.W.2d 400, 401 (1998) ).
Clark v. State , 2015 Ark. App. 679, at 3, 477 S.W.3d 544, 547 (citing Steele v. State , 2014 Ark. App. 257, at 6, 434 S.W.3d 424, 429 ).
Id. at 3-4, 477 S.W.3d at 547 (citing Feuget v. State , 2012 Ark. App. 182, 394 S.W.3d 310 ).
Worsham v. State , 2017 Ark. App. 702, at 7, 537 S.W.3d 789, 794 (citing Hoodenpyle v. State , 2013 Ark. App. 375, at 9, 428 S.W.3d at 552-53 (citing Hicks v. State , 2012 Ark. App. 667, 2012 WL 5949103 ) ).
Baltimore v. State , 2017 Ark. App. 622, at 6-7, 535 S.W.3d 286, 290 (citing Harris v. State , 2010 Ark. App. 123, at 4, 2010 WL 475351 ).
Id.
Said picture was from behind, but in profile. | [
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ROBIN F. WYNNE, Associate Justice
Dennis Milligan, as Arkansas Treasurer of State, has filed an interlocutory appeal from an order of the Pulaski County Circuit Court denying his motion to dismiss a claim under the Arkansas Whistle-Blower Act (AWBA) as barred by the state's sovereign immunity. This court's jurisdiction arises under Rule 2(a)(10) of the Arkansas Rule of Appellate Procedure-Civil (2017). Because the complaint is barred by the state's sovereign immunity, we reverse the order denying the motion to dismiss and dismiss the complaint.
David Singer, who had worked as the assistant for legislative affairs and communications in the treasurer's office prior to his termination, filed a defamation suit against Jim Harris, Milligan's chief of staff in 2015. Singer subsequently filed a supplemental complaint that added Milligan as a defendant in his individual and official capacities, added new claims, and sought monetary damages. Because the supplemental complaint raised issues of federal law, Milligan successfully moved to have the case removed to federal court.
While the case in federal court was pending, Singer filed another complaint in the Pulaski County Circuit Court seeking relief for defamatory statements and alleging a violation of the AWBA. The complaint named Milligan and Harris individually and in their official capacities. The complaint alleged that Harris had made defamatory statements about Singer with Milligan's approval, and that Singer was terminated after he reported concerns about misuse of public funds and violations of campaign laws. Milligan answered the complaint and alleged that the complaint was barred by sovereign immunity.
In June 2017, Singer filed a second amended complaint alleging a violation of the AWBA. The only defendant named in the complaint was Milligan in his official capacity. In the complaint, Singer sought lost wages, front pay or reinstatement, lost earnings, attorney's fees, and costs. Milligan filed a motion to dismiss the second amended complaint. In the motion, Milligan alleged that the complaint was barred by sovereign immunity and that it failed to state a claim for relief and was subject to dismissal under Rule 12(b)(6) of the Arkansas Rules of Civil Procedure. The trial court entered an order finding that the complaint was not barred by sovereign immunity and denying the motion to dismiss. This interlocutory appeal followed.
Article 5, § 20 of the Arkansas Constitution provides that the "State of Arkansas shall never be made defendant in any of her courts." Whether a party is immune from suit is purely a question of law and is reviewed de novo. City of Little Rock v. Yang , 2017 Ark. 18, 509 S.W.3d 632.
This court previously considered a motion to dismiss on grounds of sovereign immunity in a suit under the AWBA in Arkansas Community Correction v. Barnes , 2018 Ark. 122, 542 S.W.3d 841. In that case, Barnes had filed a suit alleging a violation of the AWBA. Arkansas Community Correction moved to dismiss, alleging that the complaint was barred by sovereign immunity. The motion to dismiss was denied. On appeal, this court reversed the order denying the motion to dismiss and dismissed the complaint, holding that the purported legislative waiver of the state's sovereign immunity in the AWBA is unconstitutional, pursuant to the holding in Board of Trustees v. Andrews , 2018 Ark. 12, 535 S.W.3d 616.
Singer asserts in his responsive brief that Milligan waived jurisdiction by admitting the trial court had jurisdiction over the subject matter and the parties in his answer to the initial complaint. However, Milligan asserted that the claim was barred by sovereign immunity in his motion to dismiss, which was his initial pleading after the second amended complaint was filed. His averments as to jurisdiction in his previous answers are of no moment and, in any event, he raised the issue of sovereign immunity in those pleadings as well. Singer also argues that the governor waived sovereign immunity for the executive branch by signing the AWBA into law. The governor does not enact legislation. That is the function of the legislature, which we have expressly held cannot waive the state's immunity. The governor's signature does not act as evidence of agreement with the legislation; it is instead a fulfillment of the duties of office under our system of checks and balances. Singer's argument lacks merit.
Singer contends that Andrews and Barnes were wrongly decided because the provision in article 2, § 13 stating that "every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property, or character" takes precedence over article 5, § 20. In Bryant v. Arkansas State Highway Commission , 233 Ark. 41, 342 S.W.2d 415 (1961), this court considered an argument that article 5, § 20 must give way to article 2, § 13 and squarely rejected it:
The framers of the constitution certainly knew that instances of hardship would result from the prohibition of suits against the State, but they nevertheless elected to write that immunity into the constitution. The language is too plain to be misunderstood, and it is our duty to give effect to it. The appellants' argument, carried to its logical end, would completely destroy the State's immunity from suit, for it could be argued in every case that to exempt the State from a coercive proceeding would be to deny the plaintiff a certain remedy for an injury he had supposedly suffered.
233 Ark. at 44, 342 S.W.2d at 417
In recognition of the state's constitutional sovereign immunity, the legislature created the Arkansas State Claims Commission to provide a method by which claims against the state may be addressed while preserving the state's sovereign immunity. See Ark. Pub. Def. Comm'n v. Greene Cty. Cir. Ct. , 343 Ark. 49, 32 S.W.3d 470 (2000). Singer admits that he can make a claim before the Commission, but he contends that this remedy is inadequate because the Commission has no authority to enjoin a party from engaging in acts that are ultra vires, in bad faith, or arbitrary. But Singer is seeking damages against Milligan, not injunctive relief, rendering his argument inapplicable here.
Finally, Singer contends that sovereign immunity does not apply because the State of Arkansas is not a named defendant. Singer sought damages against Milligan under the AWBA in a complaint that named Milligan solely in his official capacity. A suit against a state official in his or her official capacity is not a suit against that person; rather, it is a suit against that official's office. Short v. Westark Cmty. Coll. , 347 Ark. 497, 65 S.W.3d 440 (2002). As an award of damages in this case would subject the state to liability, the sovereign immunity granted to the state in the Arkansas Constitution applies.
Pursuant to our decision in Barnes , the legislature's attempt to waive that immunity in the AWBA is unconstitutional. Further, none of Singer's arguments against the application of the holding in Andrews , and by extension Barnes , have merit. Accordingly, we reverse the order denying Milligan's motion to dismiss and dismiss the complaint. Because the complaint is barred by sovereign immunity, it is unnecessary to consider Milligan's alternate contention that the complaint fails to state a claim for relief.
Reversed and dismissed.
Baker and Hart, JJ., dissent. | [
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BART F. VIRDEN, Judge
David Brennan challenges the White County Circuit Court's order dismissing his request for declaratory judgment regarding the constitutionality of the White County ordinance prohibiting the manufacture and sale of alcohol and the "local-option" set forth in Arkansas Code Annotated sections 3-8-801 to -811. We affirm.
I. Relevant Facts
On September 11, 2017, Brennan filed a complaint in the White County Circuit Court requesting that the court determine the constitutionality of the local-option framework allowing White County citizens to vote to prohibit the manufacture and sale of alcoholic beverages. In his complaint, Brennan asserted that the local-option framework is unconstitutional on its face and violates his substantive due-process rights; namely, his right to contract and association. Brennan, who lives in Searcy, asserted that he wishes to apply for a liquor license and open a package store in his home town, that he wants to consume alcohol at restaurants in Searcy, and that he would like the option to purchase alcohol at stores without having to travel outside his county. Brennan contended that prohibition of the sale of alcohol in White County negatively affects his ability to safely travel along the county highways, and he suffers an "unnecessarily increased risk of being involved in an alcohol-related, fatal crash." Brennan also argued that in dry counties, drug-related crime constitutes a greater threat to the public than in counties where the sale of alcohol is legal.
White County filed a motion to dismiss Brennan's complaint, arguing that the local-option framework is constitutional as a matter of law. Brennan responded to the motion to dismiss, contending that there is no governmental purpose furthered by the local-option framework. Brennan urged the circuit court to apply the heightened level of scrutiny provided for in the Arkansas Constitution to determine the constitutionality of the statutes. White County countered Brennan's argument by explaining the myriad government interests served by the local-option laws, including the promotion of public health, reduction in crime and related law-enforcement costs, increase in worker productivity, and reduction of health-care costs. White County also asserted that under either the Arkansas Constitution or the federal Constitution, the rational-basis test is the appropriate test for ascertaining the constitutionality of the statutes.
On April 24, 2018, the circuit court entered an order dismissing Brennan's complaint. The circuit court determined that White County's local-option ordinance and the statutory framework allowing the local option are subject to the rational-basis test under the due-process provisions of both the Arkansas Constitution and the U.S. Constitution and that the local-option framework is constitutional as a matter of law. Brennan timely filed his notice of appeal.
On appeal, Brennan asserts that both the statutory local-option framework and the local prohibition of alcohol sales in White County violate citizens' "rights of contract and association" and "the right to engage in otherwise legal business activities and relations[.]" He argues that no legitimate state interest is furthered by these laws and that police power may not be used to impose the "majority morality" on those whose conduct does not harm others. Brennan also asserts that the Arkansas Constitution requires a heightened level of scrutiny for the state's use of police power.
Alternatively, Brennan argues that if this court decides there is a legitimate state interest involved here, the local-option framework is an arbitrary and ineffective way of advancing those interests; thus, the framework is unconstitutional. Lastly, Brennan contends that subsequently enacted legislation fundamentally conflicts with the local-option framework, rendering the local option "the quintessence of irrational." We affirm.
II. Standard of Review
This court reviews a circuit court's decision to grant a motion to dismiss pursuant to Arkansas Rule of Civil Procedure 12(b)(6) by treating the facts alleged in the complaint as true and by viewing them in the light most favorable to the plaintiff. Archer v. Sigma Tau Gamma Alpha Epsilon, Inc. , 2010 Ark. 8, at 4, 362 S.W.3d 303, 306. In viewing the facts in the light most favorable to the plaintiff, the facts should be liberally construed in the plaintiff's favor. Id. Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id.
III. Points on Appeal
A. The Rational-Basis Test
First, we address Brennan's assertion that the circuit court erred in finding that the rational-basis test is the correct test to determine the constitutionality of the local-option framework. Brennan urges this court to perform its analysis under a heightened level of scrutiny; however, his argument is not well taken, and we hold that the rational-basis test applies here.
Brennan contends that Arkansas law requires that "legislation must bear a real or substantial relationship to the protection of public health, safety and welfare, in order that personal rights and property rights not be subjected to arbitrary or oppressive, rather than reasonable invasion." Brennan likens this case to Jegley v. Picado , 349 Ark. 600, 80 S.W.3d 332 (2002), in which our supreme court struck down the sodomy statute as unconstitutional and held that by burdening certain sexual conduct between members of same sex, the statute infringed on the fundamental right to privacy guaranteed under State Constitution. The instant case is distinguishable from Picado because here, no fundamental rights are at stake. In Yarbrough v. Beardon , 206 Ark. 553, 177 S.W.2d 38 (1944), our supreme court held that local-option elections are not an unconstitutional delegation of executive or legislative authority, and liquor-license holders are not deprived of any fundamental right by the local option because holding a liquor license is a privilege-not a fundamental property right. More recently, in Shannon v. Wilson , 329 Ark. 143, 158, 947 S.W.2d 349, 357 (1997), our supreme court held, "The legislature has enacted statutes which regulate the liquor industry. Foremost, our legislature has declared that holding a license to sell alcoholic beverages is a privilege, not a right. Ark. Code Ann. § 3-3-218(a) (Repl. 1996)." Indeed, Arkansas Code Annotated section 3-3-218(a) provides, "It is the specifically declared policy of the General Assembly that all licenses issued to establishments for the sale or dispensing of alcoholic beverages are privilege licenses[.]" No fundamental rights are at stake, and the circuit court did not err in finding that the rational-basis test is the appropriate test for evaluating the constitutionality of the local-option framework.
Another reason the rational-basis test is the correct approach here is that when a statute falls within the General Assembly's police powers to regulate an industry of general public interest, we apply the rational-basis test. McLane S., Inc. v. Davis , 366 Ark. 164, 167, 233 S.W.3d 674, 677 (2006). The states have the power to regulate alcohol pursuant to the Twenty-first Amendment which repealed prohibition and set forth that "[t]he transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." U.S. Const. amend. XXI. There is a presumption in favor of the validity of state regulation in the area of liquor control. California v. LaRue , 409 U.S. 109, 118-19, 93 S.Ct. 390, 34 L.Ed.2d 342, (1972). A state has broad power to regulate the times, places, and circumstances under which it will permit the sale of liquor. New York State Liquor Auth. v. Bellanca , 452 U.S. 714, 715, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981) (per curiam). The regulation of alcohol is of general public interest; thus, the rational-basis test is applicable here.
Under the rational-basis test, legislation is presumed constitutional and rationally related to achieving any legitimate governmental objective under any reasonably conceivable fact situation. Eady v. Lansford , 351 Ark. 249, 92 S.W.3d 57 (2002). Additionally, all statutes are presumed constitutional, and we resolve all doubts in favor of constitutionality. Ark. Tobacco Control Bd. v. Sitton , 357 Ark. 357, 166 S.W.3d 550 (2004). The party challenging a statute's constitutionality has the burden of proving that the act is unconstitutional. See id. It is not our role to discover the actual basis for the legislation. Ark. Hosp. Ass'n v. Ark. State Bd. of Pharm. , 297 Ark. 454, 763 S.W.2d 73 (1989). We merely consider whether there is any rational basis that demonstrates the possibility of a deliberate nexus with state objectives so that the legislation is not the product of arbitrary and capricious government purposes. Streight v. Ragland , 280 Ark. 206, 655 S.W.2d 459 (1983). If we determine that any rational basis exists, the statute will withstand the constitutional challenge. Ark. Hosp. Ass'n, supra.
B. Majority Morality
We now turn to Brennan's first argument that the local-option framework is unconstitutional because it serves no purpose other than to impose "majority morality" on the citizens of Arkansas. We disagree and affirm.
Brennan contends that "the reason and only purpose of the local option is to sate the desire of the local majorities to impose their morality on the whole of their populations while allowing the State to benefit from a considerable alcohol economy carried out by the less righteous." Again, Brennan compares the instant case to Picado . Brennan urges this court to determine, as it did in Picado , that there is no legitimate government interest furthered by the challenged statutes and that the only purpose served is to impose a "majority morality." Brennan's argument fails. In Picado , our supreme court recognized that there is no government interest furthered by regulating noncommercial, consensual sexual conduct and that the statute's criminalization of that conduct is an unconstitutional infringement on the right to privacy. However, the courts have long recognized the legitimate government interest in promoting the public health, safety, and welfare associated with the regulation of alcohol. Indeed, in Gipson v. Morley , 217 Ark. 560, 567, 233 S.W.2d 79, 83 (1950), our supreme court held that "it is within the competency of the legislature to determine under the police power what regulatory rules are needful in controlling a type of business fraught with perils to public peace, health and safety as is the liquor business."
The history of the legitimacy of the government interest in regulation of alcohol is not the issue, however. White County has no obligation to produce evidence to sustain the rationality of a statutory classification. See Heller v. Doe by Doe , 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). Rational-basis review in equal protection analysis "is not a license for courts to judge the wisdom, fairness, or logic of legislative choices." FCC v. Beach Commc'ns, Inc. , 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). The courts may not act as a superlegislature "to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines." New Orleans v. Dukes , 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976). Instead, the statute "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Beach Commc'ns , 508 U.S. at 313, 113 S.Ct. 2096. As White County states in its brief, the correlation between alcohol misuse and detrimental effects on a person's health is one of many rational bases for the local-option framework; thus, Brennan has failed to meet his burden of proving that the local-option framework is not rationally related to achieving any legitimate objective of state government under any reasonably conceivable state of facts.
C. Effectiveness of the Local-Option Framework
Brennan's second challenge to the local-option framework is his contention that it is ineffective at furthering the stated government interests of promoting public health, safety, and welfare; thus, the local-option framework is arbitrary and unconstitutional. Brennan cites to research and studies to support his argument that the local option is an ineffective means for promoting highway safety and the reduction of crime. Because the effectiveness of the legislation is not a factor in determining a statute's constitutionality, we affirm.
When reviewing statutes under the rational-basis test, the court must not "review the wisdom or rightness of the legislation" but must only determine if there is any reasonable basis to support it. Four Cty. (NW) Reg'l Solid Waste Mgmt. Dist. Bd. v. Sunray Servs., Inc. , 334 Ark. 118, 127, 971 S.W.2d 255, 260 (1998). As we discussed above, the promotion of public health is a reasonable basis for the existence of the local-option framework. Brennan presents a public-policy argument that the local-option framework does more harm than good when it comes to road safety and illegal-drug abuse; however, effectiveness of the statutes in furthering the government interest is immaterial to our analysis, and Brennan cites no persuasive authority to support his argument that arguably ineffectual legislation is unconstitutional. On this point, we affirm.
D. Acquired Irrationality Due to Subsequent Legislation
Lastly, Brennan argues that subsequent legislation, such as the local option to allow private clubs to serve alcohol within an otherwise dry county, has rendered the local-option framework meaningless; thus, there is no rational basis for the statutes, and they are unconstitutional. Brennan cites no authority to support his argument that subsequent legislation can undermine the constitutionality of previously enacted legislation. This court may refuse to consider an argument when appellant fails to cite any legal authority, and the failure to cite authority or make a convincing argument is sufficient reason for affirmance. Moody v. Moody , 2017 Ark. App. 582, at 12, 533 S.W.3d 152, 160. Moreover, as White County explains, the local-option statutes and the exemption for private clubs set forth in Arkansas Code Annotated section 3-9-221 can be read in harmony. Section 3-9-221 provides that the private-club exemption in dry counties furthers the state interest in promoting economic development and tourism by allowing the sale of alcoholic beverages by the individual drink at private clubs. The counties that opt to remain dry may decide to prohibit alcohol sales at liquor stores, convenience stores, grocery stores, and any other establishment where alcohol may legally be sold; thus, the private-club exemption does not render the local-option framework irrational or unconstitutional.
Affirmed.
Abramson and Hixson, JJ., agree.
Brennan cites to multiple cases in which our supreme court evaluates the constitutionality of various statutes at a heightened level of scrutiny. Each of the cases he cites are distinguishable because they involve a fundamental right that is curtailed in some way by the enacted legislation. See Craighead Elec. Coop. Corp. v. Craighead Cty. , 352 Ark. 76, 98 S.W.3d 414 (2003) (interaction of utility easement and private-property rights); Hand v. H & R Block, Inc. , 258 Ark. 774, 781, 528 S.W.2d 916, 920 (1975) (property rights in franchise name); Beaty v. Humphrey , 195 Ark. 1008, 115 S.W.2d 559 (1938) (property rights of barbers).
Brennan asserts that voter-enacted "initiatives and referenda are inconsistent with the republic form of government-because, lacking the standards and controls of a deliberative legislative body, they offer no protections against a tyranny of the majority." Brennan offers no persuasive authority for his argument, and again he cites us to a case in which fundamental rights are at stake, and the voter-enacted initiative directly violates constitutional principles. See Hunter v. Erickson , 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969) (implementation of a racially discriminatory city ordinance through popular referendum did not immunize it from constitutional challenge). He also cites to City of Eastlake v. Forest City Enterprises, Inc. , 426 U.S. 668, 679, 96 S.Ct. 2358, 49 L.Ed.2d 132 (1976), in which the Supreme Court held, "As a basic instrument of democratic government, the referendum process does not, in itself, violate the Due Process Clause of the Fourteenth Amendment when applied to a rezoning ordinance." Brennan's argument that voter-enacted initiatives require a heightened level of scrutiny is unsupported and unpersuasive. | [
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RITA W. GRUBER, Chief Judge
Pro se appellant Randolph Cooper appeals from an order granting summary judgment in favor of appellee Discover Bank (Discover) on its action to recover a balance due on a credit card account. Because we conclude that a genuine issue of material fact remains, we reverse and remand for further proceedings.
On August 22, 2016, Discover filed a complaint against Cooper seeking to recover the balance due on a credit card account. Attached to the complaint was the cardmember agreement and an affidavit of account indicating that Cooper's account was in default and had a balance due of $ 15,493.23. Two credit card statements were attached as exhibits to the affidavit-exhibit A was the last periodic statement sent by Discover and exhibit B was the current balance owed and included any activity since the last periodic statement.
Cooper was served with the summons and complaint on November 17, 2016. He filed an answer on December 13, 2016, denying the allegations and raising numerous affirmative defenses. In response to the allegation that he was a resident of Randolph County, Cooper denied the allegation and stated that he maintained a post office address in Maynard, Arkansas, but was homeless and sleeps in his vehicle.
Discover filed requests for admission, as well as interrogatories and requests for production of documents, on February 17, 2017; the certificate of service indicates that both were mailed on February 13, 2017, to the following address:
RANDOLPH C COOPERPO BOX 1 714 Cree TrlMaynard, AR 72444-0001
Discover filed a motion for summary judgment on November 9, 2017, alleging that (1) Cooper failed to respond to its requests for admission containing the allegations of the complaint; (2) the requests for admission are deemed admitted pursuant to Ark. R. Civ. P. 36 ; (3) the admissions taken together with the pleadings reveal there is no genuine issue as to any material fact; and (4) Discover is entitled to summary judgment.
Cooper filed a response to the motion for summary judgment on November 29, 2017. Cooper asserted the defense of lack of personal jurisdiction, stating that he was amending his answer to include this defense as he had reserved the right to amend his answer to assert additional defenses. He alleged that he was not a resident of Arkansas and did not own property, work, or do business in Arkansas. He denied the following: the genuineness of the cardmember agreement because it was unsigned and did not identify him as a party to the agreement and therefore did not comply with Ark. R. Civ. P. 10(d) ; the correctness of the affidavit of account in support of the complaint because it did not make a full accounting of items purportedly purchased by him; and that the requests for admission were properly served on him pursuant to Ark. R. Civ. P. 5(b)(2). Cooper attached his own affidavit in support of his response. In his response, Cooper also asked the court to dismiss the action and to strike the requests for admission because they were not properly served, and therefore, Discover's motion for summary judgment did not meet the threshold requirement under Ark. R. Civ. P. 56. Cooper also requested a hearing.
On November 29, 2017, shortly after Cooper filed his response, the trial court entered an order of summary judgment. The order provided that the requests for admission, which Cooper did not answer and were deemed admitted pursuant to Ark. R. Civ. P. 36, contained all the allegations of the complaint; that he was indebted to Discover in the amount of $ 15,493.23; and that Discover was entitled to judgment for that amount. Cooper filed a timely notice of appeal on December 21, 2017.
Cooper lists the following four points on appeal: (1) "Does the unsigned cardmember agreement and deficient Affidavit of Account satisfy Rule 10(d) [of the Arkansas Rules of Civil Procedure], and sufficiently make a prima facie case?"; (2) "Does Randolph County Circuit court lack jurisdiction of the person in this matter?"; (3) "Does Rule 36(a) [of the Arkansas Rules of Civil Procedure] operate when the requirements for service under Rule 5(b)(2) [of the Arkansas Rules of Civil Procedure] are not met?"; and (4) "Were procedural requirements and due process met?" The question before us is whether summary judgment was proper in this case.
Our standard of review for summary-judgment cases is well established. Anderson v. Mountain Crest, LLC v. Kimbro , 2018 Ark. App. 626, at 5, 567 S.W.3d 888, 890. Summary judgment should be granted only when there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Id. The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. Id. In reviewing a grant of a summary judgment, the appellate court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party left a material question of fact unanswered. Id. We view the evidence in the light most favorable to the party against whom the motion for summary judgment was filed and resolve all doubts and inferences against the moving party. Id.
In its complaint, Discover alleged that (1) it is an FDIC insured Delaware State Bank authorized to bring the action under Ark. Code Ann. § 4-27-1401 ; (2) Cooper is a resident of Randolph County, Arkansas; (3) jurisdiction and venue are proper; (4) Cooper purchased certain items with extensions of credit obtained on his Discover Card account; (5) the amount due is $ 15,493.23, which has been owed for a period of time; and (6) demand has been made and the balance remains unpaid. Discover attached an affidavit of account and the cardmember agreement to the complaint. The notarized affidavit of account was prepared by a litigation-support specialist for Discover and provides in part:
In addition, the same record-keeping systems contain information about which version of Discover Bank's terms and conditions have been communicated to an account holder and accepted by an account holder through the use of his or her Discover Card after receipt of the terms and condition. I have personally inspected the records pertaining to the account of the Cardmember(s), including the last periodic statement sent to the Cardmember(s) by DISCOVER PRODUCTS, INC., to ascertain the applicable terms and conditions, the balance due on said account and whether the Cardmembers have made payments on the balance.
The affiant provided the address that the statements were mailed to; stated that Cooper's account was in default; and attached the last periodic statement, as well as the current balance owed, which was $ 15,493.23.
In the requests for admission, Discover asked Cooper to admit that (1) he was a resident of Randolph County, Arkansas; (2) he purchased certain items and charged the same on the charge account at issue in the lawsuit; (3) the $ 15,493.23 amount due on the account had not been paid and had been owed by him for a period of time; (4) monthly billing statements/bills in regard to the account were sent to and received by him; (5) he never notified Discover of any dispute in regard to the account (balance); (6) he never notified Discover in writing of any complaints or requests to stop credit on the account; (7) he has no documentation to show that the balance for the account is less than $ 15,493.23; and (8) he is indebted to Discover in the amount of $ 15,493.23.
Discover filed a motion for summary judgment stating that the requests were not answered and were therefore deemed admitted under Ark. R. Civ. P. 36. However, Cooper argues on appeal, as he did in his response to the motion for summary judgment, that he was never served with the requests for admission, and he submitted an affidavit in support thereof.
According to the credit card statements provided by Discover, Cooper's address was "PO Box 1, Maynard, AR 72444-0001." Cooper listed this same address on his answer to the complaint. In addition, a July 26, 2016 letter from Cooper to Discover's counsel sent via certified mail lists this same address. Cooper sent another certified letter to Discover's counsel on March 13, 2017, informing counsel that his address had changed to PO Box 832, Poplar Bluff, MO 63902.
The motion for summary judgment filed November 9, 2017, was sent to the Missouri address. In his affidavit in response to the motion for summary judgment, Cooper states that he did not receive the requests for admission and first learned of them when he reviewed the circuit court's file after receiving the motion for summary judgment. Cooper's affidavit asserts that the certificate of service shows that the requests for admission were mailed to an incorrect address-"PO BOX 1 714 Cree Trl Maynard, AR 72444-0001."
In response to Cooper's arguments on appeal, Discover contends that under Ark. R. Civ. P. 5(b)(2) service by mail is presumptively complete upon mailing and that it had mailed the requests to the correct address. However, contrary to Discover's assertion, there is no finding by the trial court that Cooper was served with the requests for admission. Discover further argues that Cooper did not overcome the presumption of service, stating that implicit in the court's decision is a finding that the requests were properly served on Cooper. We disagree. The order merely states that the requests were "submitted" to Cooper.
Because the order was entered shortly after Cooper's response was filed, we are not convinced that the trial court had the benefit of considering this argument regarding service of the requests for admission. In any event, the court did not make a specific finding that Cooper had been served with the requests for admission that he specifically denied receiving in his affidavit. Here, the order itself indicates that the trial court signed it on November 17, 2017, twelve days before Cooper filed his response on November 29, 2017. The order was filed on November 29, 2017, shortly after Cooper's response was filed and prior to the expiration of the time allowed for Cooper to file his response or for Discover to file a reply under Ark. R. Civ. P. 56. Based on the facts before us, we hold that a question of fact remains; therefore, summary judgment was improper.
In light of our disposition reversing and remanding this case, we do not address Cooper's remaining arguments.
Reversed and remanded.
Whiteaker and Vaught, JJ., agree.
Cooper requested a hearing at the end of his response, stating "If at this juncture, the Court does not rule to dismiss ... then pursuant to Rule 78, Mr. Cooper requests a hearing of the matter to be set after the time for reply has expired." On a motion for summary judgment, Rule 56 allows for a hearing, but one is not required prior to entry of an order.
The order, a copy of which was sent to the trial court along with the motion for summary judgment, was signed and dated by the trial court on November 17, 2017, prior to receiving Cooper's response.
Discover suggests in its brief that the address listed on the certificate of service is correct because that was the address for Cooper on whitepages.com. This fact is not in the record, and we do not consider it on appeal. | [
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KENNETH S. HIXSON, Judge
Appellant Dustin Kampmann pleaded guilty to possession of a controlled substance with intent to deliver, and on December 15, 2016, the trial court entered a sentencing order placing Kampmann on six years' probation. Kampmann's written conditions of probation prohibited him from committing a criminal offense punishable by imprisonment and from using any controlled substance.
On December 1, 2017, the State filed a motion to revoke Kampmann's probation, alleging that he had violated his conditions by possessing drug paraphernalia on October 18, 2017, and by admitting to using marijuana and Xanax on October 25, 2017. After a revocation hearing, the trial court found that Kampmann violated his conditions by possessing drug paraphernalia. On June 20, 2018, the trial court entered a sentencing order revoking Kampmann's probation and sentencing him to four years in prison. Kampmann now appeals from the revocation of his probation.
Pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Arkansas Supreme Court Rule 4-3(k)(1), Kampmann's counsel has filed a no-merit brief wherein counsel asserts that this appeal is without merit. Kampmann's counsel's abstract, brief, and addendum contain all the adverse rulings and an explanation as to why each ruling is not a meritorious ground for reversal. Kampmann's counsel has also filed a motion to be relieved. Kampmann was provided a copy of his counsel's brief and notified of his right to file a list of pro se points for reversal, but he has filed no points. Having reviewed the record before us, we conclude that this appeal is without merit and, we affirm the revocation.
Kampmann's probation officer, Paul Clifford, was the only witness to testify at the revocation hearing. Mr. Clifford testified that on October 18, 2017, he and other officers conducted a random search of Kampmann's residence where he lived with his grandmother. When Mr. Clifford arrived at the residence he made contact with Kampmann's grandmother, who was also on probation. According to Mr. Clifford, he observed Kampmann exit a back bedroom at the end of the hallway.
When Kampmann came out of the bedroom, Mr. Clifford immediately detected an odor of marijuana. Mr. Clifford asked Kampmann which room was his, and Kampmann stated that his bedroom was the room he had just exited. Mr. Clifford searched Kampmann's bedroom and found a glass smoking device, which in his experience is commonly used for inhaling methamphetamine. The officers also found a cut straw in Kampmann's bedroom. These items were sent to the Arkansas State Crime Lab, and the straw tested positive for methamphetamine residue. Mr. Clifford stated that there were no other persons in Kampmann's bedroom when he came out. Kampmann told Mr. Clifford that some friends had been over and must have left the items in his room. On cross-examination, Mr. Clifford testified that during an October 25, 2017 probation visit, Kampmann admitting to using marijuana and Xanax. At the conclusion of the hearing, the trial court found that Kampmann violated his conditions of probation by possessing the smoking device and the straw.
In this no-merit appeal, Kampmann's counsel accurately states that the only adverse ruling below was the trial court's decision to revoke Kampmann's probation. A trial court may revoke a defendant's probation if it finds by a preponderance of the evidence that the defendant has violated a condition of the probation. Atteberry v. State , 2016 Ark. App. 331, 2016 WL 3563254. The State bears the burden of proof, but it need only prove that the defendant committed one violation of the conditions. Lewis v. State , 2015 Ark. App. 222, 2015 WL 1598103. Evidence that is insufficient to support a criminal conviction may be sufficient to support a revocation of probation. Richard v. State , 2018 Ark. App. 362, 553 S.W.3d 783. On appeal, the trial court's decision will not be reversed unless it is clearly against the preponderance of the evidence. Mosley v. State , 2016 Ark. App. 353, 499 S.W.3d 226.
In Kampmann's counsel's brief, he correctly asserts that there can be no meritorious challenge to the sufficiency of the evidence supporting the revocation. The trial court found that Kampmann possessed drug paraphernalia in violation of his conditions of probation. Arkansas Code Annotated section 5-64-443(a) (Supp. 2017) makes it illegal for a person to possess drug paraphernalia with the purpose to use the drug paraphernalia to ingest, inhale, or otherwise introduce into the human body a controlled substance. The definition of "drug paraphernalia" includes an object intended for use in ingesting, inhaling, or otherwise introducing a controlled substance into the human body. Ark. Code Ann. § 5-64-401(12)(B)(xii) (Repl. 2016).
During the search of Kampmann's residence, officers found a glass smoking device and a cut straw. Mr. Clifford testified that in his experience the glass smoking device was commonly used to inhale methamphetamine. The cut straw contained methamphetamine residue. The State established that these were items of drug paraphernalia intended for use to ingest a controlled substance.
Although Kampmann was not in physical possession of the drug paraphernalia, the State does not have to prove that the defendant physically held the contraband. Conley v. State , 2014 Ark. 172, 433 S.W.3d 234. Constructive possession, which is the control or right to control the contraband, is sufficient. Id. Constructive possession can be implied when the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Id. Here, the officers found the drug paraphernalia in Kampmann's bedroom, which was solely occupied by him when the officers entered the residence. This was sufficient to establish that Kampmann controlled the contraband. On this record, we conclude that the trial court did not clearly err in revoking Kampmann's probation and that there could be no meritorious argument to the contrary on appeal.
Based on our review of the record and the brief presented, we conclude that there has been compliance with Rule 4-3(k)(1) and that this appeal is without merit. Consequently, Kampmann's counsel's motion to be relieved is granted, and the revocation is affirmed.
Affirmed; motion to be relieved granted.
Abramson and Virden, JJ., agree. | [
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LARRY D. VAUGHT, Judge
Eric Smith appeals his conviction by the Arkansas County Circuit Court of rape and sexual indecency with a child. He has appealed the sexual-indecency conviction, arguing that the circuit court erred in denying his motion to dismiss because the amended information failed to provide sufficient notice of the allegations against him. We disagree and affirm.
Smith was accused by his girlfriend's two young daughters of touching them inappropriately and engaging in anal and oral sex with the younger daughter, age eight. The State filed an information on October 20, 2015, and filed an amended information on January 25, 2017, which alleged that Smith committed the offense of sexual indecency with a child in violation of Arkansas Code Annotated section 5-14-110 (Supp. 2017) when he
unlawfully and feloniously on or about May 27 and May 28, 2015 being eighteen (18) years of age or older, the person solicits another person who is less than fifteen (15) years of age or older, or who is represented to be less than fifteen (15) years of age to engage in sexual intercourse with the purpose to arouse or gratify a sexual desire of himself or herself or a sexual desire of another person, the person purposely exposes his or her sex organs to another person who is less than fifteen (15) years of age.
At trial, the State presented evidence that Smith exposed his penis to both girls but no evidence that Smith solicited either child for sex. At the close of the State's case, Smith's counsel moved to dismiss, arguing that the State had charged Smith with violating subsection 5-14-110(a)(1), which prohibits soliciting a minor for sexual intercourse, deviate sexual activity, or sexual contact and that the State had introduced no evidence of solicitation. In response, the State argued that the information, while imprecise, also contained allegations that Smith had violated subsection (a)(2)(A) of the statute, which prohibits exposing one's genitals to a child for the purpose of sexual gratification. Ark. Code Ann. § 5-14-110(a)(2)(A). Smith argued that the State's amended information failed to properly notify him of the allegations against him and that he was prejudiced because he had been unable to prepare a defense to the exposure allegation. The court denied the motion and convicted Smith. This appeal follows.
Smith's challenge to the sufficiency of the information is not preserved for our review. Arkansas law allows a defendant to request a bill of particulars setting out the act or acts relied on by the State, and we have unequivocally held that "the proper time to object to the sufficiency of the information was before the trial." Barnes v. State , 94 Ark. App. 321, 325-26, 230 S.W.3d 311, 315 (2006) (citing Meny v. State , 314 Ark. 158, 861 S.W.2d 303 (1993) ). In Barnes , we held that a similar challenge to the sufficiency of the information was not preserved for appeal because Barnes failed to raise it before trial. So, too, must we hold that Smith's argument is not preserved here.
We also note that Smith's argument is meritless on its face. Pursuant to Arkansas law, an information need only allege that the defendant committed a named offense and it is not necessary to include a statement of the act or acts constituting the offense unless the offense cannot be charged without it. Ark. Code Ann. § 16-85-403(a)(1) (Supp. 2017). The amended information alleged that Smith had violated both parts of the sexual-indecency statute by (1) soliciting a minor for sex and (2) exposing his genitals to a minor. The fact that the State then presented proof to support the exposure allegation did not render the information inaccurate or misleading. In Barnes , we explained that "[w]e regard the additional language in the information as being in the nature of explanatory text that was superfluous and did not make it fatally defective such as to warrant reversal." 94 Ark. App. at 325-26, 230 S.W.3d at 315 (citing Richard v. State , 286 Ark. 410, 691 S.W.2d 872 (1985) ; Jones v. State , 275 Ark. 12, 627 S.W.2d 6 (1982) ; Baker v. State , 200 Ark. 688, 140 S.W.2d 1008 (1940) ). Moreover, Smith has not demonstrated prejudice as required in order to obtain relief on appeal. Meny , 314 Ark. 158, 861 S.W.2d 303. Although Smith claimed prejudice in not being able to adequately prepare a defense, the amended information clearly put Smith on notice that he was accused of exposing his genitals to a child. He has not demonstrated how he would have proceeded differently at trial had the superfluous language not been included in the amended information.
Affirmed.
Gladwin and Glover, JJ., agree.
Smith has not appealed his rape conviction. | [
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KENNETH S. HIXSON, Judge
This domestic-relations appeal arises from long-running and contentious litigation between appellant J. David John (David) and appellee Megan Marie Bolinder (Megan). The only issue in this appeal involves attorney's fees. In an order entered on December 14, 2017, the trial court ordered David to pay Megan $ 29,140 in attorney's fees. David argues that the attorney's-fee award should be reversed in its entirety because the trial court lacked the authority to award them, and also because Megan's motion for attorney's fees was untimely. We affirm as modified.
David and Megan were never married but they share a son, Isaiah, who was born on March 12, 2010. On February 9, 2012, the trial court entered an order awarding primary custody of the child to Megan, while awarding David visitation and ordering him to pay child support. David appealed this initial award of custody, visitation, and child support, raising several issues on appeal. Megan cross-appealed, arguing that the trial court erred in its calculation of David's child support. In John v. Bolinder , 2013 Ark. App. 224, 2013 WL 1456713, we affirmed the direct appeal but reversed and remanded the cross-appeal with instructions for the trial court to use a different method to calculate David's child-support obligation.
On remand, the trial court entered an order that substantially increased David's child-support obligation. Additional litigation ensued, and more orders were entered. On December 9, 2013, the trial court entered an order of dismissal without prejudice, on David's motion, dismissing David's claims for change of custody and child support, or alternatively to modify visitation. On February 27, 2014, the trial court entered an order granting Megan's petition to modify David's visitation.
On November 26, 2014, David filed a motion for the release of Megan's medical records. On April 28, 2015, David filed a motion to modify child support and to modify visitation. Meanwhile, Megan had filed a motion for contempt against David. After a hearing on the motions, the trial court entered an order on June 30, 2015, denying David's request for the release of Megan's medical records and denying David's motion to modify visitation. David appealed from that order, but we dismissed the appeal for lack of a final order because David's motion to modify child support and Megan's contempt motion remained unresolved. See John v. Bolinder , 2016 Ark. App. 357, 498 S.W.3d 307.
After our dismissal, Megan's motion for contempt was denied. Megan was also awarded $ 2080 in attorney's fees, apparently in relation to her defense of David's motions for the release of her medical records and to modify child support and visitation. On September 29, 2016, David filed a motion to change custody, or alternatively expand visitation, and reduce child support.
Additional motions were filed, and more orders were entered. Relevant to this appeal, the trial court entered an order on February 2, 2017, denying David's motion for the trial court to recuse, and entered an order on June 23, 2017, denying David's petition to hold Megan in contempt.
On September 12, 2017, Megan filed a petition for attorney's fees, which is the motion precipitating the trial court's most recent attorney's-fee award and giving rise to this appeal. In that petition, Megan requested a total of $ 29,140 in attorney's fees, with the following specifics:
5. That the total amount of attorneys' fees billed to [Megan] by my firm on the matter of Motion for Change of Custody, Child Support, or Alternatively Modify Visitation filed August 12, 2013, is $ 10,680.00. That this sum includes 53.4 billable hours.
6. That the total amount of attorneys' fees billed to [Megan] by firm for responding to motions filed by [David] which were ultimately denied by the Court less a previous award of attorney's fees in the amount of $ 2,080.00 is $ 8,720.00. That this sum includes 54 billable hours.
6.[sic] That the total amount of attorneys' fees billed to [Megan] by my firm on the matter of Motion for Change of Custody and, Alternatively to Expand Visitation and Reduce Child support filed September 29, 2016, is $ 9,740.00. That this sum includes 48.7 billable hours.
7. That this Court has inherent discretion in awarding attorneys' fees in domestic relations cases.
8. In this case, [David] previously nonsuited the August 12, 2013 Motion for Change of Custody on December [9], 2013, approximately one month prior to the January 7, 2014 final hearing setting. On September 29, 2016, [David] then filed a Motion for Change of Custody and, Alternatively, to Expand Visitation and Reduce Child support, an action based upon or including the same claim against the same Defendant. He has now motioned the Court to Nonsuit this action as well - approximately one month prior to trial.
On October 3, 2017, David filed a response to Megan's petition for attorney's fees asking that it be denied.
On December 14, 2017, the trial court entered an order for nonsuit, granting David's motion to voluntarily nonsuit his motion to change custody, or alternatively expand visitation, and reduce child support. In that order, the trial court found that all claims of the parties had been adjudicated or dismissed.
Also on December 14, 2017, the trial court entered an order awarding Megan $ 29,140 in attorney's fees. In its order, the trial court stated that it examined Megan's petition for attorney's fees and weighed the Chrisco factors and David's financial position. The trial court also stated that it considered David's seemingly unlimited capacity to fund said litigation.
David now appeals from the trial court's December 14, 2017 order ordering him to pay $ 29,140 in attorney's fees. David argues that the trial court lacked authority to award these fees, and also argues that Megan's attorney's-fee petition was untimely.
Arkansas Rule of Civil Procedure 54(e)(2) provides that a motion for attorney's fees "must specify the judgment and the statute or rule entitling the moving party to the award." David argues that Megan's motion for attorney's fees was fatally flawed because it cited no statutory authority or rule entitling her to the fees. David acknowledges that Megan's petition did cite Rule 41, which pertains to dismissals of actions and was applicable to David's voluntary nonsuit of his most-recently-filed claims for a change of custody, or alternatively to expand visitation and reduce child support. However, David points out that although Rule 41 provides for an award of costs under certain circumstances, it contains no provision for attorney's fees. Thus, David claims that the trial court was without authority to award attorney's fees.
We reject David's argument that the trial court lacked the authority to award attorney's fees because the trial court had inherent power to award the fees independent of any statute or rule. In Megan's motion, she stated that the trial court has inherent discretion to award attorney's fees, and David conceded as much in his response to her motion. In Vice v. Vice , 2016 Ark. App. 504, 505 S.W.3d 719, we held that the trial court has inherent power to award attorney's fees in domestic-relations proceedings, and whether the trial court should award fees and the amount thereof are matters within the discretion of the trial court. In such cases, no statutory authority is required. Vice , supra ; see also Hudson v. Hudson , 2018 Ark. App. 379, 555 S.W.3d 902 (trial court in domestic-relations proceedings has inherent power to award attorney's fees independent of statute or rule).
Under this point, David does not contend that the trial court abused its discretion in awarding attorney's fees, nor does he argue that the amount awarded was an abuse of discretion. His only claim under this point is that the trial court had no authority to award any attorney's fees. Because the trial court had inherent authority to award attorney's fees based on our settled case law, David's argument is without merit.
David's remaining argument is that Megan's petition for attorney's fees was untimely. Rule 54(e) provides that "[u]nless otherwise provided by statute or other order of the court, the motion [for attorney's fees] must be filed and served no later than 14 days after entry of judgment." In this case Megan's petition for attorney's fees was filed on September 12, 2017, and the order for nonsuit granting David's motion to voluntarily nonsuit his motion to change custody, or alternatively expand visitation and reduce child support, was not entered until December 14, 2017. That being so, David argues that Megan's motion for attorney's fees as it relates to the order of nonsuit was not timely filed because it was filed too early and was not filed within fourteen days after entry of the judgment. David further argues that Megan's request for attorney's fees in her September 12, 2017 petition that related to the trial court's prior orders was untimely as to those orders because it was not filed within fourteen days of the prior orders. David cites two cases where the appellate court reversed attorney's-fee awards based on untimely petitions. Norman v. Norman , 347 Ark. 682, 66 S.W.3d 635 (2002) ; Morehouse v. Lawson , 90 Ark. App. 379, 206 S.W.3d 295 (2005).
We conclude that Megan's attorney's-fee petition was timely as to the $ 9740 in attorney's fees associated with the trial court's December 14, 2017 order of nonsuit. Rule 54(e) provides that the motion must be filed no later than fourteen days after entry of judgment. Thus, Megan had until December 28, 2017, to file her petition. Megan filed her petition on September 12, 2017, which was long before the deadline. David cites no authority for the proposition that an attorney's-fee petition filed prior to the judgment is untimely, and we hold that it is not.
We agree, however, with David's contention that Megan's September 12, 2017 petition was untimely as to the other attorney's fees she requested relating to prior proceedings in the case that that had been previously disposed of by the trial court. This is because her petition was not filed within fourteen days of those prior orders. In Morehouse , supra , we held, pursuant to our supreme court's holding in Norman , supra , that we were required to reverse the attorney's fees awarded in that case because the motion for fees was filed more than fourteen days after entry of the judgment.
In her fee petition, Megan asked for attorney's fees of $ 10,680 for services rendered in defense of David's motion for change of custody, child support, or alternatively modify visitation that was dismissed by the trial court on December 9, 2013. Megan also asked for attorney's fees of $ 8,720 for responding to other prior motions filed by David and ultimately denied by the trial court. These orders included a February 2, 2017 order denying David's motion for the trial court to recuse, and a June 23, 2017 order denying David's petition to hold Megan in contempt.
The trial court's order of dismissal entered on December 9, 2013, specifically provided that each party pay his or her own attorney's fees. Megan took no appeal from that order, nor did she file a motion for attorney's fees within fourteen days. The trial court's February 2, 2017 order provided that "Defendant's Motion for her Attorney's fees will be considered if submitted in a timely manner." The trial court's June 23, 2017 order provided that "counsel for the Defendant shall submit an Affidavit for her fees within ten (10) days of the entry of this order." Megan made no timely attorney's-fee motion from either of these orders. Because Megan's attorney's-fee petition was untimely as to these prior orders and directives of the trial court, the trial court erred in awarding attorney's fees related to these matters.
Because Megan's attorney's-fee petition was timely as to only the December 14, 2017 order for nonsuit, we affirm the award of $ 9740 associated with those claims. Because Megan's request for the remainder of the attorney's fees was untimely, those fees should not have been awarded. The trial court's order is affirmed as modified to reduce Megan's attorney's-fee award to $ 9740.
Affirmed as modified.
Gruber, C.J., and Brown, J., agree.
In that order, the trial court assessed $ 45,960 in attorney's fees against David. Those attorney's fees are not at issue in this appeal.
Chrisco v. Sun Indus., Inc. , 304 Ark. 227, 800 S.W.2d 717 (1990).
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