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RAYMOND R. ABRAMSON, Judge
Carol Scoles sustained compensable left-shoulder and ankle injuries on March 31, 2015, when, after her shirt got caught in the coil-winding machine on which she was working at Central Moloney, Inc., she was pulled into the machine. Central Moloney now appeals the opinion and order of the Arkansas Workers' Compensation Commission (Commission) that affirmed and adopted the November 16, 2017 opinion of the administrative law judge (ALJ). On appeal, Central Moloney argues that the Commission's findings are not supported by substantial evidence and should be reversed. We affirm.
After sustaining admittedly compensable injuries on March 31, Scoles was treated on April 1, 2015, by Dr. J. Alan Pollard, an orthopedic surgeon at Jefferson Regional Medical Center in Pine Bluff. Dr. Pollard performed surgery for Scoles's left-clavicle fracture and noted on April 20, 2015, that "the pt [patient] is unable to resume her regular-duty work at this time. There is no light-duty work available. The pt will remain off work at this time." Dr. Pollard also instructed Scoles to quit smoking, and although she cut back significantly, she never was able to completely quit smoking.
Subsequent testing indicated nonunion of the fracture. Dr. Pollard recommended bone-graft surgery, but it was not authorized by Central Moloney or its insurance carrier. Instead, Central Moloney arranged for an evaluation by Dr. Kirk Reynolds, an orthopedic surgeon in Little Rock, who agreed with Dr. Pollard's recommendation for bone-graft surgery but stated that he would not perform such a surgery unless and until Scoles had quit smoking entirely. Dr. Reynolds advised Scoles that it was 100 percent necessary that she cease nicotine use before this surgery.
On August 18, 2017, Dr. Pollard performed the surgery on Scoles. On appeal, Central Moloney contends the surgery was not reasonably necessary and related to the admitted compensable injuries of March 31, 2015, and that the corresponding temporary total-disability benefits should not have been awarded by either the ALJ or the Commission.
In appeals involving claims for workers' compensation, we view the evidence in the light most favorable to the Commission's decision and affirm the decision if it is supported by substantial evidence. Prock v. Bull Shoals Boat Landing , 2014 Ark. 93, 431 S.W.3d 858. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission but whether reasonable minds could reach the result found by the Commission. Id. Additionally, the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Id.
Thus, we are prohibited from determining the credibility and weight to be accorded to each witness's testimony, and we defer to the Commission's authority to disregard the testimony of any witness, even a claimant, as not credible. Wilson v. Smurfit Stone Container , 2009 Ark. App. 800, 373 S.W.3d 347. 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. Prock , supra .
On appeal, Central Moloney argues that the Commission's finding that the surgery performed by Dr. Pollard was reasonable and necessary and that the Commission's finding that Scoles remained in her healing period and was entitled to temporary total-disability benefits are not supported by substantial evidence of record. We disagree on both points and hold that the Commission's opinion in its entirety is supported by substantial evidence. What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Wright Contracting Co. v. Randall , 12 Ark. App 358, 676 S.W.2d 750 (1984). It is within the Commission's province to weigh all the medical evidence and to determine what is most credible. Minn. Mining & Mfg. v. Baker , 337 Ark. 94, 989 S.W.2d 151 (1999). The Commission has the authority to accept or reject a medical opinion and the authority to determine its probative value. Poulan Weed Eater v. Marshall , 79 Ark. App. 129, 84 S.W.3d 878 (2002).
The authority of the Commission to resolve conflicting evidence also extends to medical testimony. Swift-Eckrich, Inc. v. Brock , 63 Ark. App. 118, 975 S.W.2d 857 (1998). The Commission is entitled to review the basis for a doctor's opinion in deciding the weight and credibility of the opinion and medical evidence. Id. In this case, the Commission did just that: "In the present matter, the Full Commission finds that Dr. Pollard's recommendation for additional surgery was entitled to more evidentiary weight than Dr. Reynold[s]'s recommendation for delay of same."
When medical opinions conflict, the Commission may resolve the conflict in light of the record as a whole, and in that light, reach the result that accords with reason, justice, and common sense. Barksdale Lumber Co. v. McAnally , 262 Ark. 379, 557 S.W.2d 868 (1977). That is exactly what the Commission did in this case.
Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Johnson v. Abilities Unlimited, Inc. , 2009 Ark. App. 866, 372 S.W.3d 838. 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. Nat'l Transit Staffing, Inc. v. Norris , 2018 Ark. App. 229, 547 S.W.3d 730. 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) (Repl. 2012). The healing period continues until the employee is as far restored as the permanent character of the employee's injury will permit. Myers v. City of Rockport , 2015 Ark. App. 710, 479 S.W.3d 33.
In the instant case, the temporary total-disability award corresponds to the opinions of both doctors that Scoles has not reached maximum medical recovery. Central Moloney admits that it does not have any "light duty" work available for Scoles. In its opinion, the Commission found that "based on the evidence and the opinions of Dr. Pollard and Dr. Reynolds ... that the claimant remained within a healing period and was totally incapacitated from earning wages beginning August 16, 2016 [the date the respondents stopped paying temporary total-disability benefits] until a date yet to be determined." As noted above, a substantial basis exists if fair-minded persons could reach the same conclusion when considering the same facts. Crudup v. Regal Ware, Inc. , 341 Ark. 804, 20 S.W.3d 900 (2000). Here, fair-minded persons could most certainly reach the same conclusion; therefore, we must affirm.
Affirmed.
Virden and Hixson, JJ., agree. | [
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WAYMOND M. BROWN, Judge
Appellant appeals from the circuit court's order revoking his suspended imposition of sentence (SIS). On appeal, he argues that the circuit court erred when it revoked his SIS because it lacked subject-matter jurisdiction to do so. We affirm.
An information was filed in case number CR-2007-848 on September 17, 2007, charging appellant with two counts of sexual assault in the second degree, a class B felony; and two counts of sexual indecency with a child, a class D felony. Appellant's signed guilty plea to both counts of sexual assault in the second degree and one count of sexual indecency with a child was filed on March 10, 2008. , He faced five to twenty years' imprisonment on each of the sexual assault counts and up to six years' imprisonment on the sexual-indecency count. Also on March 10, 2008, the circuit court entered a judgment and commitment order sentencing appellant to sixty-six months' imprisonment in the Arkansas Department of Correction (ADC) with an additional sixty months' SIS on each of the sexual-assault counts and seventy-two months' SIS on the sexual-indecency count.
An information was filed in case number CR-2014-467 on May 21, 2014, charging appellant with one count of sex offender failure or refusal to provide information. Appellant pled guilty, signing a statement to that effect on May 25, 2014. He faced three to ten years' imprisonment. A sentencing order was entered on May 27, 2014, sentencing appellant to seventy-five days in the county jail. On August 22, 2017, appellee filed a petition to revoke appellant's SIS in case number CR-2014-467, for the following reasons:
[Appellant] has failed to live a law-abiding life by committing the offense of Sex Offender Failing to Comply with Registration Requirements on May 10, 2016; committed the offense of Rape on October 22, 2016; and, committed the offense of Intimidating a Witness on April 4, 2017. All of these charges occurred in Mississippi County, Arkansas. [Appellant] has failed to support his legal dependents and owes outstanding child support in Mississippi County; and, has failed to pay court costs to the Craighead County Sheriff's Office with a balance of $256.00.
Appellee filed an amended petition to revoke on December 6, 2017, asserting the same above-referenced allegations for revocation in case number CR-2007-848. Additionally, appellee asserted that appellant's "parole was flattened on May 31, 2013."
A hearing was held on January 4, 2018. The circuit court entered an order of probation or suspending imposition of sentence, or judgment and commitment on the same date, stating that appellant was found guilty by the circuit court of the following SIS violations, for which it gave him the following sentences:
(a) sex offender failure or refusal to provide information-a violation in CR-2014-467-for which he was sentenced to 108 months' imprisonment in the ADC, to run concurrent to the other charges;
(b) one count of sexual assault in the second degree-a violation in CR-2007-848-for which he was sentenced to 174 months' imprisonment in the ADC, 174 months of which imposition of sentence was suspended;
(c) a second count of sexual assault in the second degree-a violation in CR-2007-848-for which he was sentenced to 72 months' imprisonment; and
(d) sexual indecency with a child-a violation in CR-2007-848-for which no sentence was given.
The sentences on the two sexual-assault counts were ordered to run consecutive to one another for a total of 246 months in the ADC, and the sentence on the sexual-offender failure-or-refusal-to-provide-information charge was ordered to run concurrent to the two sexual assault counts. In the circuit court's January 5, 2018 sentencing order, appellant was sentenced to 108 months' imprisonment in the ADC on the sexual-offender-failure-or-refusal to-provide-information charge. This timely appeal followed.
A trial court may revoke a defendant's suspension at any time prior to the expiration of the period of suspension if it finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension. When a trial court revokes a sentence of suspension or probation, it may impose any sentence that might have been imposed originally for the offense of which he was found guilty-provided that any sentence of imprisonment, when combined with any previous imprisonment imposed for the same offense, shall not exceed the applicable statutory sentencing limits. This court will not reverse the trial court's decision to revoke unless it is clearly against the preponderance of the evidence.
Appellant's sole argument on appeal is that the circuit court erred when it revoked his SIS because it lacked subject matter jurisdiction to do so; he argues specifically that appellee failed to prove his SIS period had not yet expired at the time of the revocation petition. Appellant asserts that jurisdiction is an element of the crime of violation of SIS and so the appellee bears the burden of proving jurisdiction. In response, appellee relies on Rameriz v. State in arguing that we should affirm because appellant failed to produce a record demonstrating error-which is his burden-where he failed to provide evidence of his release date, upon which his argument relies.
The issue of an illegal sentence cannot be waived by the parties and may be addressed for the first time on appeal. 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. It is well settled-as appellee notes-that the appellant bears the burden of producing a record that demonstrates error.
In Rameriz , Rameriz's SIS was revoked, and he was sentenced to a prison term of three years with an additional three years' SIS for a second-degree escape conviction. On appeal, Rameriz argued to the circuit court his SIS had expired by the time the revocation hearing was held. Noting "probable merit" to the argument, this court held that it could not consider the argument due to an incomplete record. Rameriz referenced a "supplemental record" to show that his SIS ended on October 13, 2003, a month prior to the November 12, 2003 revocation hearing. However, on remand, the circuit court stated that the document in the "supplemental record" had not been before it. Accordingly, because there was no evidence before the circuit court showing Rameriz's release date and because this court denied Rameriz's motion to supplement the record-the denied document being what Rameriz relied on-this court affirmed the matter because Rameriz had failed in his burden of demonstrating error.
As in Rameriz , there is nothing before this court showing appellant's release date on his initial charge. Unlike in Rameriz , appellant has not even moved to supplement any document showing his release date as purportedly before the circuit court but missing from the record. With no evidence of his date of release, there is no evidence of error.
Affirmed.
Gruber, C.J., and Gladwin, J., agree.
Appellant was also ordered to register as a sex offender.
An order of nolle prosequi was entered on the second sexual-indecency count on the same date.
The circuit court's order stated that the two sexual assault counts were to run concurrent to one another.
The order noted that appellant was on parole at the time of the convictions.
Reyes v. State , 2015 Ark. App. 55, at 2, 454 S.W.3d 279, 280 (citing Ark. Code Ann. § 16-93-308(d) (Supp. 2013) ).
Easley v. State , 2017 Ark. App. 317, at 3-4, 524 S.W.3d 412, 414 (citing Ark. Code Ann. § 16-93-308(g)(1) (Supp. 2015) ).
Reyes , supra (citing Owens v. State , 2009 Ark. App. 876, at 6, 372 S.W.3d 415, 419 ).
91 Ark. App. 271, 277, 209 S.W.3d 457, 461 (2005).
Von Holt v. State , 2017 Ark. App. 314, at 6, 524 S.W.3d 19, 23 (quoting Valencia v. State , 2016 Ark. App. 176, at 6, 2016 WL 1039595 (citing Reyes, supra ) ).
Todd v. State , 2016 Ark. App. 270, at 3, 493 S.W.3d 350, 352 (citing Ark. Code Ann. § 5-4-307(c) (Repl. 2013) ).
Id. (citing Rameriz v. State , 91 Ark. App. 271, 209 S.W.3d 457 (2005) ).
Rameriz , 91 Ark. App. at 275, 209 S.W.3d at 460.
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COURTNEY HUDSON GOODSON, Associate Justice
Pending before this court is petitioner Rodney Bunch's pro se petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. Bunch's claims for coram nobis relief are based on allegations that his sentence was illegally enhanced because the prosecutor withheld evidence supporting his habitual-offender status in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Also pending is Bunch's pro se motion for sanctions to be placed upon the office of the attorney general.
Bunch was convicted of multiple counts of aggravated robbery in three trials arising from two separate cases docketed in the trial court as 60CR-98-3654 and 60CR-99-276. Bunch was charged in the first case docketed as 60CR-98-3654 with the aggravated robbery of Stephanie Springer Transue and was brought to trial in 1999, which resulted in a mistrial. Before this case was retried, Bunch was convicted of two counts of aggravated robbery in the case docketed as 60CR-99-276, which stemmed from the robbery of Head Waves Hair Salon. Consequently, the prosecutor amended the felony information in case number 60CR-98-3654 to include a habitual-offender charge. In that case, Bunch was convicted of the aggravated robbery of Transue and was sentenced by the trial court as a habitual offender to life imprisonment pursuant to Arkansas Code Annotated section 5-4-501(d) (Repl. 1997). On appeal, Bunch argued that section 5-4-501(d) was unconstitutional as applied to him. This court rejected the argument and affirmed the conviction and the enhanced sentence of life imprisonment. Bunch v. State , 344 Ark. 730, 43 S.W.3d 132 (2001). It is from this sentence that Bunch seeks coram nobis relief. Shortly after this court had affirmed Bunch's conviction and life sentence, the Arkansas Court of Appeals affirmed Bunch's two previous convictions for aggravated robberies committed at Head Waves Hair Salon. Bunch v. State, CR-00-1035, 2001 WL 520955 (Ark. App. May 16, 2001) (unpublished).
Bunch fails to make sufficient allegations to warrant coram nobis relief, and because coram nobis relief is not an available remedy for the purpose of seeking a reduction in a sentence, we deny the petition to proceed in the trial court with a coram nobis petition. Furthermore, Bunch's pro se motion for sanctions pursuant to Rule 11 (2017) of the Arkansas Rules of Appellate Procedure-Civil, is wholly without merit. Appellate Rule 11 is applicable to civil appellate proceedings and a petition to reinvest jurisdiction in the trial court to consider a petition for a writ of error coram nobis is a criminal proceeding. See Whitney v. State , 2018 Ark. 138, 2018 WL 1957111, reh'g denied (June 7, 2018) (the term "writ of error coram nobis" has been recognized in our common law for all motions for new trial in a criminal case). In any event, Bunch's allegations underlying his claim for sanctions fail to establish that the appellee's response was frivolous and lacked a reasonable legal or factual basis. See Stilley v. Hubbs , 344 Ark. 1, 40 S.W.3d 209 (2001). We therefore deny Bunch's pro se motion for sanctions.
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. Roberts v. State , 2013 Ark. 56, 425 S.W.3d 771. A writ of error coram nobis is an extraordinarily rare remedy. Id. Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. ; Westerman v. State , 2015 Ark. 69, 456 S.W.3d 374. 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. Roberts , 2013 Ark. 56, 425 S.W.3d 771. 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 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. Id. ; Howard v. State , 2012 Ark. 177, 403 S.W.3d 38.
Bunch has raised a Brady claim, which comes within the purview of coram nobis relief. There are three elements of a Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; (3) prejudice must have ensued. Carner v. State , 2018 Ark. 20, 535 S.W.3d 634 (citing Strickler v. Greene , 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) ). When determining whether a Brady violation has occurred, it must first be established by the petitioner that the material was available to the State prior to trial and that the defense did not have it. Id.
In his petition, Bunch challenges the validity of his enhanced sentence as a habitual offender resulting from his prior aggravated-robbery convictions in case number 60CR-99-276 wherein he was convicted of the aggravated robbery of Liz Kirk and Susan Kennedy and theft of property from Head Waves Hair Salon. Consequently, he alleges entitlement to a reduction in his sentence rather than a new trial on the underlying conviction for the aggravated robbery of Transue in case number 60CR-98-3654. Bunch asserts that one of the two previous convictions relied on by the prosecutor to establish his habitual-offender status was invalid and contends that the prosecutor had withheld the judgment as well as the criminal information to conceal the invalidity of one of the two convictions.
Specifically, Bunch argues that there are inconsistencies between the information and judgment-and-commitment order with respect to the victims named in counts five, six, and seven of the information. In any event, the two prior convictions were clearly valid. See Bunch , CR-00-1035, 2001 WL 520955 (Ark. App. May 16, 2001) (affirming Bunch's convictions by a Pulaski County jury for two counts of aggravated robbery). There can be no doubt that Bunch's previous convictions were matters that were not unknown by the defense at the time he was sentenced as a habitual offender following his second trial for the aggravated robbery of Transue in case number 60CR-98-3654. Therefore, Bunch has failed to demonstrate that the prosecutor concealed material matters in violation of Brady that would have changed the outcome of his sentencing. Carner , 2018 Ark. 20, 535 S.W.3d 634. Nor has Bunch raised allegations establishing matters extrinsic to the record that would have prevented the imposition of his life sentence. Roberts , 2013 Ark. 56, 425 S.W.3d 771.
Furthermore, Bunch's allegation challenging his sentence and seeking a reduction in that sentence does not fit within the recognized bases for coram nobis relief and is not the proper remedy to challenge an allegedly illegal sentence. This court has previously addressed this issue in Burks v. State , 2009 Ark. 598, 359 S.W.3d 402, in which the State procured the cooperation of a witness by supporting the witness's petition for a writ of error coram nobis seeking a reduction in a sentence that had been previously imposed pursuant to a plea agreement. In Burks , the circuit court granted the coram nobis relief and reduced the sentence after the witness had testified favorably for the State. Id. at 2, 359 S.W.3d at 405. Before the circuit court granted coram nobis relief, the defendant in Burks had moved to suppress the testimony because, among other things, cooperation was procured by a promise involving an illegal use of the writ of error coram nobis. Id. Despite the challenge to the improper use of the writ of error coram nobis, this court affirmed the circuit court's denial of the motion to suppress because the defendant's suppression motion did not represent a direct attack on the reduced sentence. Id. However, in a footnote, this court explained that "our court has repeatedly held that the grant of a writ of error coram nobis only affords one remedy-a new trial." Id. at 4 n.2, 359 S.W.3d at 406 n.2. Consequently, this court referred the prosecutor, the defense attorney, and the circuit judge to the Committee on Professional Conduct and the Judicial Discipline and Disability Commission because they had ignored clear precedent by using a writ of coram nobis as an improper means to reduce a sentence. Id. Accordingly, coram nobis is not an avenue through which a reduction in sentence can be obtained.
Petition denied; motion for sanctions denied.
Bunch was subsequently convicted of an additional four counts of aggravated robbery and one count of sexual abuse in a separate trial in case number 60CR-99-276, which stemmed from a separate robbery of Salon MDC. Bunch was again sentenced as a habitual offender and sentenced to life imprisonment. This court affirmed. Bunch v. State , 346 Ark. 33, 57 S.W.3d 124 (2001) (overruled by Grillot v. State , 353 Ark. 294, 107 S.W.3d 136 (2003), which clarified the standard of review used to analyze the trial court's ruling on the voluntariness of a confession).
Section 5-4-501(d)(1)(A) mandates a life sentence if a defendant has been convicted of a violent Y felony such as aggravated robbery and has previously been convicted of two or more violent Y felonies. Because a life sentence was mandatory, it was not necessary to submit the determination of Bunch's sentence to the jury.
Bunch had been charged in an information that contained thirty-eight criminal counts but was tried in case number 60CR99-276 for two counts of aggravated robbery as set forth in the information in counts five and six and one count of theft of property from Head Waves Salon as set forth in count seven of the information.
Bunch's arguments regarding invalidity of his prior convictions for counts five through seven are unclear. It appears that Bunch is asserting that count seven which included the theft of property charge did not include the name of the victim. Bunch asserts that Chris Woodall was not listed in counts five through seven, but nevertheless testified. According to Bunch, Chris Woodall's testimony should have been excluded because he was not named in the information. However, the direct appeal record shows that Woodall was the owner of Head Waves. In addition, Bunch alleges that his conviction for the aggravated robbery of Susan Kennedy as set forth in count six was not supported by sufficient evidence in that Kennedy could not identify him as the perpetrator. Thus, Bunch maintains that his conviction for the robbery of Kennedy is invalid. However, Liz Kirk listed as the victim in count five identified Bunch as the perpetrator and Chris Woodall also identified Bunch as the perpetrator. The judgment-and-commitment order shows that Bunch was convicted of two aggravated robbery charges for which he was sentenced to 240 months' imprisonment and that the theft of property conviction merged with the two aggravated robbery convictions. | [
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WAYMOND M. BROWN, Judge
Roxanne Garrison and her employer, Mercy Home Health Berryville (collectively, Mercy), bring this appeal from a judgment entered by the Boone County Circuit Court on a jury's verdict awarding Charles Hodge ("Bill") and Mary Hodge a total of $5.21 million arising out of a collision between a motorcycle and a car. Mercy argues that the circuit court erred in instructing the jury; in permitting counsel for the Hodges to make an improper closing argument; and in denying Mercy's motion for a new trial or remittitur because of excessive damages. We affirm.
The collision occurred at approximately 1:50 p.m. on April 23, 2015. Hodge was riding his motorcycle south on U.S. Highway 65 in Harrison, Arkansas. Garrison was traveling north on Highway 65. As Garrison attempted to make a left turn from Highway 65 onto Kenilworth Drive, she collided with Hodge's motorcycle, striking it on the front and left. Hodge was thrown from his motorcycle, suffering severe personal injuries, including the loss of his left leg above the knee.
Hodge filed suit against both Garrison and Mercy for the injuries he received as a result of the collision. The complaint alleged negligence against Garrison. Specifically, Hodge asserted three theories of negligence: that Garrison failed to yield the right of way; that she failed to maintain control of her vehicle; and that she failed to maintain a proper lookout. The claims against Mercy were premised on vicarious liability because Garrison was alleged to have been acting in the course and scope of her employment with Mercy. The Hodges sought compensatory damages for both property damage to the motorcycle and for personal injuries and loss of consortium.
Garrison and Mercy jointly answered, admitting the collision and that Garrison was acting in the course and scope of her employment but otherwise denying the material allegations of the complaint.
The case was submitted to a jury over five days. The circuit court gave the jury a general-verdict form on the issue of Garrison's negligence. The court also gave the jury separate verdict forms for each element of the Hodges' damages. One of the instructions (AMI Civ. 903) informed the jury that Ark. Code Ann. § 27-51-104(b)(8), which prohibits operating a motor vehicle when the driver is inattentive and such inattention is not reasonable and prudent in maintaining vehicular control, was in effect at the time of the collision between Hodge and Garrison and that violation of that statute was evidence of negligence that the jury could consider. Mercy objected to the circuit court including section 27-51-104(b)(8) in AMI Civ. 903 on the basis that there was no evidence that Garrison was inattentive. The circuit court allowed Hodge's AMI Civ. 903 instruction to be given.
Also over Mercy's objection, the circuit court instructed the jury that one element of damages that Hodge was claiming was for his loss of earning capacity. Mercy objected, claiming that there was no evidence regarding loss of earning capacity. According to the evidence, Hodge made approximately $1,100 more in 2016 than he did in 2014, the year before and after the accident. Mercy specifically argued that there was no qualified expert to tie any disability rating to the loss of ability to earn income. The court overruled Mercy's objection.
The jury found that Garrison was negligent and that such negligence was the proximate cause of the damages suffered by Bill Hodge. The jury also answered the separate verdict forms for each element of the Hodges' damages. They awarded Bill Hodge $1 million for the nature, extent, duration, and permanency of his injuries; $1 million for past and future medical expenses;
$3 million for pain, suffering, and mental anguish; approximately $4,100 for lost earnings; approximately $103,000 for loss of earning capacity; $50,000 for scarring and disfigurement; and $5,500 for the difference in the fair market value of the motorcycle. The jury also awarded $100,000 for Mary Hodge's claim for loss of consortium. The verdict form for Bill Hodge's disfigurement claim was signed only by eight of the twelve jurors; the court awarded $0 for this claim. Thus, with the exception of the disfigurement claim, judgment was entered on the jury's verdict. The total awarded by the judgment was $5,212,455.70.
Mercy filed two posttrial motions-a motion for stay of enforcement of the judgment and approval of a supersedeas bond and a motion for judgment notwithstanding the verdict (JNOV) or, alternatively, a motion for new trial. The JNOV motion raised twenty-one separate issues in its request for a new trial, including that the circuit court erred in instructing the jury on inattentive driving and loss of earning capacity. Mercy also argued that it was entitled to a new trial because the verdict was excessive with respect to the claims for pain, suffering, and mental anguish; the claim for past and future medical expenses; and the claim for loss of earning capacity.
The circuit court granted Mercy's motion for a stay but denied Mercy's JNOV motion. This appeal followed.
On appeal, Mercy contends the circuit court erred by (1) instructing the jury on inattentive driving because there was no evidence that Garrison was driving inattentively; (2) instructing the jury on lost earning capacity because the evidence did not show that Hodge suffered any loss of earning capacity; (3) permitting Hodge's counsel to make an improper closing argument and refusing to grant a new trial to remedy the error; and (4) denying Mercy's motion for a new trial or remittitur because the jury's award of damages was grossly excessive.
Mercy first argues that the circuit court erred in instructing the jury on inattentive driving because there was no evidence that Garrison was driving inattentively. A party is entitled to a jury instruction when it is a correct statement of the law and there is some basis in the evidence to support giving the instruction. It is the duty of the circuit court to instruct the jury, and each party has the right to have the jury instructed on the law of the case with clarity and in such a manner as to leave no grounds for misrepresentation or mistake.
Only where reasonable minds will not differ that the evidence does not establish a basis for a jury instruction is it error for the circuit court to give the instruction. The level of evidence to support the giving of an instruction does not necessarily have to rise to the level of substantial evidence to support the jury's verdict. Under the standard of review in this matter, this court will not reverse a circuit court's decision to submit a jury instruction unless the circuit court abused its discretion.
Mercy points to Roxanne Garrison's testimony that she was not using her cell phone, texting, smoking, or changing the radio station at the time of the collision. Mercy also points to the testimony of Sergeant Chad Morris of the Harrison Police Department that he could not tell that Garrison was distracted. However, in making this argument, Mercy ignores our standard of review. The amount of evidence required to support the giving of an instruction does not necessarily have to rise to the level of substantial evidence to support the jury's verdict. There merely has to be "some basis" in the evidence to support the instruction.
Here, Garrison testified that she did not see or hear Hodge's motorcycle. Our supreme court has described similar testimony as being "inattentive" and evidence of negligence. This is because one may not be heard to say that he did not see what was plain to be seen. There was also testimony from Garrison from which the jury could infer that she was impatient and in a hurry because she had sat, waiting to turn for what she said seemed like "several minutes." Thus, there is "some basis" in the evidence to support the giving of the instruction on inattentive driving.
Mercy's related argument that Garrison's failure to see Hodge's motorcycle cannot be used as evidence to support giving the inattentive-driving instruction because there are separate statutory prohibitions against both failing to maintain a proper lookout and inattentive driving, is not preserved for our review. There was no objection to the giving of the instruction based on its being covered by another instruction. Nor did Mercy raise the issue in its motion for new trial. The failure to object to the giving of an erroneous jury instruction before the case is submitted to the jury constitutes a waiver of any error committed by the court in giving it. Moreover, there is no logical reason why the same evidence cannot support jury instructions on more than one theory.
Mercy makes two related arguments about Hodge's loss-of-earning-capacity claim. The first is that the circuit court erred in instructing the jury on this claim because there was no evidence to support the giving of the instruction. Mercy's second argument is that the jury's award of damages for loss of earning capacity is speculative because there was no evidence to support the jury's verdict on this issue.
The loss of future wages and the loss of ability to earn are two separate and distinct elements of damages. Loss of earning capacity is the permanent diminution of the ability to earn money. The impairment of the capacity to earn is the gravamen of the element. The fact that the plaintiff is earning more than at the time of the injury is a factor to be considered, but does not preclude recovery for loss of earning capacity. Proof of loss of earning capacity does not require the same specificity or detail as does proof of loss of future wages. If there is proof of permanent disability, this element of damages may be submitted to the jury even in the absence of specific evidence of pecuniary loss due to inability to earn in the future. A numerical "impairment rating" is not essential to recovering for loss of earning capacity. In the absence of direct proof of the value of the diminished capabilities, the probable diminution of earning capacity may be inferred from the nature of the injuries.
The loss of a limb permits recovery for loss of earning capacity without the specificity required for loss of future earnings. The loss of earning capacity is also separate and distinct from the permanency of the injury. Here, it is undisputed that Hodge suffered a permanent injury in the loss of his left leg above the knee. Therefore, the instruction as to decreased earning capacity was proper under the circumstances of this case.
Mercy contends that there was no evidence of impairment of earning capacity, and the fact that Hodge's wages were higher after the accident than before proves no impairment-of-earning capacity. In rejecting such an argument, the Pennsylvania Supreme Court said:
The defendants contend that there was no evidence of impairment of earning power and that the fact that Bochar's wages were higher after the accident than before proves no deterioration of earning ability. A tort feasor is not entitled to a reduction in his financial responsibility because, through fortuitous circumstances or unusual application on the part of the injured person, his wages following the accident are as high or even higher than they were prior to the accident. Parity of wages may show lack of impairment of earning power if it confirms other physical data that the injured person has completely recovered from his injuries. Standing alone, however, parity of wages is inconclusive. The office worker who loses a leg has obviously had his earning ability impaired even though he can still sit at a desk and punch a comptometer as vigorously as before. It is not the status of the immediate present which determines capacity for remunerative employment. Where permanent injury is involved, the whole span of life must be considered. Has the economic horizon of the disabled person been shortened because of the injuries sustained as the result of the tort feasor's negligence? That is the test. And it is no answer to that test to say that there are just as many dollars in the patient's pay envelope now as prior to his accident. The normal status of a healthy person is to progress, and to the extent that his progress has been curtailed, he has suffered a loss which is properly computable in damages.[ ]
Our court has held that the fact the plaintiff is earning the same salary as prior to the accident is merely a factor for the jury to consider and is not conclusive. Here, Hodge suffered the loss of his left leg above the knee. He also testified that he cannot fully perform all the functions of his job as before the accident. Therefore, there was evidence that his ability to earn has been limited.
The closing argument given by Hodge's attorney is challenged in Mercy's third point. Mercy argues that the circuit court abused its discretion in not granting a new trial after permitting an improper argument.
We accord wide discretion to the circuit court in controlling, supervising, and determining the propriety of counsel's closing arguments. We will not reverse a circuit court's ruling regarding a closing argument absent a manifest abuse of discretion. An abuse of discretion occurs when the circuit court acts improvidently or thoughtlessly, without due consideration.
During closing argument, counsel for Hodge was discussing the differences in the testimony and opinions of two accident-reconstruction experts. Counsel then continued:
But the point is, what lane was it in? It was in the lane Bill Hodge had the right to occupy at the time. Instead, the defendants have provided an interesting defense. It's called the, I didn't see it defense. And Mr. Hendren is a very good speaker. He did a very good job in his opening argument. In fact, when I was listening to it I started thinking to myself, I hope we don't buy what he's selling in the, I Don't See It Defense. If we buy that, our streets aren't safe because it would mean anybody that didn't see ...
Mercy objected at that point. At the bench conference, Mercy argued as follows:
Your Honor, I've heard the "I don't do this very much thing," a few times, but he knows better than a Golden Rule Argument. That's exactly what that is. You can't say, "Our streets aren't safe" and say that to a jury. That is absolutely inappropriate. And they ought to be instructed and cautioned that he can't make that kind of an argument because it's a Golden Rule Argument, and it's inappropriate.
Mercy's co-counsel added:
The problem with it is that the issue in this case is Mr. Hodge and Ms. Garrison, not the safety of the community in general. That's inflammatory and prejudicial. And we join the objection and ask for the cautionary instruction.
After counsel for Hodge said that he was finished with that remark but intended to continue to discuss Mercy's defense theory, the court said that it was going to give an "instruction that they can't be asked to put their self in the place of the-I'm not sure that really is a Golden Rule Argument." The court also overruled Mercy's request for an instruction that the jury is not to consider any argument about the safety of the community at large. Mercy then made a motion for a mistrial "because we don't think that the bell can be un-rung especially if the Court's not even going to give them any kind of cautionary instruction or comment about the impropriety of the argument." The request for a mistrial was denied.
Counsel for Hodge then continued his closing argument as follows:
As I said, Mr. Hendren's defense in this case is an, I didn't see it defense. And on that theory, if I caused an accident and I simply could say, "I didn't see it," and I could be excused from responsibility, that's exactly what the defendants are asking. That's what Ms. Garrison is asking and that's what the effect would be on the company that employed her, if that defense was found to be acceptable.
I could go to an intersection and one of the things they've talked about is maybe she didn't see the motorcycle because there was a white car behind it and that somehow that obscured the silhouette of the motorcycle. On that theory I could be at an intersection with a red truck, a bright red truck with a child walking across in a red coat and claim that I didn't see the child in the red coat because it was obscured, the child was obscured by the background. That defense is simply not acceptable.
Although Mercy did not object to this portion of the argument, it contends on appeal that it, too, was improper.
We hold that the issue is not preserved for our review because Mercy's objection at trial was based on a "Golden Rule" argument and the argument on appeal is based on a "send-a-message" closing argument.
There is a distinction between a "Golden Rule" argument and a "send-a-message" argument. A "Golden Rule" argument is one that implores the members of the jury to put themselves in the position of a party or victim. The circuit court indicated that Hodge was not making a "Golden Rule" argument, but Mercy did not expand its objection to explicitly make a "send-a-message" objection. 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. Also, the court never ruled on the "send-a-message" issue because Mercy never properly raised a "send-a-message" objection. We are, therefore, precluded from reviewing the issue.
For its fourth point, Mercy contends that the circuit court abused its discretion in denying Mercy's motion for new trial or remittitur because the jury's award of damages was grossly excessive. Mercy argues that the awards for pain and suffering and for past and future medical expenses are excessive.
Juries have wide discretion in awarding damages in personal-injury cases. Where an award of damages is alleged to be excessive, we review the proof and all reasonable inferences most favorably to the appellee and determine whether the verdict is so great as to shock the conscience of the court or demonstrate passion or prejudice on the part of the trier of fact. "In determining whether the amount was so great as to shock the conscience, we consider such elements of damage as past and future medical expenses, permanent injury, loss of earning capacity, scars resulting in disfigurement, and pain, suffering, and mental anguish."
Mercy first argues that the jury's award of $3 million for pain, suffering, and mental anguish is excessive and not supported by the evidence. Specifically, Mercy argues that the testimony from Hodge and from Dr. Ted Lennard, who examined Hodge and reviewed the medical records, indicates that Hodge had minimal or no pain and that Hodge had no signs of anxiety or depression. Mercy also relies on Hodge's testimony that he could not recall any excruciating pain. Mercy's argument is somewhat misleading in that it frames the award and argument in terms of being an award only for future pain, suffering, and mental anguish. However, the jury was instructed to consider both past and future pain, suffering, and mental anguish.
There is no definite and satisfactory rule to measure compensation for pain and suffering and the amount of damages must depend on the circumstances of each particular case. Mercy argues that the fact that Hodge's leg was amputated above the knee cannot be considered as supporting an award for pain and suffering because it is, according to Mercy, covered under the award for nature, extent, duration, and permanency of the injury. However, Mercy cites no authority for this proposition. Moreover, pain and suffering may be inferred from the serious nature of the injury. In Scott-Burr Stores Corp. , our supreme court said that "many of the questions sometimes asked witnesses and answers given in regard to ... loss of limbs as to pain and suffering, are unnecessary attempts at proof of facts known by everyone who understands the extent of injuries."
Here, there is no doubt that Hodge suffered a severe, traumatic injury that resulted in the loss of his left leg above the knee. Hodge's mother, Rosemary Hodge, testified that before his second surgery, Hodge was yelling out in tremendous pain while not quite fully awake. Hodge himself also testified that there was some pain while he was in the hospital. Hodge will periodically have to have his prosthesis changed. This will also require additional physical-therapy sessions. This need for future procedures, while not surgeries, will also support an award for pain and suffering. There was also testimony that Hodge can no longer do several of the activities that he formerly enjoyed. These changes in lifestyle will also support an award for pain and suffering.
As noted above, we also consider other elements of damages in assessing whether an award is excessive. Here, the jury awarded $1 million for past and future medical expenses and $1 million for the nature, extent, duration, and permanency of the injury. Thus, the jury's award of $3 million for pain, suffering, and mental anguish is not out of line with the other elements of damages awarded by the jury. We cannot say that the jury's award shocks the conscience of the court.
Finally, Mercy contends that the jury's verdict of $1 million for past and future medical expenses is excessive. We disagree.
There was testimony from Dr. Ted Lennard that Hodge's total past medical expenses, including the initial cost of the prosthesis, was approximately $379,000. The initial cost of the prosthesis was $99,608. There was also testimony that the prosthesis would need to be replaced every three to five years. It was suggested that Hodge have the replacement every three years so he could keep as active as possible. The cost of each replacement was approximately $63,300. There is also the issue of maintenance, repair, and alteration of the prosthesis between replacements. This was estimated at $6,300 per year. Cycle Gates, the prosthetist, estimated the total cost of future medical expenses relating to the prosthesis for the remainder of Hodge's life at $822,812.
During closing arguments, Hodge's attorney asked the jury to award $970,609.75 for Hodge's past and future medical expenses. Mercy argues that any award above that total is excessive, not supported by the evidence, and speculative. Mercy's argument ignores the fact that future medical expenses do not have to be proved with the same exactness as past medical expenses. Moreover, Dr. Lennard also pointed out that Hodge will have additional expenses for physical therapy every time the prothesis is replaced. These extra sessions do not appear to have been factored into the estimate. As noted above, the jury awarded $1 million for past and future medical expenses. These extra sessions could easily push the medical expenses past the $1 million the jury awarded.
Affirmed.
Abramson and Harrison, JJ., agree.
Mary Hodge's consortium and companionship claims are derivative of her husband's claims. Therefore, for convenience, we will refer to Bill Hodge in the singular unless the context requires otherwise.
Engleman v. McCullough , 2017 Ark. App, 613, 535 S.W.3d 643.
McCorkle Farms, Inc. v. Thompson , 79 Ark. App. 150, 84 S.W.3d 884 (2002).
Pettus v. McDonald , 343 Ark. 507, 512, 36 S.W.3d 745, 748-49 (2001).
See id. at 512-13, 36 S.W.3d at 749.
Nelson v. Stubblefield , 2009 Ark. 256, 308 S.W.3d 586.
Pettus , 343 Ark. at 512-13, 36 S.W.3d at 748-49.
Id.
See Bell v. Darwin , 327 Ark. 298, 937 S.W.2d 665 (1997) ; Ball v. Hail , 196 Ark. 491, 118 S.W.2d 668 (1938).
Ball , 196 Ark. at 496, 118 S.W.2d at 671 ; see also Cobb v. Atkins , 239 Ark. 151, 388 S.W.2d 8 (1965).
See Bell, supra.
Thy N. Tran v. Thi T. Vo , 2017 Ark. App. 618, 535 S.W.3d 295.
Cates v. Brown , 278 Ark. 242, 645 S.W.2d 658 (1983).
Gross & Janes Co. v. Brooks , 2012 Ark. App. 702, 425 S.W.3d 795.
Id. ; see also Henry Woods, Earnings and Earning Capacity as Elements of Danger in Personal Injury Litigation , 18 Ark. L. Rev. 304 (1964).
Brooks, supra .
Id.
Id.
Id.
Id.
Hergeth, Inc. v. Green , 293 Ark. 119, 733 S.W.2d 409 (1987).
Id.
Bochar v. J.B. Martin Motors, Inc. , 374 Pa. 240, 97 A.2d 813, 815 (1953) (footnote omitted).
Brooks, supra .
Nat'l Bank of Commerce v. Quirk , 323 Ark. 769, 918 S.W.2d 138 (1996).
Id.
Milner v. Luttrell , 2011 Ark. App. 297, 384 S.W.3d 1.
Lee v. State , 340 Ark. 504, 11 S.W.3d 553 (2000).
Id.
Norman v. Cooper , 101 Ark. App. 446, 449-50, 278 S.W.3d 569, 572 (2008).
TEMCO Constr., LLC v. Gann , 2013 Ark. 202, 427 S.W.3d 651.
Buckley v. Summerville , 2018 Ark. App. 100, 543 S.W.3d 534.
Id.
Id. at 8, 543 S.W.3d at 540 (quoting Bill Davis Trucking, Inc. v. Prysock , 301 Ark. 387, 391, 784 S.W.2d 755, 757 (1990) ).
Hamby v. Haskins , 275 Ark. 385, 390, 630 S.W.2d 37, 40 (1982).
Scott-Burr Stores Corp. v. Foster , 197 Ark. 232, 122 S.W.2d 165 (1938).
Id. at 242, 122 S.W.2d at 170.
See RLI Ins. Co. v. Coe , 306 Ark. 337, 813 S.W.2d 783 (1991).
Id.
Buckley, supra .
Hodge's expert, Dr. Ralph Scott, an economist, reduced the future cost of the prosthesis replacements to a present value of $591,613. It was this present-value figure that Hodge's attorney used during closing argument to add to the past medical expense of approximately $379,000 to arrive at the $970,609.75 figure Mercy's argument refers to.
Brooks, supra . | [
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ROBIN F. WYNNE, Associate Justice
Appellant Tyrun Lamont Jones appeals the denial by the circuit court of his petition for writ of habeas corpus. Now before us is Jones's motion for an extension of time to file his brief-in-chief. As there was clearly no ground stated in the petition on which a writ of habeas corpus could be issued, the appeal is dismissed, and the motion is moot. 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. An appeal from an order that denied a petition for postconviction relief, including a petition for writ of habeas corpus, will not be permitted to go forward when it is clear that the appellant could not prevail. Love v. Kelley , 2018 Ark. 206, 548 S.W.3d 145.
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. 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). A trial court has subject-matter jurisdiction to hear and determine cases involving violations of criminal statutes. Id. Under our statute, a petitioner for the writ who does not allege his or her 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 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 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.
In 2016, Jones was found guilty by a jury of second-degree murder and felon in possession of a firearm for which an aggregate sentence of 300 months' imprisonment was imposed with a firearm enhancement of 180 months' imprisonment. The Arkansas Court of Appeals affirmed. Jones v. State , 2017 Ark. App. 286, 524 S.W.3d 1. Jones argued in his habeas petition that the writ should issue for the following reasons on the ground that he was unlawfully detained: (1) there was newly discovered evidence to show that the police had failed to properly identify a witness; (2) his lawyer had a conflict of interest; (3) the trial judge had a conflict of interest; (4) the police have yet to speak with or investigate witnesses that could have exonerated him at trial and that he has affidavits from those witnesses; and (5) there is no circumstantial or direct evidence to prove that he committed the homicide. The claims were entirely conclusory. In a response to the State's motion to dismiss the habeas petition, Jones enlarged on the allegations but he offered no claim that established that the judgment was invalid on its face or that the trial court lacked jurisdiction in the matter, and he did not contend that the sentence imposed was outside the statutory range for the offense or otherwise make a showing that he was being illegally detained.
The assertions raised by Jones as grounds for the writ that concern the investigation of the case by the police, the availability of other witnesses who could have exonerated him, and the strength of the evidence against him constitute a challenge to the sufficiency of the evidence to sustain the judgment of conviction. It is well settled that habeas proceedings are not a means to challenge the sufficiency of the evidence in a case. Barber v. Kelley , 2017 Ark. 214, 2017 WL 2473267. A habeas action does not afford a petitioner the opportunity to retry his or her case. Watkins v. Kelley , 2018 Ark. 215, 549 S.W.3d 908.
With respect to Jones's conclusory allegation that both the trial judge and his attorney had a conflict of interest in his case, even if the allegations had been supported by facts, the claim concerning the trial judge could have been raised at trial and settled there. Any allegation concerning his attorney could, and should, have been raised under Arkansas Rule of Criminal Procedure 37.1. See Lee v. State , 2009 Ark. 255, 308 S.W.3d 596. Neither claim is a ground for the writ because neither implicates the facial validity of the judgment or the jurisdiction of the trial court.
Appeal dismissed; motion moot.
Hart, J., concurs.
Josephine Linker Hart, Justice, concurring.
I concur. While it is proper to dismiss Jones's appeal, I must write against this court's practice of dismissing appeals for purported lack of merit when it has not even received the appellant's brief. Jones has filed a motion to extend the briefing time, and that is the only thing this court should be addressing at this juncture. Even so, literally all that Jones's motion consists of is "The appellant request [sic] for additional time to file his brief and addendum." This alone is not good cause to grant an extension, and the motion is properly denied. Accordingly, this court is free to dismiss Jones's appeal for failure to file a brief.
The court of appeals notes in its opinion that the conviction for possession of a firearm by certain persons was not at issue in the direct appeal. | [
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DAVID M. GLOVER, Judge
On October 31, 2018, in Commercial Fitness Concepts, LLC v. WGL, LLC , 2018 Ark. App. 522, --- S.W.3d ----, we reversed and dismissed the trial court's September 13, 2017 judgment. On November 13, 2018, WGL, LLC, filed a petition for rehearing, and Commercial Fitness Concepts, LLC, responded on November 19, 2018. We grant the petition for rehearing and issue the following substituted opinion.
The underlying facts of this case were set forth in Commercial Fitness Concepts, LLC v. WGL, LLC , 2017 Ark. App. 148, 516 S.W.3d 764, where we affirmed in part and reversed and remanded in part. Briefly, we affirmed the trial court's finding that Commercial Fitness was liable for the conversion of a computer-interface module/panel that controlled the heating and cooling equipment. We reversed and remanded, however, on the trial court's awards of damages: "We therefore reverse and remand the damages awards for the panel/module and for lost rents for the trial court to take further action in accordance with this decision." Id. at 11, 516 S.W.3d at 771. On remand, the trial court accepted the parties' stipulation that WGL "should recover damages in the amount of $2,888.46 for the fair-market value of the controller, the cost of replacement software, and the cost of installing the software and controller." Consequently, as stated in the September 13, 2017 judgment, "[t]he only issue before the Court was the lost rents incurred by [WGL] which were proximately caused by the conversion of the controller." The trial court found WGL was "entitled to one-month's rent in the amount of $55,000 as special or consequential damages caused by the conversion of the controller." WGL filed a motion for reconsideration, and Commercial Fitness responded. The trial court denied the motion, explaining in part: "The award for lost rents is proper and consistent with the instructions, on remand, from the Arkansas Court of Appeals[,]" and "[t]he Court of Appeals remanded this case back to the trial court for proof of the Plaintiff's lost rent damages."
In the instant appeal, Commercial Fitness raises three points: 1) the trial court erred as a matter of law in ruling that WGL could recover damages for loss of use of real property based on conversion of personal property; 2) the trial court's finding that WGL proved by a preponderance of the evidence that it was deprived of the use of its building is clearly erroneous; and 3) the trial court's finding that WGL proved by a preponderance of the evidence that Commercial Fitness's conversion proximately caused WGL not to collect rents for one month is erroneous and should be reversed. We reverse and vacate the portion of the September 13, 2017 judgment that awards $55,000 for lost rent, leaving intact the stipulated award of $2,888.46, and remand to the trial court with instructions to enter a new judgment in the stipulated amount of $2,888.46.
At the August 30, 2017 hearing on remand, WGL presented only two witnesses-Mike Charlton and Tim Salmonsen. Charlton testified that he had been the manager of WGL since 2006. He explained WGL was formed to build a custom-lease property for Rhett Garner. He testified WGL had a ten-year written lease with Garner, signed on November 14, 2006, and designated to cover the period 2008-2018; Garner declared bankruptcy; the bankruptcy trustee had possession during the bankruptcy; when WGL regained possession, the first problem was there was no air conditioning, and the building was not habitable in the summertime without air conditioning. Charlton testified there was no air conditioning in the facility because the computer and the interface between the computer and the sixteen HVAC units were missing. He explained he was in possession of the property for two months before the computer was replaced in August 2015. He further explained that "once he started the process, it did not take two months to replace the computer," but his discussions with Brandon Outlaw (who owned Commercial Fitness) about returning the computer "lasted a number of weeks." Charlton stated he could not rent the building without the air-conditioning systems because it was hard to get realtors to walk inside because it was so hot, and it was uninhabitable without the air conditioning. He said WGL sold the property in late November 2015. He described his own work experience and stated WGL was asking $55,000 a month to lease the building.
On cross-examination, Charlton said the last time WGL received rent for the property was when Garner made his last payment before filing for bankruptcy. Charlton described his efforts to learn if insurance covered the air-conditioning situation but reported he never received anything from insurance. He acknowledged responding to an interrogatory that "when it became apparent to plaintiff that defendant's insurance company was not going to replace the BCMETH and BCMPWS, plaintiff borrowed the money to pay for the cost of replacing BCMETH and BCMPWS." He acknowledged WGL was not able to lease the property the day after the modules were in place; not able to lease it in September; and not able to do so in October. In fact, he acknowledged WGL was never able to lease the property; instead, the property was sold in November, explaining, "I couldn't find anyone to pay what I needed to rent the property." He then acknowledged the reason WGL did not collect any rent for May, June, July, and August was because its tenant had declared bankruptcy and moved out, and if the tenant had still been in the facility, the tenant would have been paying.
On redirect examination, Charlton stated he had to borrow the money to pay for the controller WGL purchased from Northwest Controls; it was inconceivable to rent the property during the months of May, June, and July 2015 without air conditioning; and WGL had someone interested in renting if the building had air conditioning, but when that person learned there was no air conditioning, the individual was no longer interested.
Tim Salmonsen also testified at the hearing on remand. He explained he was a commercial real-estate broker in Benton County and had been for eleven years. He said he was knowledgeable about commercial rental rates in Benton County, and he described the variety of factors that determine the fair-rental value of a commercial property. He stated he was familiar with the property in question, and his job was to find another tenant that could utilize the building.
Salmonsen was then asked if he had an opinion regarding the fair monthly rental value of the property from May to August 2015. Commercial Fitness objected to the testimony as irrelevant, but the trial court overruled the objection. Salmonsen then stated his opinion that the fair monthly rental value of the property was $56,000 a month. He further stated, "We had it listed for sale or lease, and we even had a couple of people ask about it, but we couldn't let a renter lease it because the air conditioner was not working at that time." He did not believe anyone would want to occupy a building with no air conditioning in the summer.
On cross-examination, Salmonsen acknowledged that renters or buyers often have demands or issues they want to address before closing a deal; he said he did not know whether a $6,000 issue would prevent a closing in a transaction involving a $50,000 a month rental payment or a $5 million purchase price. He acknowledged the air-conditioning system had been fixed in August, and he still did not lease or sell the property until the end of November.
For its first point of appeal, Commercial Fitness contends the trial court erred as a matter of law in ruling WGL could recover damages for loss of use of real property based on conversion of personal property. We are not willing to rule, as a matter of law, that consequential damages can never be established in a conversion case where the conversion of personal property causes loss-of-use damages concerning real property.
Our original opinion quoted at length from McQuillan v. Mercedes-Benz Credit Corp. , 331 Ark. 242, 961 S.W.2d 729 (1998), for the general proposition that the market value of the converted property is not the only measure of the damages recoverable in an action for conversion; the circumstances of the case may require a different standard, including a measure of the expenses incurred as a result of the conversion. As will be discussed, infra , we find clear error in the trial court's finding that consequential damages were established in this case; however, we are not willing to hold that the trial court erred as a matter of law in allowing evidence of and considering the possibility of a measure of damages for conversion that was not limited to the fair-market value of the property converted, i.e. , that included the possibility of consequential damages.
For its second and third points of appeal, Commercial Fitness contends the trial court clearly erred in finding WGL proved it was deprived of the use of its building and Commercial Fitness's conversion proximately caused WGL to lose rent for one month. These points are intertwined, but because we have concluded the trial court clearly erred in finding the conversion proximately caused one month's loss of rent, it is not necessary to further discuss the deprivation-of-use issue.
As previously mentioned, our supreme court explained in the McQuillan case that the circumstances of a personal-property conversion case may require a different standard for damages, including a measure of the expenses incurred "as a result of" the conversion. Consequential damages in a personal-property conversion case would be an exception to the rule, and the "as a result of" language reasonably equates to proximate cause. Proximate cause is defined as that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. TMC Cattle Co., Inc. v. Parker Commercial Spraying, LLC , 2018 Ark. App. 144, 540 S.W.3d 754.
Here, the building at issue was specifically built to house a huge gym. Charlton acknowledged at one point in his testimony it was Garner's bankruptcy that caused the loss of rent; Charlton testified he could not afford to fix the air-conditioning problem, which apparently would have cost about $6,000, but he also stated he waited for some time thinking Commercial Fitness would return the computer interface module/panel; and when the equipment was not returned, he borrowed the money to fix it. There was also testimony the air-conditioning system was fixed in August 2015, but the property still did not lease or sell until late November 2015.
While we have not ruled out the possibility for the recovery of consequential damages in a personal-property conversion case as a matter of law under McQuillan , we are left with a definite and firm conviction the trial court made a mistake in awarding damages for lost rent under the facts of this case. The evidence presented at the hearing on remand did not establish that the lost rent awarded by the trial court was proximately caused by the conversion of the computer-interface module/panel. We hold there was clear error in the trial court's finding that WGL lost rent for even one month "as a result of" the conversion. We therefore reverse and vacate that portion of the September 13, 2017 judgment awarding $55,000 for lost rent; leave intact the stipulated award of $2,888.46; and remand to the trial court with directions to enter a new judgment in the stipulated amount of $2,888.46 "for the fair-market value of the controller, the cost of replacement software, and the cost of installing the software and controller."
Reversed and vacated in part and remanded with instructions.
Gruber, C.J., and Virden, Gladwin, Vaught, and Murphy, JJ., agree.
To the extent the trial court interpreted our earlier opinion to hold it was required to award damages for lost rent and its only task on that issue was to determine the amount of lost rent, the trial court misinterpreted our opinion. | [
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SHAWN A. WOMACK, Associate Justice
In 2003, a jury convicted Dednam of capital murder and he was sentenced to life imprisonment without parole. We affirmed. Dednam v. State , 360 Ark. 240, 200 S.W.3d 875 (2005). Pending before this court is petitioner Marrio Dednam's pro se petition to reinvest jurisdiction in the trial court to consider a petition for a writ of error coram nobis. Dednam's claim for coram nobis relief is based on an allegation that the prosecutor withheld material evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
In his petition, Dednam alleges that the prosecution withheld evidence that Willie Davis, Jr. and Antoine Baker pleaded guilty to the murder for which Dednam had been convicted. In support of this allegation, Dednam attaches to his petition a transcript of Baker's guilty plea to multiple federal crimes. A review of the plea transcript from the United States District Court for the Eastern District of Arkansas reveals that Baker pleaded guilty on October 15, 2009, to conspiring to kill the victim with the aid of Davis and Dednam. Because Baker's guilty plea is inculpatory with respect to Dednam rather than exculpatory and was entered years after Dednam's conviction, Dednam has failed to establish a basis for coram nobis relief. Accordingly, we deny the petition to proceed in the trial court with a coram nobis petition.
In his request for coram nobis relief, Dednam asserts that material evidence was withheld by the prosecutor in violation of Brady . There are three elements of a Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; (3) prejudice must have ensued. Carner v. State , 2018 Ark. 20, 535 S.W.3d 634 (citing Strickler v. Greene , 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) ). When determining whether a Brady violation has occurred, it must first be established by the petitioner that the material was available to the State prior to trial and that the defense did not have it. Carner , 2018 Ark. 20, 535 S.W.3d 634.
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. Roberts v. State , 2013 Ark. 56, 425 S.W.3d 771. A writ of error coram nobis is an extraordinarily rare remedy. Id. Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. ; Westerman v. State , 2015 Ark. 69, 456 S.W.3d 374. 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. Roberts , 2013 Ark. 56, 425 S.W.3d 771. 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 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. Id. ; Howard v. State , 2012 Ark. 177, 403 S.W.3d 38.
The evidence adduced at Dednam's trial established that Dednam murdered the victim, Jerry Otis, at the behest of his cousin, Baker. Baker had previously robbed Otis and was being prosecuted for that offense, and Otis was the primary witness for the prosecution. At Dednam's trial, the prosecution established motive for the murder by introducing evidence that, on the day Otis was murdered, Dednam had visited Baker in the Pulaski County Jail. See Dednam , 360 Ark. at 242, 200 S.W.3d at 877. The transcript of Baker's 2009 guilty plea demonstrates that, among other things, Baker pleaded guilty to instigating the murder by instructing Dednam and Davis to kill Otis to prevent him from testifying against Baker on the pending robbery charge as well as to prevent Otis from implicating Baker in ongoing drug-trafficking activities. The transcript attached to Dednam's petition for coram nobis relief does not contain facts that would have prevented the rendition of the guilty verdict but rather confirms Dednam's guilt. Moreover, Baker's plea occurred six years after Dednam was tried for capital murder and cannot be said to be information known but withheld at the time of Dednam's trial. In sum, Dednam's petition is without merit.
Petition denied.
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JOSEPHINE LINKER HART, Associate Justice
Appellant Carl Mouton, was convicted in the Pulaski County Circuit Court of two counts of sexual assault in the second degree. On appeal, Mouton argues that he should have been permitted to present evidence of the sexual nature of the relationship between the victim, KV, and another minor, EP. Mouton argues that the exclusion of this evidence did not comport with Arkansas Rule of Evidence 411, and that the exclusion violated his constitutional right to present a defense. The State has also appealed, requesting that this court declare error regarding the trial court's refusal to allow Brittany Perry from testifying against Mr. Mouton as a 404(b) witness.
I. Background
Carl Mouton was the band director for Oak Grove High School and then continued to serve as band director after Oak Grove High School became Maumelle High School in 2011. The high school's band program saw great success during Mouton's tenure, which developed an environment where both parents and students alike took pride in the school band and participated in its activities through a booster program.
KV attended Maumelle High School and played in the band from 10th through 12th grade. She graduated early at sixteen years old and was attending classes as a freshman in college at the time of the trial below. KV, like many other students, had a very close and friendly relationship with Mouton. KV and Mouton would regularly hug each other at school and band functions. Beginning in November 2014, KV began a dating relationship with another female student in the band, EP. At some point, KV's and EP's parents found out about their relationship, and they attempted to put an end to it by having KV, EP, and certain school officials sign an agreement that KV and EP would not sit together or hang out together at school unsupervised; however, Mouton did not force the girls to abide by the agreement when they were under his supervision. By the date of the pretrial hearing, May 8, 2017, KV and EP were no longer in a dating relationship.
During this time, EP was living in Little Rock, but she was able to attend Maumelle High School because her mother, Diedre Pippenger, had agreed with another individual, Leonard McKinney, who resided in Maumelle and with whom Pippenger reportedly had a close relationship, to represent to the public that EP was living at McKinney's residence. McKinney was very involved in the band's booster program and has a child of his own who had been in the band.
According to KV's pretrial testimony, during finals week of her sophomore year, KV and Mouton gave each other an end-of-the-year goodbye hug, and Mouton grabbed KV's bottom during their embrace. KV testified that Mouton continued to periodically grab her bottom when the two would hug throughout the remainder of her time at Maumelle High School. She also testified that in May 2015, Mouton pulled her breast out of her shirt and placed his mouth over her breast for approximately 15 seconds. KV reportedly told EP about the incident via text message two weeks later in July 2015 and made EP promise to keep it a secret. No evidence was presented regarding any other communicating or reporting of the incident at the time.
Over the course of the next year, Mouton's relationship with McKinney deteriorated due to disagreements about the management of the band. Mouton eventually "fired" (or was in the process of firing) McKinney from the booster club during the week of May 5-11, 2016. Mouton's and McKinney's disagreements apparently manifested in a "blowup" at a meeting at the school on May 5, 2016, for which both EP and McKinney were present and from which McKinney drove EP home. EP testified that, the next evening, she told her mother about the incident KV had described approximately a year prior. Pippenger herself recalled EP disclosing what KV had said about Mouton the same night McKinney drove her home from the meeting.
Pippenger testified that, for a day or two, she did not do anything in response to EP's disclosure, and she then called McKinney looking for advice. McKinney gave Pippenger the telephone number for the child-abuse "Hot Line," which Pippenger reportedly called a couple of days later. The ensuing investigation led to Mouton being charged with, and later convicted of, two counts of second-degree sexual assault against KV.
II. Issues on Appeal and Applicable Legal Authority
The issues on appeal stem from the trial court's decisions with respect to two pretrial motions. The first was Mouton's "rape-shield" motion, which sought to introduce evidence of the sexual nature of KV's relationship with EP. The trial court denied this motion, ruling that Mouton could present evidence that KV and EP were close friends, but not evidence of their previous sexual relationship. Mouton appeals this decision, arguing that the evidence should not have been excluded under Rule 411, and that its exclusion violates his constitutional right to present a defense. The second pretrial motion was Mouton's motion to exclude Rule 404(b) testimony from one of the State witnesses, Brittany Perry. Perry would have testified that she and Mouton had engaged in physical interactions while Perry was a high school student, some eighteen years prior, that were similar to those alleged to have occurred between Mouton and KV. The trial court granted this motion, ruling that Perry would not be permitted to testify at trial. The State appeals this decision, seeking either (1) if this court reverses the trial court's decision pursuant to Mouton's arguments, a ruling on this issue to bring back to the trial court on remand, or (2) if this court affirms the trial court's decision with respect to Mouton's arguments, a "declaration of error" for the purported benefit of the bench and the bar.
We begin with Mouton's arguments, both of which deal with Rule 411, Arkansas's rape-shield rule. Some of our prior cases have addressed these arguments in tandem, so to obviate the need for multiple discussions of the same cases, we will first review all the applicable legal authorities and then apply the relevant provisions of those legal authorities to Mouton's arguments, one at a time. Mouton's first argument is that evidence of the sexual nature of KV and EP's relationship should not have been excluded under the procedure and analysis set forth in Rule 411(c). Rule 411 provides in relevant part as follows:
(b) In any criminal prosecution under Ark. Code Ann. § 5-14-101 et seq. or § 5-26-202, or for criminal attempt to commit, criminal solicitation to commit, or criminal conspiracy to commit an offense defined in any of those sections, opinion evidence, reputation evidence, or evidence of specific instances of the victim's prior sexual conduct with the defendant or any other person, evidence of a victim's prior allegations of sexual conduct with the defendant or any other person, which allegations the victim asserts to be true, or evidence offered by the defendant concerning prior allegations of sexual conduct by the victim with the defendant or any other person if the victim denies making the allegations is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.
(c) Notwithstanding the prohibition contained in subsection (b) of this rule, evidence directly pertaining to the act upon which the prosecution is based or evidence of the victim's prior sexual conduct with the defendant or any other person may be admitted at the trial if the relevancy of the evidence is determined in the following manner:(1) A written motion shall be filed by the defendant with the court at any time prior to the time the defense rests stating that the defendant has an offer of relevant evidence prohibited by subsection (b) of this rule and the purpose for which the evidence is believed relevant.
(2)(A) A hearing on the motion shall be held in camera no later than three (3) days before the trial is scheduled to begin, or at such later time as the court may for good cause permit.
(B) A written record shall be made of the in camera hearing and shall be furnished to the appellate court on appeal.
(C) If, following the in camera hearing, the court determines that the offered proof is relevant to a fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature, the court shall make a written order stating what evidence, if any, may be introduced by the defendant and the nature of the questions to be permitted in accordance with the applicable rules of evidence.
The general purpose of the rape-shield rule "is to shield victims of rape or sexual abuse from the humiliation of having their personal conduct, unrelated to the charges pending, paraded before the jury and the public when such conduct is irrelevant to the defendant's guilt." McCoy v. State , 2010 Ark. 373, at 9, 370 S.W.3d 241, 247. Subsection (b) of Rule 411 identifies several types of evidence that will be inadmissible unless the admissibility of the evidence is established through the procedure and analysis set forth in subsection (c), by showing that the evidence is relevant and that its probative value outweighs its prejudicial or inflammatory effect.
Interpreting these provisions in Marion v. State , this court ruled that a defendant can present to the jury evidence of a victim's prior sexual conduct that would otherwise be prohibited by the rape-shield rule if the defendant can establish a legitimate "evidentiary hypothesis underpinned by a sufficient statement of facts." 267 Ark. 345, 348-49, 590 S.W.2d 288, 290 (1979). There, the defendant was charged with rape, and he filed a pretrial motion for an in camera hearing to determine the admissibility of the victim's prior sexual conduct. Id. at 346, 590 S.W.2d at 289. The trial court denied the defendant's motion, and the defendant then brought an interlocutory appeal of the trial court's decision to deny his motion. Id. This court made two important observations. First, with respect to the defendant's argument that the proffered evidence should have been admissible pursuant to the procedure and analysis set forth in subsection (c) of the rape-shield rule, this court held as follows:
Appellant's defense to the rape charge was that no sexual intercourse occurred between them on the alleged occasion. He proffered evidence that the charge against him was made by the prosecutrix because of a fight they had as a result of his contracting a venereal disease from her. At the time of the fight, she threatened "she would get even with him." Consequently, the present charge resulted. We cannot agree with the court's exclusion of this proffered evidence. Certainly, upon sufficient proffer as here, the victim's bias, prejudice or ulterior motive for filing the charge is relevant or germane to the question of whether the alleged act of sexual intercourse actually occurred and the probative value outweighs its inflammatory or prejudicial nature.
Id. at 348, 590 S.W.2d at 290. Accordingly, this court held that the evidence should have been admitted pursuant to the procedure and analysis set forth in subsection (c) of the rape-shield rule.
The Marion court also acknowledged the defendant's second argument, that the trial court's application of the rape-shield rule to the evidence in question violated the defendant's constitutional right to confront the witnesses against him.
[A]ppellant's counsel was denied effective cross-examination of a constitutional magnitude when he, after stating an evidentiary hypothesis underpinned by a sufficient statement of facts, was refused the right to reveal possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand[.]
Id. at 348-49, 590 S.W.2d at 290 (internal quotations omitted). Accordingly, this court held that excluding the evidence of bias and motivation to lie violated the defendant's constitutional right to confront the witnesses against him.
Mouton also cites several United States Supreme Court cases in support of his argument that the trial court's application of the rape-shield rule violated his constitutional right to present a defense. He points to Crane v. Kentucky , 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986), where the Supreme Court held:
Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, Chambers v. Mississippi , supra , or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, Washington v. Texas , 388 U.S. 14, 23 [87 S.Ct. 1920, 18 L.Ed.2d 1019] (1967) ; Davis v. Alaska , 415 U.S. 308 [94 S.Ct. 1105, 39 L.Ed.2d 347] (1974), the Constitution guarantees criminal defendants "a meaningful opportunity to present a complete defense." California v. Trombetta , 467 U.S., at 485 [104 S.Ct. 2528] ; cf. Strickland v. Washington , 466 U.S. 668, 684 685 [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984) ("The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment"). We break no new ground in observing that an essential component of procedural fairness is an opportunity to be heard. In re Oliver , 333 U.S. 257, 273 [68 S.Ct. 499, 92 L.Ed. 682] (1948) ; Grannis v. Ordean , 234 U.S. 385, 394 [34 S.Ct. 779, 58 L.Ed. 1363] (1914).
476 U.S. at 690, 106 S.Ct. 2142. Mouton also directs our attention to Davis v. Alaska , 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), and Olden v. Kentucky , 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988), cases in which the Court has emphasized the importance of the defendant's ability to cross-examine the witnesses testifying against him. In Davis , a burglary case in which the trial court prevented the defendant from using the fact that a witness was on juvenile probation for burglary to impeach that same witness, the Supreme Court stated:
On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness ... On these facts it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Petitioner was thus denied the right of effective cross-examination which would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.
415 U.S. at 318, 94 S.Ct. 1105 (emphasis added).
Olden is also instructive. There, James Olden and Charlie Ray Harris, both of whom were black, were indicted for kidnapping, rape, and forcible sodomy. 488 U.S. at 228, 109 S.Ct. 480. The alleged victim, Starla Matthews, had traveled with her friend to Princeton, Kentucky, to exchange Christmas gifts with Bill Russell, Olden's half-brother. Id. After exchanging gifts with Russell at a car wash, Matthews went with her friend to a local bar. Id. Much of the remaining facts were in dispute, but the gist is that Matthews left the bar with Olden and Harris in Harris's vehicle, and Olden and Matthews engaged in sexual intercourse multiple times over the remainder of the evening. Id. at 228-29, 109 S.Ct. 480. Olden asserted that Matthews had propositioned him and that the sex was entirely consensual; Matthews asserted that the sex was nonconsensual and that Harris had assisted Olden by holding Matthews's arms. Id. Afterward, Olden and Harris drove Matthews back to Russell's house, dropped Matthews off, and drove away. Id. at 229-30, 109 S.Ct. 480. When Russell met Matthews at the door as she approached Russell's house, Matthews told Russell that she had just been raped by Olden and Harris. Id.
At trial, Olden sought to introduce evidence of the fact that Matthews was living with Russell in an effort to show Matthews's motivation to fabricate the allegations. Id. at 230, 109 S.Ct. 480. The Court observed,
Although Matthews and Russell were both married to and living with other people at the time of the incident, they were apparently involved in an extramarital relationship. By the time of trial the two were living together, having separated from their respective spouses. Petitioner's theory of the case was that Matthews concocted the rape story to protect her relationship with Russell, who would have grown suspicious upon seeing her disembark from Harris' car. In order to demonstrate Matthews' motive to lie, it was crucial, petitioner contended, that he be allowed to introduce evidence of Matthews' and Russell's current cohabitation. Over petitioner's vehement objections, the trial court nonetheless granted the prosecutor's motion in limine to keep all evidence of Matthews' and Russell's living arrangement from the jury. Moreover, when the defense attempted to cross-examine Matthews about her living arrangements, after she had claimed during direct examination that she was living with her mother, the trial court sustained the prosecutor's objection.
Id. at 229-30, 109 S.Ct. 480. The jury acquitted Harris of all charges and acquitted Olden of kidnapping and rape, but "in a somewhat puzzling turn of events," the jury convicted Olden of forcible sodomy and sentenced him to ten years in prison. Id. at 230, 109 S.Ct. 480. Olden appealed, arguing that the trial court's decision violated his constitutional right to be confronted with the witnesses against him. Id.
The Supreme Court reversed, ruling that the trial court's restriction upon Olden's ability to cross-examine Matthews violated Olden's Sixth Amendment rights. Id. at 231, 109 S.Ct. 480. The Court noted,
The Kentucky Court of Appeals did not dispute, and indeed acknowledged, the relevance of the impeachment evidence. Nonetheless, without acknowledging the significance of, or even adverting to, petitioner's constitutional right to confrontation, the court held that petitioner's right to effective cross-examination was outweighed by the danger that revealing Matthews' interracial relationship would prejudice the jury against her. While a trial court may, of course, impose reasonable limits on defense counsel's inquiry into the potential bias of a prosecution witness, to take account of such factors as "harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that [would be] repetitive or only marginally relevant," Delaware v. Van Arsdall, supra , [475 U.S. 673] at 679, 106 S.Ct. [1431] at 1435 [89 L.Ed.2d 674 (1986) ], the limitation here was beyond reason. Speculation as to the effect of jurors' racial biases cannot justify exclusion of cross-examination with such strong potential to demonstrate the falsity of Matthews' testimony.
Id. at 232, 109 S.Ct. 480. The Court then added that "a constitutionally improper denial of a defendant's opportunity to impeach a witness for bias" must be reversed unless the appellate court finds that the error was harmless beyond a reasonable doubt, based upon factors including "the importance of the witness' 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, of course, the overall strength of the prosecution's case." Id. at 232-33, 109 S.Ct. 480 (referencing Van Arsdall , supra , and Chapman v. California , 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ). Applying those factors to Olden's case, the Court reasoned,
Here, Matthews' testimony was central, indeed crucial, to the prosecution's case. Her story, which was directly contradicted by that of petitioner and Harris, was corroborated only by the largely derivative testimony of Russell, whose impartiality would also have been somewhat impugned by revelation of his relationship with Matthews. Finally, as demonstrated graphically by the jury's verdicts, which cannot be squared with the State's theory of the alleged crime, and by Judge Clayton's dissenting opinion below, the State's case against petitioner was far from overwhelming. In sum, considering the relevant Van Arsdall factors within the context of this case, we find it impossible to conclude "beyond a reasonable doubt" that the restriction on petitioner's right to confrontation was harmless.
Olden , 488 U.S. at 233, 109 S.Ct. 480.
III. Analysis: Rule 411
Turning to the facts of this case, we first address Mouton's argument that evidence of KV's and EP's sexual relationship should have been admissible pursuant to Rule 411's plain language, without yet addressing the constitutionality of Rule 411's application to the evidence in question. This court will not reverse the circuit court's decision as to the admissibility of "rape shield" evidence unless its ruling constitutes clear error or a manifest abuse of discretion. Allen v. State , 374 Ark. 309, 287 S.W.3d 579 (2008).
The evidence Mouton sought to introduce triggers the application of Arkansas Rule of Evidence 411. Rule 411 is applicable to prosecutions for second-degree sexual assault, and Mouton was seeking to introduce evidence of KV's prior sexual conduct, specifically, her sexual relationship with EP. Accordingly, Mouton filed a pretrial motion pursuant to Rule 411(c) to determine whether the probative value of the sexual nature of the relationship was outweighed by the prejudicial or inflammatory effect its admission would have upon the proceedings. After the hearing, the trial court denied Mouton's motion, ruling that Mouton could present evidence of KV's and EP's friendship, but could not present evidence that KV and EP were previously having sex.
Once triggered, Rule 411(c)(1)-(2) dictates that the first question the trial court must ask is whether evidence of the sexual nature of KV's and EP's relationship would have been relevant at all to the trial. Relevance is an extremely low burden that is met whenever the evidence has "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. As would be true in any case when two witnesses have a romantic sexual history, the fact that KV and EP had been engaged in sexual activity would have influenced the jury's impression of each girl's demeanor and testimony concerning each other. Thus, the excluded evidence would have been relevant to the proceedings because it could have been used to suggest bias or a motivation to lie.
The next question, as dictated by Rule 411(c)(2)(C), is whether the additional probative value of this evidence would have been outweighed by its prejudicial effect. As previously set forth, Mouton could have extracted probative value from the fact that KV and EP had a sexual history. However, for purposes of this analysis, the probative value of the suppressed evidence must be assessed in light of the evidence that Mouton was permitted to present at trial. Mouton was permitted to show that KV and EP were close friends. In other words, the fact that KV and EP had previously engaged in a sexual relationship only bears additional probative value to the extent that "friends who have had sex before" is more suggestive of potential bias in this case than "friends" would be.
Assuming the suppressed evidence would have offered additional probative value in this case, Rule 411(c)(2)(C) provides that this probative value must be measured against the risk of the prejudicial or inflammatory effect that introduction of the evidence would create. This court is without much guidance on this point. The State did not file a response to Mouton's motion to present the evidence of KV's prior sexual conduct; the trial court denied Mouton's motion without explanation; and on appeal, the State only argues that the proffered evidence would not have been relevant at all.
However, the trial court's analysis on this issue would necessarily have included certain considerations. First, one could argue that the presentation of this evidence would constitute a "parade" of KV's unrelated prior sexual conduct, which the trial court could have found to be "inflammatory" and implicative of the rape-shield rule's stated purpose. Additionally, there were several factual circumstances wrapped up in KV's and EP's relationship that, while having no bearing upon Mouton's guilt or innocence, could have had a prejudicial or inflammatory effect on the proceedings, such as the "contract" that KV and EP were forced to sign with their school officials and that Mouton declined to enforce. Overall, considering (1) that the Rule 411 balancing test requires suppression whenever the probative value of the evidence is outweighed by its prejudicial effect (as opposed to the traditional Rule 403 balancing test, which requires suppression only when the probative value of the evidence is substantially outweighed by its prejudicial effect); (2) the debatable extent to which this evidence would have supplied more probative value than the evidence Mouton was permitted to present to the jury; and (3) that the trial court's decision in this situation is reviewed for clear error or manifest abuse of discretion, we cannot say that the trial court committed reversible error in concluding that the language of Rule 411 warranted exclusion of the evidence in question.
IV. Analysis: Constitutional Right to Present a Complete Defense
We now address whether the trial court's application of Rule 411 to exclude the evidence in question violated Mouton's constitutional right to present a complete defense. A trial in which a constitutional error occurred must be reversed unless the reviewing court finds the error harmless beyond a reasonable doubt. See Olden , supra ; Chapman, supra. We conclude that the trial court's decision in this case did not violate Mouton's constitutional right to present a complete defense.
While a defendant certainly has a constitutional right to present a complete defense at trial, it does not follow that any and all evidentiary exclusions adverse to the defendant will constitute a violation of that right. The Supreme Court has noted,
"[T]he Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense,' " Crane v. Kentucky , 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (quoting California v. Trombetta , 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) ), but we have also recognized that "state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials," Holmes v. South Carolina , 547 U.S. 319, 324, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006) (quoting United States v. Scheffer , 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) ). Only rarely have we held that the right to present a complete defense was violated by the exclusion of defense evidence under a state rule of evidence. See 547 U.S., at 331, 126 S.Ct. 1727 (rule did not rationally serve any discernible purpose); Rock v. Arkansas , 483 U.S. 44, 61, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (rule arbitrary); Chambers v. Mississippi , 410 U.S. 284, 302-303, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (State did not even attempt to explain the reason for its rule); Washington v.Texas , 388 U.S. 14, 22, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) (rule could not be rationally defended).
Nevada v. Jackson , 569 U.S. 505, 509, 133 S.Ct. 1990, 186 L.Ed.2d 62 (2013).
While it may not always be stated in identical terms, a consistent theme in the cases from both the Arkansas Supreme Court and the United States Supreme Court addressing the constitutional right to present a complete defense is that a defendant's ability to verbally cross-examine the witnesses presented against him will not be impeded, provided that the cross-examination pursues an evidentiary hypothesis underpinned by sufficient supporting facts. See, e.g. , Davis , 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (defendant's theory was that complaining witness identified defendant as the burglar because complaining witness was afraid that authorities thought he was the actual burglar and wanted to divert suspicion; prosecution presented no evidence to foreclose defendant's theory); Olden , 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (defendant's theory was that victim levied rape accusation against defendant to discourage third party from ending his romantic relationship with victim after she had consensual sex with defendant; prosecution presented no evidence to foreclose defendant's theory); Marion , 267 Ark. 345, 590 S.W.2d 288 (defendant's theory was that victim levied rape accusation against defendant in retaliation for fight over defendant contracting venereal disease from victim; prosecution presented no evidence to foreclose defendant's theory). Furthermore, we are guided by our ruling in Marion , that
[t]he offer of proof [in support of introducing rape-shield evidence to the jury] need not be stated with complete precision or in unnecessary detail but it should state an evidentiary hypothesis underpinned by a sufficient statement of facts to warrant the conclusion or inference that the trier of fact is urged to adopt (,) .... (and) it ought to enable a reviewing court to act with reasonable confidence that the evidentiary hypothesis can be sustained and is not merely an enthusiastic advocate's overstated assumption.
Marion , 267 Ark. at 349, 590 S.W.2d at 290.
Applying these principles to the case at hand, the trial court's exclusion of evidence of the sexual nature of KV's and EP's relationship did not violate Mouton's right to present a complete defense. Mouton's theory was that the allegations against him were fabricated by McKinney, Pippenger, EP, and KV in retaliation after Mouton fired McKinney. Mouton argues that evidence of the sexual nature of KV's relationship with EP was necessary to show the extent to which KV was aligned with EP's interests. The State argues that the timeline of Mouton's theory is fatally flawed in terms of when the allegation was first made and when it was first reported to authorities. Pippenger reported the allegations to authorities when EP disclosed them to her after the Mouton-McKinney blowup, and EP had no contact with KV between learning about the blowup and disclosing the allegations to Pippenger. EP already knew of the allegations from when KV revealed them to her approximately one year prior. The State argues, therefore, that Mouton's theory (that the allegations were a fabricated retaliation for McKinney's firing) would garner no factual support from any sexually related bias between KV and EP since the motivation for the alleged McKinney-Pippenger-EP-KV alliance to retaliate did not exist until approximately one year after KV had disclosed the allegations to EP. In response, Mouton argues that the very notion that KV had previously disclosed the allegations to EP could be another made-up component of the McKinney-Pippenger-EP-KV alliance's retaliation.
This is where Mouton's evidentiary basis for probing into KV's and EP's past sexual relationship at trial fails. All the evidence in the record before us supports the conclusion that KV disclosed the allegations to EP while the two were dating, several months before the Mouton-McKinney blowup. The only actual evidence in the entire record that could suggest that this prior disclosure was never made is Mouton's testimony at trial generally denying that anything improper ever occurred between him and KV. This no more supplies "an evidentiary hypothesis underpinned by sufficient supporting facts" than would Mouton's plea of "not guilty," and it is therefore insufficient to establish a constitutional violation. Accordingly, Mouton's constitutional right to present a complete defense was not violated, Chapman's harmless-beyond-a-reasonable-doubt standard of review has not been triggered, and the trial court's decision on this question is affirmed.
V. State's Cross-Appeal
The State also appeals from the trial court's decision to exclude the testimony from Brittany Perry, who would have testified that she had a similar experience with Mouton nearly two decades before the trial in this case. We decline to address this issue because it constitutes an impermissible State appeal.
When resolution of the issue turns on facts unique to the case, the appeal is not one requiring interpretation of rules with widespread ramification; thus, it is not appealable by the State. State v. Aud , 351 Ark. 531, 95 S.W.3d 786 (2003) ; State v. Hulum , 349 Ark. 400, 78 S.W.3d 111 (2002) ; State v. Stephenson , 330 Ark. 594, 955 S.W.2d 518 (1997). Despite the State's assertions to the contrary, the trial court's decision on this issue is not properly characterized as a misguided interpretation of Arkansas's "pedophile exception" to Rule 404. Instead, this was a run-of-the-mill application of Rule 403, which this court reviews for a manifest abuse of discretion. Lard v. State , 2014 Ark. 1, at 7, 431 S.W.3d 249, 258. Here, the Rule 403 analysis would have turned upon the highly fact-specific circumstances of this case, including, but not limited to, the facts that the excluded testimony pertained to events that occurred nearly two decades before trial and that all the information gathered during the contemporaneous investigation had since been destroyed. Accordingly, review of this issue would serve no purpose outside the bounds of this particular case, and we therefore dismiss the State's cross-appeal.
Affirmed on direct appeal; dismissed on cross-appeal.
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KENNETH S. HIXSON, Judge
Appellant David Atherton and appellee Cynthia Hastings (formerly Atherton) were married in 2002 and were divorced by a decree entered on May 24, 2017. On appeal from the divorce decree, David argues that the trial court erred in determining that his business, Gate Operators Plus, Inc. (Gate Operators), has a value of $175,000. David contends that Cynthia presented no evidence as to the fair market value of the business and that the trial court's valuation was arbitrary. We affirm.
This case arose after David filed a complaint for divorce on August 8, 2016. Both before and during the marriage Cynthia was employed by Essick Air Products, Inc. Cynthia has a retirement account, and the marital portion of the account has a value of $122,000. David owns and operates Gate Operators, which he has owned since 2010. Gate Operators is a wholesale distributor of motors to operate gates, and David runs the business from an office he rents from a fence company. The parties acquired a home during the marriage. They have one child, who was born in 2005.
After these proceedings began, the parties stipulated to joint custody of the child, with neither party paying child support. The parties also reached an agreement regarding the division of their personal property. The remaining issues for trial pertained to the distribution of the parties' remaining assets, which consisted of Gate Operators, the marital home, and Cynthia's retirement account.
David testified at trial. During his testimony, he introduced an appraisal that valued the marital home at $280,000. Although David acknowledged that the house was in need of some repairs, he thought it was worth $280,000 as is. David introduced documentation that the principal balance owed on the mortgage was $126,000.
David also testified about his business, Gate Operators. He introduced the business's tax returns for the years 2013 through 2016. According to the tax returns, the business had a net loss of $21,593 in 2013; a net loss of $3619 in 2014; a net profit of $6298 in 2015; and a net profit of $14,474 in 2016. David testified that a December 31, 2016 balance sheet showed total equity in the business to be negative $3037.
David testified that the inventory of the business averages around $50,000, but that there is a loan against the inventory in an approximately equal amount. He further testified that in 2016 the business paid him a salary of $52,000. The business also paid for his cell phone, his gas and maintenance for his car and truck, and for some meals. The tax documents from 2016 showed these annual expenses to be $9400, $5300, and $2600.
David testified that personal relationships are important in his business, and that if he sold the business he would not be able to transfer his personal goodwill to the buyer. David stated that Cynthia thought the business was worth more than it actually is and that he was willing to give her the business for free. He stated that he wanted half of the equity in the marital home and half of the marital portion of Cynthia's retirement account, but that he was willing to give Cynthia the business with no offset related to those assets. He stated that, if he did that, he could start a new business based on his personal relationships and goodwill.
David was also questioned about financial statements he signed in 2015 and 2016, wherein David provided information about his assets in applying for bank loans. On each of these financial statements, David represented that Gate Operators was a nonmarketable security with a value of $375,000. David testified that he arrived at that figure with no advice from anyone else, including his accountant, and that it was "just basically a guess." David indicated that he had no idea what the true value of the business was but that he could not sell it for $375,000. He testified that he put an estimated value of $375,000 on the financial statements because he was told he "needed to have something there" for the loan documents. He further indicated that the $375,000 value was derived from his personal goodwill.
John Rogers, a retired CPA, testified that he prepared the tax returns for Gate Operators from 2010 through 2013. During that time, Mr. Rogers had the opportunity to review the assets and liabilities of the company. However, Mr. Rogers testified that he was not qualified to give an opinion as to the value of the company. Mr. Rogers did, however, give the opinion that the marketability of the business would be "just whatever you could sell the assets for and pay off the bills." Mr. Rogers indicated that the goodwill in Gate Operators was the personal goodwill of David Atherton, and that without David there would hardly be any goodwill left in the company.
Cynthia testified that the parties' marital home needed extensive repairs estimated at $30,000. Cynthia stated that, deducting the cost of repairs from the appraised value of $280,000, she thought the house was worth $250,000. Cynthia also stated that she had been paying on the mortgage since the parties' separation, and she requested a credit for the $9,000 reduction in principal.
Cynthia also gave testimony about David's business. She stated that she had no witness to offer an opinion on the value of the business and that David had never told her what he believed it was worth. Cynthia acknowledged that the only evidence she had as to the value of the business was the $375,000 estimated value listed by David as unmarketable security on the financial statements.
Cynthia also testified that David carried a lot of cash all the time, and that at one time he had $17,000 in cash in a safe. According to Cynthia, David told her that this was from doing cash jobs at work. She further stated that David often traded work for guns. Cynthia testified that David and his accountant always tried to show a loss on the business or as small a profit as possible, and she thought that the business made substantially more money than was indicated. Cynthia requested that she be awarded all of the equity in the home as well as all of her retirement account as an offset for her one-half interest in Gate Operators, which David could keep as sole owner.
In the divorce decree, the trial court made the following findings with respect to the valuation and distribution of the marital home, the business, and Cynthia's retirement account. After taking into account the substantial repairs needed, the trial court valued the marital home at $260,000. Because Cynthia had reduced the principal balance owed on the mortgage by $9000 since the parties' separation, the trial court deducted that amount and found the divisible value of the home to be $251,000 (less the $126,000 outstanding debt). With respect to the business, the trial court made these specific findings:
The parties own a marital business, Gate Operators Plus, Inc., in which Plaintiff [David] is the sole shareholder. Based upon testimony, it is difficult to place a value on the business. In reviewing the records provided, including tax returns, financial statements, and balance sheets, it appears that the business has much greater value than that stated by Plaintiff. Plaintiff asked the Court to determine that any value of the business is in terms of personal goodwill; however, this business is not a professional corporation and argument with regard to personal goodwill in nonprofessional corporations has been soundly rejected by the appellate courts of the State of Arkansas. The determination of the value of this business is further muddied by credible testimony that there are substantial cash assets that are taken in by the business and are not necessarily in the books. The value of the business is determined to be $175,000 when taking into consideration the cash assets, income, and benefits provided to Plaintiff beyond his salary.
Based on the undisputed documentation introduced at trial, the trial court found that the marital portion of Cynthia's retirement account had a value of $122,000.
Based on the property values determined by the trial court, the trial court awarded David the business as sole owner, and the trial court awarded Cynthia the marital home and her retirement account. In addition, the trial court ordered Cynthia to pay David $10,000, at which point David would execute a quitclaim deed releasing his interest in the marital home.
On appeal from the divorce decree, David argues that the valuation assigned to the business, Gate Operators, was not supported by the evidence presented. He notes that the four-year sample of tax returns for the business showed a loss in two of the four years, and only small profits of $6298 and $14,474 in the other two years. A December 31, 2016, balance sheet showed a total business equity of negative $3037. David further asserts that all of the business's inventory is secured by a loan used to purchase it. David relies on the testimony of Mr. Rogers, a retired CPA, who opined that the business had no value other than liquidation value.
David contends that the only evidence offered by Cynthia as to the value of the business was the $375,000 estimated value of the business as nonmarketable security, as indicated by David on his financial statements for bank loans. However, he asserts that this value was a product of his personal goodwill, which he claims is indivisible upon divorce. Moreover, he cites Cole v. Cole , 82 Ark. App. 47, 110 S.W.3d 310 (2003), where we held that Arkansas law requires the use of the "fair market value" standard for valuing businesses in a marital-property context. David submits that the estimated security associated with the business was "nonmarketable" as opposed to a "fair market value" as required by Arkansas law. David contends that the trial court's $175,000 valuation of the business was arbitrary and not supported by any facts, and therefore this case should be reversed and remanded.
On appeal, divorce cases are reviewed de novo. Taylor v. Taylor , 369 Ark. 31, 250 S.W.3d 232 (2007). With respect to division of property, we review the trial court's findings of fact and affirm them unless they are clearly erroneous. Id. This court will reverse the trial court's valuation of a business only if it is clearly erroneous. Miller v. Miller , 70 Ark. App. 64, 14 S.W.3d 903 (2000). A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been committed. Kelly v. Kelly , 2011 Ark. 259, 381 S.W.3d 817. We give due deference to the trial court's superior position to determine the credibility of witnesses and the weight to be given their testimony. Id.
Based on the evidence presented to the trial court, we conclude that it did not clearly err in finding Gate Operators to have a value of $175,000. The business's tax returns showed losses in 2013 and 2014, but showed increasing profits in 2015 and 2016, indicating that the business was growing and becoming more profitable. Moreover, the trial court found credible testimony that there were substantial cash assets taken in by the business that are not necessarily reflected in the financial documents. The trial court here was relying on and crediting Cynthia's testimony that David often did cash jobs, traded jobs for guns, and at one time had $17,000 in cash in a safe. In his testimony David acknowledged that in 2016, in addition to paying him a salary of $52,000, the company also covered his gasoline, vehicle maintenance, cell phone, and some meals. Clearly the business was providing income and benefits in excess of what was reflected on the tax returns. And although Mr. Rogers, the retired CPA, testified that he thought the marketability of the business was the value of the assets less the debts, he also testified that he was not qualified to give an opinion on the value of Gate Operators. And, at any rate, there is no indication that the trial court found Mr. Rogers credible.
David attempts to diminish his representations on two financial statements that the value of Gate Operators as a nonmarketable security was $375,000. However, this information provided by David, which was certified by his signature to be true, correct, and complete, bore some relation to the fair market value of the business and could be considered along with the other evidence in determining its value. Here, the trial court valued the business at $175,000, which was less than half of the value represented on David's financial statements, and on this record we cannot say this valuation was clearly erroneous.
Finally, we briefly address David's claim that any value assigned to the business was a result of his personal goodwill, which he claims cannot be divided upon divorce. First of all, we cannot ascertain any significant personal goodwill in a business such as this, which involves the selling of motors to operate gates, nor did the trial court find any. More importantly, the only case cited by David in support of this argument is Brave v. Brave , 2013 Ark. App. 542, 432 S.W.3d 42. However, that case was vacated by our supreme court in Brave v. Brave , 2014 Ark. 175, 433 S.W.3d 227, and therefore is of no precedential value and cannot be cited as authority. In our supreme court's opinion in Brave , the supreme court declined to answer the issue of whether personal goodwill could be found in the valuation of a nonprofessional business, as opposed to a professional business. So, although it is settled law that personal goodwill is not a proper consideration in dividing a professional practice or business upon divorce, see Wilson v. Wilson , 294 Ark. 194, 741 S.W.2d 640 (1987), this concept has not been extended by the supreme court to encompass a nonprofessional business such as the one involved here.
In conclusion, we hold that the trial court's $175,000 valuation of the parties' business was not clearly erroneous. Therefore, we affirm the divorce decree.
Affirmed.
Klappenbach and Glover, JJ., agree. | [
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RAYMOND R. ABRAMSON, Judge
A Garland County jury convicted Andrew Lee Jackson of two counts of rape and sentenced him to 40 years' imprisonment in the Arkansas Department of Correction (ADC) for each conviction, to be served consecutively. On appeal, Jackson does not challenge the sufficiency of the evidence to support his convictions. Rather, he argues that the circuit court erred by denying his request for a nonmodel jury instruction and by improperly limiting his cross-examination of Sergeant Michael Wright. We disagree and affirm.
During Jackson's trial, the jury heard evidence regarding the sexual relationships Jackson had with two teenaged girls, I.S. and her sister, M.S. I.S. was thirteen years old and M.S. was sixteen years old when Jackson, who was 28 years old at the time and the girls' youth pastor, began having sexual relations with them. Jackson's first point on appeal is that the circuit court erred when it denied his request for a jury instruction limiting the testimony of the forensic examiner, Tracy Childress. This argument is not preserved for our review. At trial, during a bench conference, Jackson's counsel admitted his failure to object stating, "Your Honor, I don't know how we fix it at this point, but I screwed up right then by not objecting to her talking about the credibility of the girls' statements." In his appellate brief, he writes, "[A]t that time it was too late for a contemporaneous objection to the improper testimony and counsel continued on with the case," and argues that because Childress made a direct statement that she believed the girls to be credible and that this testimony should not have been offered, he attempted to correct the problem by presenting the jury with a nonmodel jury instruction to direct the jurors to disregard Childress's testimony regarding the girls' credibility.
It is a well-settled general rule that we will not consider issues raised for the first time on appeal; a contemporaneous objection is required to preserve an issue for appeal. Davis v. State , 2011 Ark. App. 561. Our supreme court has recognized four narrow exceptions to the contemporaneous-objection rule, known as the Wicks exceptions. Wicks v. State , 270 Ark. 781, 606 S.W.2d 366 (1980) ; see also Springs v. State , 368 Ark. 256, 244 S.W.3d 683 (2006) ; Anderson v. State , 353 Ark. 384, 108 S.W.3d 592 (2003). These exceptions occur when (1) a circuit court, in a death-penalty case, fails to bring to the jury's attention a matter essential to its consideration of the death penalty itself; (2) a circuit court errs at a time when defense counsel has no knowledge of the error and thus no opportunity to object; (3) a circuit court should intervene on its own motion to correct a serious error; and (4) the admission or exclusion of evidence affects a defendant's substantial rights. Id. In the instant case, none of the Wicks exceptions apply; therefore, Jackson's first argument is not preserved for appeal.
Moreover, we need not reach this issue because Jackson's counsel also failed to preserve this argument because he did not proffer his proposed nonmodel jury instruction into the record. In order to preserve an objection to the circuit court's failure to give an instruction, Jackson's attorney must have made a proffer of the proposed instruction to the court. E.g. , Stewart v. State , 316 Ark. 153, 157, 870 S.W.2d 752, 755 (1994). That proffered instruction must be included in both the record and abstract to enable the appellate court to consider it. Id. at 158, 870 S.W.2d at 755. An instruction that is not contained in the record is not preserved and will not be addressed. Id. Here, the defense counsel did not proffer a nonmodel jury instruction, and the record does not contain a proposed nonmodel instruction. Accordingly, we do not address it.
In Jackson's second and final point on appeal, he contends that the circuit court abused its discretion when it improperly limited the cross-examination of the State's witness, Sergeant Michael Wright. Jackson's attorney attempted to impeach Sergeant Wright by cross-examining him regarding other child sex-abuse cases in which he had arrested other suspects. Specifically, Jackson's attorney sought to show that Sergeant Wright was biased against Jackson and others whom Sergeant Wright had arrested for child sex-abuse offenses in separate, unrelated cases. The State objected to the relevance of Sergeant Wright's arresting other people. The circuit court sustained the State's objection, and Jackson's counsel was prohibited from asking Sergeant Wright about unrelated cases. On appeal, Jackson avers that the circuit court abused its discretion. We disagree.
The decision to admit or exclude evidence is within the sound discretion of the circuit court, and appellate courts will not reverse that decision absent a manifest abuse of discretion. E.g. , Maiden v. State , 2014 Ark. 294, at 4, 438 S.W.3d 263, 268 ; see also Rodgers v. State , 360 Ark. 24, 27, 199 S.W.3d 625, 627 (2004) (appellate courts review matters concerning the scope of cross-examination under an abuse-of-discretion standard). The abuse-of-discretion standard does not simply require error in the circuit court's decision; rather, it requires that the lower court act improvidently, thoughtlessly, or without due consideration. E.g. , Maiden , 2014 Ark. 294, at 4, 438 S.W.3d at 268. Furthermore, we will not reverse an evidentiary ruling absent a showing of prejudice. Id.
Rule 611 of the Arkansas Rules of Evidence provides:
(b) Scope of Cross-Examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
Ark. R. Evid. 611(b) (2017).
The circuit 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. E.g. , Biggers v. State , 317 Ark. 414, 424, 878 S.W.2d 717, 722 (1994).
At trial, Sergeant Wright testified that on November 6, 2014, Kathy Finnegan, an investigator with the Arkansas State Police, Crimes Against Children Division (CACD), called him regarding allegations that had been made to the child-abuse hotline against Jackson. Sergeant Wright explained that when sexual-abuse allegations are reported, the criminal investigators (like him) work very closely with the CACD in an attempt to make the overall process easier for the victims. The criminal investigator focuses on the criminal matter, and the CACD investigates potential child maltreatment. The two units work together to maximize convenience so that the victims are not forced to repeatedly answer the same questions.
When questioned by the State on why child sex-abuse cases have merged into the multidisciplinary investigation process, Sergeant Wright responded:
[T]hese type of cases are real difficult from different standpoints. It's difficult on the investigator, especially if that investigator has children of his own. It can be very trying. And so as a result of that you have a lot of investigators that simply just do not like to work these type cases. But what we have found is that by taking a multidisciplinary approach we provide better services for these children and we also provide a better opportunity to present a good case and to bring those responsible to justice.
During cross-examination, the following exchange between Jackson's counsel and Sergeant Wright transpired:
MR. ETHRIDGE : Well, did you go look at this sectional where the allegation that Mr. Jackson had sex with I.S. on the same couch where his wife was sleeping?
SERGEANT WRIGHT : No, I did not. MR. ETHRIDGE : Is that because these cases really piss you off and you'd made up your mind?
SERGEANT WRIGHT : No, sir.
MR. ETHRIDGE : You've gotten warrants for other people to be arrested, haven't you?
SERGEANT WRIGHT : Yes.
MR. ETHRIDGE : Sometimes these cases go to trial?
SERGEANT WRIGHT : Yes.
MS. LAWRENCE : Objection, may we approach?
THE COURT : Come on up.
(Bench conference as follows:)
MS. LAWRENCE : I'm gonna object to relevance of arresting other people and other people going to trial. I don't see how that's relevant in this case.
MR. ETHRIDGE : Your Honor, he's testified that he's had twenty to twenty-five cases that have gone to trial. I think it's certainly reasonable for the jury to find out what may have happened in some of those cases.
THE COURT : In those cases?
MR. ETHRIDGE : Yes.
THE COURT : No. Sustained.
MR. ETHRIDGE : I don't understand the ruling.
THE COURT : Okay, well are you asking him about cases that are unrelated to this case? MR. ETHRIDGE : I'm not asking him about specific incidents. I'm asking him-eventually I'm going to ask him if people he's gotten warrants for have been found not guilty.
MS. LAWRENCE : That's not relevant.
THE COURT : You're gonna have to show me how that's relevant to this case.
MR. ETHRIDGE : Your Honor, I think it shows his bias as an investigator that he goes and gets warrants and not every case is-
THE COURT : Do you have a case to show me that he's done that?
MR. ETHRIDGE : Your Honor, I can think of two cases where he was the lead investigator.
THE COURT : Well I mean if you had those cases, that was something that you should have brought up to the Court before you asked the question.
This is not about that. This is a different case.
MR. ETHRIDGE : I understand that. I'm just asking about his past history, that he's had cases-he's had arrests and he's had trials and some of those trials have come out not guilty.
THE COURT : We're not going into past cases. That's sustained.
On appeal, Jackson maintains that he should have been allowed to call into question Sergeant Wright's bias against him under Rule 611 of the Arkansas Rules of Evidence. He asserts that when Sergeant Wright is involved in child sex-abuse cases, they "piss him off." Jackson argues that shows Wright's own personal bias against him and that this bias causes Wright to do "less than the appropriate level of police investigation because he allows his emotions to lead him instead of the facts of the case."
To support his argument, Jackson relies on Henderson v. State , 279 Ark. 435, 437, 652 S.W.2d 16, 18 (1983), for the general proposition that in Arkansas, a "full cross-examination" should be allowed in order to show bias. However, Henderson is distinguishable from the case at bar. The disputed testimony in that case was from Henderson's admitted accomplice who was questioned about the type of deal he was getting from the State in exchange for his testimony against Henderson. See Henderson , 279 Ark. at 438, 652 S.W.2d at 18. Our supreme court held that the testimony should have been allowed because it was a direct evidentiary link between Henderson and the murders. See id. There was no such direct link here. The circuit court is allowed wide latitude to impose reasonable limits on cross-examination based on concerns about harassment, prejudice, waste of time, confusion of issues, or interrogation that is repetitive or only marginally relevant. E.g. , Green v. State , 2018 Ark. App. 38, at 2, 2018 WL 523256.
Defense counsel's attempt to cross-examine Sergeant Wright about prior child sex-abuse cases that he investigated in which arrest warrants were issued for people who were ultimately found not guilty of the charges risked jury confusion as to Jackson's charges. It would only call for speculation as to the reasons that might have yielded any acquittals in those prior cases that were completely unrelated to whether Jackson had raped I.S. and M.S. Furthermore, the fact that not every single person Sergeant Wright arrested was found guilty of a crime is not even marginally relevant to the question of whether Jackson raped I.S. and M.S.
Additionally, Jackson's attempt to cast Sergeant Wright in a negative light because cases involving sexual abuse of children "piss him off" does not equate to a bias against Jackson. There is no evidence in the record before us that Sergeant Wright ever acted improperly in his role as investigator in this case or any other case in which he was involved. We hold that the circuit court did not abuse its discretion in denying cross-examination of Sergeant Wright regarding arrest warrants in other cases and individuals who were wholly unrelated to the trial at hand. Accordingly, we affirm.
Affirmed.
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PHILLIP T. WHITEAKER, Judge
Brian Skender appeals a Jefferson County Circuit Court order dismissing with prejudice his Federal Employers' Liability Act (FELA) claim against Union Pacific Railroad Company (UPRR). He claims that the trial court erred in determining that equitable tolling did not apply to save his claim from the expiration of the statute of limitations. We affirm.
This is the third time this case is before us on appeal. The underlying facts are not complicated. On July 11, 2012, Skender, a UPRR employee, was injured while working at a UPRR repair track in Pine Bluff, Arkansas. From this injury, Skender filed separate causes of action under FELA. He timely filed and served his first FELA cause of action against UPRR on October 25, 2013. (35CV-13-532-2). After the statute of limitations had run, UPRR filed a motion to dismiss, asserting that the summons issued with the complaint was fatally deficient. Skender denied that the summons was deficient but alternatively contended that any deficiency was cured by application of the Arkansas savings statute or the doctrine of equitable tolling. On October 19, 2015, the trial court granted UPRR's motion to dismiss, finding the summons was fatally deficient. The trial court, however, ordered the dismissal to be without prejudice based on the application of the Arkansas savings statute as set forth in Clouse v. Tu , 101 Ark. App. 260, 274 S.W.3d 344 (2008). Because the trial court ruled that the savings statute was applicable to save Skender's claim, it did not address Skender's equitable-tolling claim at that time.
UPRR filed the initial and first appeal with our court, alleging that the October 19, 2015 order of dismissal should have been with prejudice, contending that the Arkansas savings statute was inapplicable to FELA actions. In a cross-appeal, Skender challenged the trial court's determination that the summons issued in the case was fatally deficient. While the appeal was pending, Skender filed his second FELA cause of action. (35CV-15-586-2).
In the first appeal, we affirmed the trial court's determination that the original summons in 35CV-13-532-2 was fatally deficient. We also agreed with UPRR's contention that the trial court erred in applying the Arkansas savings statute to the FELA action. However, we remanded for the trial court to make the requisite findings on whether equitable tolling was available to suspend the statute and whether dismissal with or without prejudice was appropriate. Union Pac. R.R. Co. v. Skender , 2016 Ark. App. 206, 489 S.W.3d 176.
On remand, the trial court found that Skender had not pursued his rights diligently and had not shown any extraordinary circumstance that prevented a timely filing. As such, the trial court held that Skender had failed to prove that he was entitled to equitable tolling of his claim. Accordingly, the trial court dismissed both complaints (35CV-13-532-2 and 35CV-15-586-2) with prejudice. Skender appealed both dismissals, arguing that the trial court erred in determining that equitable tolling did not apply. In this second appeal, we were unable to reach the merits of Skender's arguments because the briefing was deficient, and we ordered a supplemental addendum. Skender v. Union Pac. R.R. Co. , 2017 Ark. App. 649, 2017 WL 5762317. Skender has complied with our addendum directives, and we now address the merits of his appeal.
Skender asserts that equitable tolling should apply to save his claim. Citing Burnett v. New York Central Railroad Co. , 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965), and Glus v. Brooklyn Eastern District Terminal , 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959), he contends that equitable tolling is appropriate when a plaintiff timely files an otherwise defective pleading or when the plaintiff has been induced or tricked by the opposing party to allow the filing deadline to pass. He maintains that he timely filed a pleading that was only later determined to be defective and that he acted with proper diligence in pursuing his claim for damages pursuant to FELA. He further contends that UPRR was aware during the limitations period that he was actively pursuing his claim and that, as a result, the policy underlying the implementation of the statute of limitations is not violated by equitable tolling.
The trial court found, however, that Skender had not acted diligently in pursuing his claim. The trial court found that UPRR timely answered Skender's complaint in December 2015, asserting the defenses of "insufficiency of process" and "insufficiency of service of process"; yet Skender never sought to clarify UPRR's insufficient service-of-process assertions and took no further action on the case until UPRR filed its motion to dismiss over a year and a half later. The trial court further found that Skender undertook no discovery of his claims and did not respond to UPRR's discovery requests until after UPRR was forced to file a motion to compel. Skender does not refute these findings. Therefore, we find his claim that he acted with proper diligence in pursuing his claim for damages unpersuasive. Under these facts, equitable tolling does not apply, and we affirm the trial court's dismissal of his FELA actions with prejudice.
Affirmed.
Abramson and Virden, JJ., agree.
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BRANDON J. HARRISON, Judge
Connie Burke appeals the opinion of the Arkansas Workers' Compensation Commission (Commission) that affirmed and adopted the opinion of the administrative law judge (ALJ) finding that she had not proved entitlement to benefits under Ark. Code Ann. § 11-9-505(a) (Repl. 2012). We affirm.
Burke, an employee of the Arkansas Department of Correction (ADC), sustained compensable injuries to her knees and spine on 28 February 2015 after she fell while going up a flight of stairs. Burke was released by Dr. Justin Seale for her spinal injury on 19 August 2015 and released by Dr. Eric Gordon for her knee injuries on 1 September 2015. ADC paid all appropriate medical and related expenses and temporary total disability (TTD) benefits through 1 September 2015.
In January 2017, the ALJ convened a hearing to determine Burke's entitlement to benefits under Ark. Code Ann. § 11-9-505(a), which provides:
Any employer who without reasonable cause refuses to return an employee who is injured in the course of employment to work, where suitable employment is available within the employee's physical and mental limitations, upon order of the Workers' Compensation Commission, and in addition to other benefits, shall be liable to pay to the employee the difference between benefits received and the average weekly wages lost during the period of the refusal, for a period not exceeding one (1) year.
Before § 11-9-505(a) applies, the employee must prove by a preponderance of the evidence that (1) she sustained a compensable injury; (2) suitable employment which is within her physical and mental limitations is available with the employer; (3) the employer has refused to return her to work; and (4) the employer's refusal to return her to work is without reasonable cause. Clayton Kidd Logging Co. v. McGee , 77 Ark. App. 226, 72 S.W.3d 557 (2002). Burke contended that she was entitled to benefits under this statute as of 2 September 2015.
Documentary evidence introduced at the hearing showed that, on 19 May 2015, Kimyata Randall, a human resources assistant at ADC, sent an email to her supervisors that stated the following: "Be advised that Connie Burke exhausts her leave on 5-21-2015. I have spoken with her and she has advised that she will not be able to return into security." A second email from Randall, dated 2 June 2015, stated:
Please be advised that I spoke with Connie Burke today. She has again advised that she will not be returning. She did confirm that she received the Essential Job function form that you requested that I send to her. However, she has declined to return it and has asked that we go ahead and terminate her.
Three days later, on June 5, ADC's warden sent Burke a termination letter that stated the following:
As you know, the Family Medical and Leave Act allow[s] "eligible" employees to take job protected, unpaid leave or to substitute appropriate leave for up to a total of 12 weeks. Because you were placed on leave without pay effective 5/12/2015, [you have] exhausted your 12 weeks of FMLA effective June 2, 2015 [and] you no longer have the umbrella of job protection or restoration as defined by FMLA.
In view of the aforementioned information, I am advising you that your employment with the Arkansas Department of Correction has been terminated effective 6/6/2015.
Upon recovery and being able to perform all the essential job functions of your present position (Correctional Officer) or any position that you apply for and have no other disqualifying factors, you will be considered for rehire.
Burke testified and confirmed that when she was terminated, she was still under her doctors' care and under restrictions from work. Burke did not recall ever having a conversation, by email or otherwise, with Kimyata Randall. She also agreed that after she was released by her doctors to return to work, she was not contacted by ADC and asked to return to work. She explained that she had remained off work since being released by her physicians. She also said that she had looked on the Arkansas state-jobs website since then and that it appeared that there were jobs available within her restrictions.
On cross-examination, Burke said that she knew she could not return to security work after her injury. She denied discussing the status of her employment with anyone at ADC before receiving the termination letter. Counsel next asked her about the termination letter:
COUNSEL : I wanted to ask you, in this letter the next to last paragraph, I wanted to ask you if you remember reading this, but it talks about upon your recovery and being able to perform essential job functions of your present position or any position that you apply for, you could be considered for rehire. Did you read that? BURKE : Yes, sir.
COUNSEL : Okay. And did you understand that-when you read that in this termination letter, can I ask you what did you understand that to mean for you?
BURKE : What do you mean, what did I-
COUNSEL : Well, that paragraph about your eligibility for rehire at ADC, when you read that paragraph, what did you understand that to mean as far as you're concerned?
BURKE : I mean, that I couldn't do security, but they should have offered me something in the office or something. That's what they usually do.
COUNSEL : So your understanding was if you couldn't go back to security work, that they should offer you some other kind of work, correct?
BURKE : Yes, sir.
COUNSEL : And did you ever discuss that with anybody at ADC, that you can remember, about some other kind of work after you got this termination letter?
BURKE : No, sir.
COUNSEL : So was it your understanding that you could wait and let them contact you about coming back to work?
BURKE : Yes, sir.
Burke denied ever receiving an essential-job-function form. She also confirmed that after she stopped receiving workers'-compensation benefits in September 2015, she began receiving unemployment benefits. She agreed that she had never contacted ADC about going back to work or reapplying for a job.
Russell Barker, a human-resources administrator at ADC, confirmed that he had asked Randall to send Burke an "essential job function," which is a form that must be completed by an employee's physician and that informs the employer whether the employee's disability is permanent or temporary. He also confirmed that since Burke was terminated, she had not applied for any positions at ADC.
Randall testified that she had communicated with Burke through email correspondence and telephone calls while Burke was out on family medical leave. She confirmed that Burke said she was not going to return the essential-job-function form. According to Randall, she advised Burke that there was nothing else the ADC could do for her without the form, and Burke said, "Go ahead and terminate me, I'm not coming back." Randall explained that, after termination, it would be up to the employee to ask about coming back to work.
On redirect examination, Burke again denied ever speaking to Randall or ever telling her or anyone else at ADC that she wanted to be terminated. She said that she had never received the essential-job-function form and that she had not declined to return any paperwork to ADC. On recross, she acknowledged that she had received FMLA paperwork from ADC, which she gave to her doctor, and that she did not know if the essential-job-function form was included in that paperwork. When asked by the ALJ if she could testify whether there was any work within her restrictions available while she was still under her doctors' care, Burke stated, "I can't say under oath that they had positions at that time."
At the close of the hearing, the ALJ encouraged the parties to submit letter briefs "as to how the facts in this instant case apply with regard to entitlement to 505 benefits." In its letter brief, ADC argued that Burke had not met her burden of proof for entitlement to benefits under the statute and that "[t]he facts of this case do not describe a situation where the employer has refused to return the injured employee to work." On the contrary, ADC argued, "it was the claimant's choice not to return to her security position, to request that her employment be terminated, and it was her choice not to pursue further employment with the respondent-employer."
In Burke's letter brief, she again denied ever requesting to be terminated and argued that this case was "a virtual mirror image" of another recent workers'-compensation case, Jennings v. Arkansas Department of Correction , Claim No. G504374, 2016 WL 6584750 (Ark. Workers' Comp. Comm'n, Oct. 25, 2016). In that case, Jennings, a correctional officer, sustained a compensable injury to her knee, and ADC paid for medical treatment and TTD benefits. Jennings returned to restricted desk work while still under her doctor's care and performed those duties for a month, but was then rotated to a patrol position that she was unable to perform. Her doctor prescribed "sitting duty" at work, but ADC told Jennings that there were no light-duty positions available and terminated her employment. Jennings was told that once she recovered, she could reapply and would be considered for rehire. After she was released to work without restrictions, she demanded that she be reinstated to her previous position, but ADC refused to reinstate her. Under those facts, the Commission found that Jennings was entitled to benefits pursuant to § 11-9-505. Burke argued that, in both cases, "the employer had suitable work available within the employee's restrictions and yet the employer refused to return the injured employee to work."
In a March 2017 opinion, the ALJ found that Burke had failed to prove that she is entitled to additional compensation pursuant to Ark. Code Ann. § 11-9-505(a). The ALJ stated that the record was "replete with inconsistencies and contradictions" and that Burke's claim "turns almost entirely upon the claimant's credibility." The ALJ noted that Burke had initially claimed that she reported back to work, could not pass the employment physical, and was not offered any light-duty employment, at which time she requested additional TTD benefits; at the hearing, however, Burke dismissed any claim for additional TTD benefits and instead claimed entitlement to benefits under § 11-9-505. The ALJ found that Burke had proved that she sustained a compensable injury, but she had failed to prove that there was suitable employment within her physical and mental limitations available with the employer, that the employer had refused to return her to work, and that the employer's refusal to return her to work was without reasonable cause. The ALJ concluded that Burke was not credible:
The claimant offered no credible evidence whatsoever that employment, suitable to her physical and mental limitations, was available with the employer. In fact, the claimant made no effort whatsoever at returning to work for the employer herein. The employer did not refuse to return the claimant to work. In addition, although the claimant was released to return to work without restrictions, the credible evidence reflects that the claimant had either no intention or desire to return to work as a correctional officer.
....
In claimant's brief, submitted subsequent to the hearing, the claimant argues that this case is a virtual image of Jennings v. Arkansas Department of Correction , AWCC # G504734, Full Commission Opinion filed October 25, 2016. In my opinion, the claims are clearly distinguishable. More specifically, in the Jennings claim, there was credible testimony that the claimant performed a number of jobs with the employer, and, that there were jobs available within her physical restrictions. In the instant claim, there is no such credible testimony, and, further, the claimant was released without any physical restrictions and made no credible effort to return to work.
....
The claimant acknowledged receiving a termination notice while continuing to receive temporary total disability with instructions that upon recovery, and being able to perform all of her essential job functions, she could apply for her prior position or other positions within the Agency and the claimant made no efforts whatsoever to return to work for the employer herein. Rather than reapply for any job with the employer, the claimant applied for and received unemployment compensation. In my opinion, the claimant has failed to establish that she is entitled to benefits pursuant to Ark. Code Ann. § 11-9-505.
Burke appealed to the full Commission, and in an August 2017 opinion, the Commission affirmed and adopted the ALJ's opinion as its own. 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. Burke has now timely appealed to this court.
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 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; if so, this court must affirm. Parker v. Comcast Cable Corp. , 100 Ark. App. 400, 269 S.W.3d 391 (2007).
To reiterate, our case law provides that before Ark. Code Ann. § 11-9-505(a) applies, the employee must prove by a preponderance of the evidence that (1) she sustained a compensable injury; (2) suitable employment which is within her physical and mental limitations is available with the employer; (3) the employer has refused to return her to work; and (4) the employer's refusal to return her to work is without reasonable cause. Clayton Kidd Logging Co. , supra. The Commission found that Burke had met the first requirement but failed to prove that there was suitable employment within her physical and mental limitations available with the employer, that the employer had refused to return her to work, and that the employer's refusal to return her to work was without reasonable cause.
On appeal, Burke contends that "the facts pertinent to a 505 determination are not in dispute" and that "[t]here were jobs available within her restrictions and the Respondents did not offer her employment after she was released to full duty." She also again asserts that the facts of this case are virtually identical to Jennings , supra. She argues that, like Jennings, she was terminated "while she was on light duty and was never offered any work following her full-duty release."
Burke's argument falters given the Commission's findings that she was not a credible witness and that there was no credible testimony that there were jobs available within her physical restrictions. The Commission also found that Burke was released without any physical restrictions and made no credible effort to return to work. Without any attempt to return to work, it cannot be said that ADC refused to return her to work. This highlights the primary difference between this case and Jennings : in Jennings , the claimant requested to return to work and her employer denied her request. See Ark. Dep't of Corr. v. Jennings , 2017 Ark. App. 446, 526 S.W.3d 924. Here, the Commission found that no credible evidence established that Burke requested or attempted to return to work.
The Commission determines credibility, weighs the evidence, and resolves conflicts. See Godwin v. Garland Cty. Landfill , 2016 Ark. App. 498, 504 S.W.3d 660. It is not required to believe the testimony of any witness but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Sandeford v. United Parcel Serv., Inc. , 2014 Ark. App. 228, 2014 WL 1396660. This court does not weigh the evidence and judge the credibility of the witnesses. Id. Considering this standard, we hold that the Commission's decision that Burke failed to prove an entitlement to benefits under § 11-9-505(a) is supported by substantial evidence and affirm.
Affirmed.
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BRANDON J. HARRISON, Judge
The issue here is whether methamphetamine was present in Mark Norris's body when he was injured at work so that his employer and its insurance carrier are entitled to receive a rebuttable presumption that the workplace injury was substantially occasioned by the drug. The Arkansas Workers' Compensation Commission (Commission) answered no, and Norris's employer and its insurance carrier appeal that decision. We hold that substantial evidence supports the Commission's decision. We also affirm the Commission's award of temporary total-disability (TTD) benefits.
I. The Accident and Its Aftermath
National Transit Staffing employed Norris as a truck driver and tasked him to carry a load from a Van Buren nursery to a St. Louis facility on 4 June 2015. Norris injured himself at the nursery loading dock during the early morning hours. His left hand apparently became wedged between two plates in a hydraulic lift. Within a few minutes of the accident, Norris freed himself, phoned a friend for directions to a nearby hospital, and drove himself there. Medical personnel at Summit Hospital in Van Buren evaluated Norris, concluded that repairing his crushed-thumb injury was beyond their capabilities, and sent him by ambulance to UAMS in Little Rock. Medical records from the Van Buren hospital visit noted that his thumb was crushed between two metal plates. The records also report that Norris appeared to be uncomfortable and that he was "anxious, appropriate for age, cooperative." At 4:26 a.m., Norris's pain was a "10 out of 10." At 4:41 a.m., Norris was given Dilaudid (a strong pain medicine) and Zofran (anti-nausea medicine) intravenously. Norris left the emergency department around 7:20 a.m.
The paramedic report from the ambulance trip between Van Buren and Little Rock stated that Norris had reported that he caught his thumb between two pieces of sheet rock, and the doctor reported that the bones in Norris's thumb were shattered. The paramedic report also stated that Norris reported his pain level to be "at 2 at this time" and that he had been given Dilaudid and Zofran before the ambulance arrived in Little Rock. While traveling to UAMS, Norris started experiencing pain that was 10 on a scale of 1 to 10. He was given fentanyl (a strong opioid), which reduced his pain to 2 out of 10.
Once at UAMS, Norris was evaluated and given morphine and Zofran at 10:34 a.m. At 10:54 a.m., Norris consented to surgery, which was done that day around 1:00 p.m., using a regional anesthesia. Norris was discharged the next day.
UAMS emergency-department physician Dr. Delany L. Kinchen noted, "Psychiatric: He has a normal mood and affect. Judgment and thought content normal. Very bizarre affect." Dr. Theresa O. Wyrick, an orthopedic surgeon who amputated Norris's thumb, stated in her preoperative and postoperative diagnoses that Norris suffered "[a]cute methamphetamine use." Other records from UAMS indicate that Norris admitted "recreational drug use, methamphetamine every month or two" and that "[p]atient states he smoked and injected 'go fast' (methamphetamine) within the last 24 hours-he appears somewhat intoxicated."
While recovering back home in Huntington, Arkansas, Norris signed a notice-of-injury form on 10 June 2015 and wrote this account of the accident:
It was 2 a.m. dark behind little truck went to close rear door, kept open to get air to plants. I hit button on rear truck tail gate lift thing snapped so quick chain got left hand pinned it till I could get it loose.
National Transit Staffing and its insurance carrier initially paid a short period of temporary total-disability benefits and medical treatment before disputing the claim entirely.
During the administrative hearing on the disputed claim, Norris described what happened in the emergency room this way:
Oh, the first thing off the bat, they cut off the glove. And then when, you know my thumb fell out, it was all exploded and in pieces. You could see like the bones in your hand because it was all cut open. They just immediately started giving me, I guess, pain medicine.
He described being in and out of consciousness during the ambulance ride to Little Rock. He remembered "bit and pieces" of the discussions he had with the anesthesiologist who asked him about his drug use because "you could have a heart attack and stuff." He did not recall telling a doctor that he had used methamphetamine. According to Norris, he was "so delirious and just in and out so much." Norris denied using methamphetamine within a week of the accident.
On cross-examination, the following colloquy occurred:
DEFENSE COUNSEL : So how long have you been doing methamphetamine, Mr. Norris?
NORRIS : Like I told you the last time, gosh, I've partied a few times a year. I am not quite sure.
DEFENSE COUNSEL : Before this accident happened, you had been a methamphetamine user; had you not?
NORRIS : Yes, I have done it, yes.
DEFENSE COUNSEL : But on this particular night, you are saying that you did not use it, correct?
NORRIS : Yes.
....
DEFENSE COUNSEL : [Y]ou told the anesthesiologist that you used go-fast meth, that you both smoked it and injected it within 24 hours. You told him that, didn't you, sir?
NORRIS : I don't remember.
....
DEFENSE COUNSEL : I asked you at your deposition why you would use methamphetamine and you told me, did you not, sir, because it would make you feel awake? Is that a fair statement?
NORRIS : Yes.
DEFENSE COUNSEL : Also, it would make you go fast. Isn't that also true?
NORRIS : Yes, it is possible.
....
DEFENSE COUNSEL : And you told me that when you used meth that you could definitely feel its effects for six to eight hours; is that correct?
NORRIS : Possibly, yes.
DEFENSE COUNSEL : So what you did on this particular evening, isn't it true, Mr. Norris, that you used some meth anticipating you were going to have a six-hour drive to St. Louis and you did it before you went to the Parka Farm to pick up the truck; isn't that true? NORRIS : No, I don't think so.
Norris's brother, Luke, testified that Norris called him the morning the accident happened. He thought Norris was playing a joke on him about his thumb because he sounded drunk or drugged. Eventually Luke realized that Norris was serious, so he called National Transit Staffing and told them that Norris wouldn't make his shift because he lost his thumb and "they've got him on an IV and they are going down to Little Rock to check it out." Luke denied knowing that his brother had ever used methamphetamine.
While being questioned about something Norris had said in his deposition, Norris replied yes to the question: "You are asking this Judge to believe that you told the anesthesiologist at UAMS about some gathering you had been at three days before with other friends where they were doing meth and that is the story that you are asking this Judge to believe today?" He also agreed with the statement, "[Y]ou have no idea how the history got in there about doing go-fast meth, not only smoking it, but injecting it within 24 hours? You have no idea how that history got in there."
II. The Commission's Decision
The Commission found that the June 4 accident was not substantially occasioned by the use of illegal drugs. Part of that decision touches a statutory-presumption issue, which is that because the employer did not establish "the presence of" illegal drugs in Norris's body, the rebuttable statutory presumption was not triggered. The crux of our dissenting colleagues' point is that the Commission erred in failing to apply the presumption and shift the burden to Norris to establish that the presence of methamphetamine was not a sufficient causal factor in the work injury.
The Commission acknowledged Norris's testimony that he had occasionally used methamphetamine before the injury. Norris was an experienced driver for National Transit Staffing, and the record does not show any previous indication that drug use had affected his work or that he had been tested or disciplined for drug use. The Commission noted that Norris had the presence of mind to obtain directions and drive himself to the nearest hospital. The medical providers at Summit Medical Center did not report any symptoms of intoxication from alleged methamphetamine use at the time of the accident, and the medical records corroborated Norris's side of the story.
The Commission also noted that the initial medical reports at UAMS corroborated Norris's testimony: "Pt. here for crushing injury by metal object (tail gate to back of truck) to left hand onset 0300 this morning." And it reasoned that if Norris really had exhibited a "bizarre affect" the morning of June 4, then it could have "easily" been related to the postinjury pain medications administered-which included fentanyl and morphine-and Zofran, an anti-nausea medication. It concluded that there was "no probative evidence demonstrating that claimant's alleged 'bizarre affect' was causally related to methamphetamine use." No urine specimen, blood sample, or hair-follicle test was collected, so no chemical analysis supported Dr. Wyrick's "uncorroborated diagnosis of [a]cute methamphetamine use." The Commission also found that no physical evidence corroborated Dr. Wyrick's diagnosis of acute methamphetamine use. While acknowledging certain statements in UAMS medical records-"Patient states he smoked and injected 'go fast' (methamphetamine) within the last 24 hours" and "[Norris] admits to doing methamphetamine within the last 24 hours to the anesthesiologist. He seems to be acutely intoxicated in our estimation related to that"-the Commission did not credit them. "The claimant expressly denied having methamphetamine in his system at the time of the accident, and there is no substantive evidence of record contradicting the claimant's testimony other than hearsay notes entered at UAMS."
The Commission awarded Norris medical-treatment benefits, finding that he proved he sustained a compensable injury, by medical evidence supported by objective findings, including a crush injury and degloving to the bone. It further held that Norris had not returned to work since the compensable injury, and no treating physician had stated that he had reached the end of his healing period. The Commission therefore awarded Norris TTD benefits from 4 June 2015 to a date yet to be determined.
III. Presence of Illegal Drugs?
National Transit Staffing and Triangle Insurance Company's first two points on appeal are interrelated. They argue that the presence of illegal drugs was established when Norris admitted methamphetamine use and that the Commission mistakenly disregarded the "objective medical records" as hearsay, so the Commission erred by not applying the rebuttable presumption as a matter of law. They also argue that Norris's admission of methamphetamine use and the medical records establish the presence of methamphetamine and that the accident was substantially occasioned by the use of that drug. For these reasons, substantial evidence does not support the Commission's decision. Norris disagrees.
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. Prock v. Bull Shoals Boat Landing , 2014 Ark. 93, 431 S.W.3d 858. 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. When the evidence conflicts, the Commission resolves them and determines the facts. Id. Finally, we will not reverse the Commission's decision unless convinced that fair-minded persons, with the same facts before them, could not have reached the Commission's conclusions. Id.
Under Arkansas law, a workplace injury is not compensable if it is substantially occasioned by "the presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician's order." Ark. Code Ann. § 11-9-102(4)(B)(iv)(a) (Repl. 2012); ERC Contractor Yard & Sales v. Robertson , 335 Ark. 63, 71, 977 S.W.2d 212, 216 (1998) (explaining that "substantially occasioned" means that there must be a direct causal link between the use of alcohol or illegal drugs and the injury or accident). In other words, an employer has an affirmative defense against a benefit claim if it can prove by a preponderance of the evidence that an intoxicating (or misused) substance is to blame for the injury. Weld Rite, Inc. v. Dungan , 2012 Ark. App. 526, at 7, 423 S.W.3d 613, 617.
Our supreme court has interpreted § 11-9-102(4)(B)(iv) this way:
Once evidence is admitted showing that such drugs were in the claimant's system at the time of the accident, the burden of proof shifts to the claimant, requiring him to prove by a preponderance of the evidence that the accident was not substantially occasioned by intoxication from one of these substances.
Prock , 2014 Ark. 93, at 12, 431 S.W.3d at 867. A positive drug test triggers the rebuttable presumption. Id. The presumption can also arise, in the absence of a positive drug test, if the evidence adequately supports the inference that an employee had "[t]he presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician's orders" in his or her body when injured. Id. ; Ark. Code Ann. § 11-9-102(4)(B)(iv)(b) . The case Flowers v. Norman Oaks Constr. Co. , 341 Ark. 474, 17 S.W.3d 472 (2000) is an example of the second path to the presumption. There, the presence of alcohol was not detected using a chemical test; instead, the strong smell of alcohol and evidence of habitual drinking sufficed. Id.
Under decades-old law, the Commission decides how to credit and weigh testimony and other evidence when it is open to more than one interpretation. And when the Commission makes its determination, its findings have the force and effect of a jury verdict. Id. at 2, 423 S.W.3d at 615. This well-known legal principle of appellate review, which we employ as a court almost weekly, means that when the evidence conflicts-as it most assuredly does here-a finding by the Commission that drugs or alcohol were not present must be affirmed if it is supported by substantial evidence. Hunter Wasson Pulpwood v. Banks , 270 Ark. 404, 605 S.W.2d 753 (1980) (applying standard of review) ; Black v. Riverside Furniture Co. , 6 Ark. App. 370, 642 S.W.2d 338 (1982) (same).
Does substantial evidence support the Commission's decision that National Transit Staffing failed to establish the presence of an illegal drug (methamphetamine)? Yes. Our standard of review impels this conclusion. No direct evidence (like a chemical-assay result) put methamphetamine in Norris's system when the accident occurred. As the Commission noted, no urine, blood, or hair-follicle test was even administered. So the presumption was not triggered by a positive test, as has been the case before. E.g. , Prock , supra ; Hickey v. Gardisser Constr. , 2009 Ark. App. 725, at 2, 377 S.W.3d 259, 261 (drug screen tested positive for methamphetamine). A positive drug-screen result is not required to trigger the statutory presumption. The basic point is merely that the Commission lacked objective scientific evidence in this case that Norris had, in fact, ingested methamphetamine around the time the injury occurred.
Another clarification is warranted here so that we cannot be reasonably misunderstood. Just as we are not holding that a positive drug screen is required to trigger the statutory presumption, we are not holding that an employer must prove that an employee was "actually intoxicated" when an injury occurs, for want of a more precise phrase, before the presumption applies. That is not the law either. Our conclusion is solely based on the Commission's role as fact-finder and its authority to make reasonable inferences from the evidence before it. The Commission read the documentary and testimonial evidence that the parties presented and made a final decision on whether the employer sufficiently established "the presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician's order." Ark. Code Ann. § 11-9-102(4)(B)(iv)(b) . It bears repeating in this close case that the issue is not whether this court could have reached a different result; the legal standard probes only whether reasonable minds could have reached the Commission's conclusion. If so, then we affirm its decision. Jones v. Wal-Mart Stores, Inc. , 100 Ark. App. 17, 20, 262 S.W.3d 630, 633 (2007).
That is the case here. Yes, a conclusion contrary to the one the Commission made in this case is conceivable; the dissenters make this point well, as they reweigh and cross-examine all the evidence and credit this piece over that one and tally the total in favor of Norris's employer and against him. They step outside our standard of review, however, by doing so.
We agree with the dissent that this court is not a rubber stamp. But a close call on a conflicted record does not a rubber stamp make. Having considered the whole record and with our standard of review in mind, we hold that the Commission did not commit a reversible error when it decided that "the accident occurring June 4, 2015 was not substantially occasioned by the use of illegal drug." No drug or drug paraphernalia was found on Norris's person, for example. Nor was there any other tangible physical clue that he had ingested methamphetamine. The Commission could have reasonably read Norris's hearing testimony as a disavowal that he had ingested methamphetamine near the time he was injured. The Commission could have reasonably read the entire history of the medical trauma as tending not to establish that Norris had "the presence of" methamphetamine in his body when he was injured.
Our dissenting colleagues rightly note that Norris may have told medical personnel that he had used methamphetamine within twenty-four hours of the injury and that a regional pain block was used instead of general anesthesia, presumably because of that disclosure. But no medical personnel were questioned about what Norris supposedly said. The record, for example, contains no testimony by the surgeon or anesthesiologist.
The dissent correctly notes that the Commission was not bowled over by this part of the medical record, in part, because it was an "unsubstantiated hearsay report," in the Commission's words. The characterization of this medical evidence is more akin to a party admission or statements given while seeking medical treatment. Ark. R. Evid. 801(d)(2) & 803(4). But in the end, the Commission is not bound by technical or statutory rules of evidence. See Linthicum v. Mar-Bax Shirt Co. , 23 Ark. App. 26, 30, 741 S.W.2d 275, 277 (1987) ; Ark. Code Ann. § 11-9-705(a)(1). The core question is whether the Commission arbitrarily disregarded the evidence, and we do not believe that it did.
Again, the Commission did what it was supposed to do: it weighed and resolved conflicting evidence-the conflict being Norris's admission to his doctor that he had used methamphetamine within twenty-four hours of the accident (assuming it was in fact said and was accurately charted by medical personnel), and then later denying under oath during the administrative hearing that he had used the drug during a time frame that mattered to the case. It was up to the Commission to weigh and interpret the various medical records themselves, from the time of Norris's initial presentation up to and including his surgery.
The Commission did not err, which is to say that it did not act unreasonably, by concluding that "the evidence does not demonstrate the presence of any illegal drugs in the claimant's system at the time of the June 4, 2015 accidental injury." The Commission did not require the employer to prove that Norris was under the influence of drugs when injured. That would have been an error. It simply concluded, on a conflicted record, that National Transit Staffing failed to establish "the presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician's orders" as Ark. Code Ann. § 11-9-102(4)(B) requires be done by a preponderance of the evidence. Because we believe a reasonable mind could have reached that conclusion depending on how one weighs and credits all the evidence, we affirm the Commission's decision.
IV. Other Points
Appellants also argue that there is no substantial evidence to support the Commission's finding that Norris sustained his left-thumb injury at work because the only indication that Norris arrived at work that day was his own self-serving testimony. That a claimant's testimony is self-serving is not, for that reason alone, insufficient to support a finding in his or her favor. See Brantley v. Tyson Foods, Inc. , 48 Ark. App. 27, 31, 887 S.W.2d 543, 545 (1994). The Commission as fact-finder was entitled to credit Norris's testimony that he arrived at the nursery between 2:00 a.m. and 3:00 a.m., that he was preparing the truck for the run up to St. Louis, that he was lowering the lift to shut the truck door, and that his left thumb was crushed in the process. We see no error.
Second, the appellants argue that the Commission erred because it shifted the burden of proof to them to show that Norris's healing period had ended. Under Arkansas law, to receive TTD benefits 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. Ark. Dep't of Parks & Tourism v. Price , 2016 Ark. App. 109, at 10, 483 S.W.3d 320, 326. The Commission wrote:
After reviewing the entire record de novo, the Full Commission finds that the claimant proved he sustained a compensable injury. The record currently before us shows that the claimant has not returned to work since the June 4, 2015 compensable injury and no treating physician has opined that the claimant reached the end of his healing period. The Full Commission therefore finds that the claimant proved he was entitled to temporary total disability benefits beginning June 4, 2015 until a date yet to be determined.
We do not think the Commission shifted the burden of proof to the employer-carrier using these words. See High Capacity Prods. v. Moore , 61 Ark. App. 1, 8, 962 S.W.2d 831, 835 (1998). So we affirm on this subpoint, too.
As their final point, the appellants argue that the TTD award is not supported by substantial evidence. A temporary total disability occurs when a claimant is within his or her healing period and also suffers a total incapacity to earn wages. The healing period continues until the employee is restored as much as the permanent character of his or her injury will permit; the healing period ends when the underlying condition that caused the disability is stabilized and no additional treatment will improve the condition. Farmers Coop. v. Biles , 77 Ark. App. 1, 5, 69 S.W.3d 899, 902 (2002). 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.
On Norris's direct examination, this colloquy occurred:
COUNSEL : [S]ince being treated at UAMS and release, my understanding is that you saw Dr. James Kelly, the hand doctor here?
NORRIS : Yes, sir.
COUNSEL : And is he still treating you currently?
NORRIS : Yes. I finally got some Medicaid insurance and when he seen me, he told me the four options that I could do. COUNSEL : And one of them was taking off your big toe and putting it on your thumb?
NORRIS : My second toe.
COUNSEL : And is that something you are considering at this point?
NORRIS : Yes. I would like to get use of this hand again, you, for gripping purposes. It is kind of useless, you know.
COUNSEL : And you would like the Judge to find the claim compensable?
NORRIS : Yes.
COUNSEL : You would like to be paid for being off work?
NORRIS : Yes.
When asked if he had any contact with his employer after the accident, Norris said he went to its office, filled out paperwork, and took a drug test about six to seven days after he had been released from the hospital. He said that whether he still had a job never came up, that he was later told that the claim was disputed given his statement about methamphetamine, and that he had not worked anywhere since. There is no testimony that Norris was totally incapacitated from earning wages, though Norris testified that he had not worked anywhere since the accident.
This means he had to still be within a healing period to get TTD benefits. Ark. State Highway & Transp. Dep't v. Breshears , 271 Ark. 398, 398, 609 S.W.2d 81, 82 (Ark. Ct. App. 1980) (Although the claimant could work at a time before the end of his healing period, TTD benefits may continue until the healing period ends.). Regarding the healing period, as the Commission found, no doctor concluded that Norris had reached the end of his healing period or had reached maximum medical improvement. In fact, no doctor used the term "healing period." The Commission viewed this silence in Norris's favor. It also knew that Norris had testified that he was still being treated by Dr. Kelley for his injury and that he may need to have a toe placed on his hand to make his hand more useful. All this is "substantial evidence" that Norris was within his healing period when the hearing occurred, though it strains the term's definition. The TTD award is therefore affirmed.
Affirmed.
Klappenbach, Whiteaker, and Brown, JJ., agree.
Virden and Hixson, JJ., dissent. | [
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ROBERT J. GLADWIN, Judge
Appellant Jason Hargis appeals the August 8, 2017 opinion of the Arkansas Workers' Compensation Commission (Commission) that affirmed and adopted the administrative law judge's (ALJ's) February 15, 2017 decision finding that he failed to prove that he sustained a compensable injury to his lower back while employed by appellee Lovett Logging. Appellant argues that substantial evidence does not support the Commission's findings. We affirm.
I. Facts and Procedural History
Appellant worked for appellee Lovett Logging, a logging company operated by Jim Lovett and his son, Brian Lovett. His job duties included trimming, running a chain saw, and operating a skidder and boom. Appellant alleges that he suffered a compensable injury to his lower back at the end of his shift on May 9, 2016, when Brian asked him to move a boulder. Appellant claims that as he was picking up the boulder to pull it backwards, something in his back popped, and he could barely remain standing. Appellant maintains that he hobbled to a work truck and informed both Brian and coworker James Bradley that he had injured his back.
According to appellant, he left the logging woods with Brian and Bradley together in one truck as was customary. He claims that after they got into the truck he informed Brian that he was hurting and felt like he needed to see a doctor.
When appellant returned home after work, his girlfriend took him to the emergency room at Mercy Hospital in Waldron. His medical records contain a report from the emergency room dated May 9, 2016, indicating that appellant presented with a chief complaint of back pain and a history of the pain beginning while appellant was moving a heavy boulder at work that afternoon. Appellant was diagnosed with a lumbosacral strain and was prescribed medication; he was instructed to receive follow-up care with his primary physician; and an MRI scan was ordered. Appellant was also given a note taking him off work until May 16, 2016.
Appellant submits that after he was released from the emergency room he went to appellees' home-a duplex in which Brian lived in the downstairs portion while Jim lived in the upstairs portion. Appellant claims that he informed both Brian and Jim at that time that he had injured his back at work and gave appellees the off-work note. He maintains that Jim informed him that if he was off work for six days, he would be fired.
Based on that statement, appellant went to work the next day, May 10, 2016, completed his work shift, and at the end of the day got into the truck to go home with Brian and Bradley. Appellant admits he was upset that he had been informed he was going to be fired if he did not show up at work and that he told Brian this was wrong. Appellant further acknowledges that his anger got the better of him and that he used foul language in his discussion with Brian.
At the time of the alleged injury, appellant was wearing an ankle monitor because he had been convicted of DWI with a suspended license. He was to have the ankle monitor removed on May 11, 2016, after work so as not to interfere with his ability to work that day. However, according to Bradley, appellant informed Brian while they were in the truck leaving the work site on May 10, 2016, that he would be able to work for only a couple of hours the following day so that he could take off to go have the bracelet removed. Brian allegedly informed appellant that there was no need for him to come in and that he would have someone fill in for him.
Although the details are disputed, a physical altercation between appellant and Brian occurred at that time. Appellant claims that Brian pulled the truck over and headbutted him, which Brian denies, and the altercation involved the two men exchanging blows with their fists. Brian alleges that appellant began the altercation by calling him names, accusing him of firing him, and punching him.
Appellant did not work for appellee after that date, and when he was seen at the Mercy Hospital emergency room in Waldron on May 14, 2016, he was diagnosed with a lumbar strain and he was again advised to receive an MRI scan and establish care with a primary-care physician.
An MRI scan was performed on June 8, 2016, which revealed a right paracentral disc protrusion without spinal stenosis at the L5-S1 level. Following the MRI scan, appellant established care with Amanda English, APRN. English prescribed treatment in the form of medication and physical therapy. English again prescribed that same treatment in a report of July 18, 2016, but appellant did not undergo physical therapy due to a lack of funds.
Appellant filed this action alleging that he sustained a compensable injury to his back on May 9, 2016, arising out of and in the course of his employment with appellee employer. Specifically, he asserted that he hurt his back while moving a boulder at work and sought reasonable and necessary medical benefits as well as a statutory attorney's fee. Appellee controverted the claim in its entirety.
After a hearing on January 23, 2017, the ALJ filed an opinion on February 15, 2017, finding that appellant had failed to meet his burden of proving by a preponderance of the evidence that he suffered a compensable injury while working for appellee on May 9, 2016, and dismissed his claim. Appellant timely filed a notice of appeal, and on August 8, 2017, the Commission affirmed and adopted the ALJ's decision. Appellant timely filed a notice of appeal from that opinion on August 15, 2017.
II. Standard of Review and Applicable Law
Arkansas law permits the Commission to adopt the ALJ's opinion. White v. Butterball, LLC , 2018 Ark. App. 7, 538 S.W.3d 240 ; Stoker v. Thomas Randal Fowler, Inc. , 2017 Ark. App. 594, 533 S.W.3d 596. 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.
In White , we reiterated our standard of review in workers' compensation cases:
When the Commission denies benefits because a claimant has failed to meet his or her burden of proof, the substantial-evidence standard of review requires that we affirm if the Commission's decision displays a substantial basis for the denial of relief. On appeal, the appellate court views the evidence in the light most favorable to the Commission's decision and affirms the decision if it is supported by substantial evidence, which is evidence that a reasonable mind might accept as adequate to support a conclusion. The issue on review is not whether the evidence would have supported a contrary finding or whether we might have reached a different result; we affirm if reasonable minds could reach the Commission's conclusion. We defer to the Commission on issues involving credibility and the weight of the evidence.
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).
White , 2018 Ark. App. 7, at 4-5, 538 S.W.3d at 242-243 (internal citations omitted).
III. Discussion
Appellant submits that his medical evaluations and tests indicate objective findings of an injury on the day and within hours of the alleged boulder-lifting incident. Accordingly, he argues that the Commission erred in denying his claim. Appellant notes that the ALJ, in dismissing appellant's testimony, found that there was no medical evidence to support that appellant suffered an injury to his back as a result of the May 9, 2016 incident, without explaining why appellant would have gone to the emergency room and reported the injury. Although appellant acknowledges that the Commission has the responsibility to determine the credibility of the witnesses, he notes that the Commission failed to even discuss (1) why appellant would have gone to the emergency room on May 9, 2016, and provided a history of an injury to his back while moving a boulder; (2) that the medical records are consistent with appellant's testimony; (3) why appellant would obtain an off-work slip if he did not intend to provide the same to his employer; (4) why Jim and Brian clearly were aware of the injury on different dates and the fact that Brian, Bradley, and Jim all still have their jobs and work together; or (5) the significance of the fact that Jim and Brian are related. Appellant urges that these factors give reason to call into question their credibility and require that the Commission's decision be reversed and remanded.
Pursuant to appellant's own acknowledgment, this appeal is based solely on a question of credibility and the weight the Commission afforded various evidence and testimony. Appellant's credibility regarding the source of his lower-back injury was greatly diminished by evidence detailing how, on March 21, 2016, appellant was in a significant ATV accident while off work. As a result, appellant missed time from work, although the amount of time missed is disputed. Appellant testified that he missed a day or two of work, while his coworker Bradley and supervisor Brian testified that appellant was off work for two weeks.
Despite appellant's allegation that he injured his lower back at work approximately a month later on May 9, 2016, his account was directly contradicted by the testimony presented by the appellee. Brian testified before the ALJ that he did not instruct appellant to move a boulder on May 9, 2016, and further noted that there would have been no reason or need for appellant to move the rock described. He noted that if a rock did need to be moved, it would have been moved using heavy equipment like a skidder blade. Brian further testified that appellant never informed him that he injured his back. Bradley corroborated that testimony when he testified that he never saw appellant moving a rock and that appellant never reported to him that he had injured his back.
Jim Lovett testified that appellant did not come to his house and report a work injury on the evening of May 9, 2016. He explained that he first learned of appellant's alleged work-related back injury when the workers'-compensation claim was filed. Brian also testified that appellant did not come to see him on the evening of May 9, 2016, or provide him with a work-release note.
Brian also testified that on May 10, 2016, appellant did not appear to have any physical problems at work, did not complain about his back hurting, and at no time mentioned a work-related injury. Bradley similarly testified that on May 10, 2016, appellant did not appear to have any problems working and never mentioned anything about his alleged back injury.
After receiving testimony and reviewing the submitted exhibits, the ALJ determined that the consistent and corroborated testimony of appellee's witnesses was more credible than appellant's testimony. Appellant asks this court to assign weight to the evidence and substitute its judgment on the credibility of the witnesses for that of the Commission. But this court has routinely noted that "[o]nce the Commission has made its decision on issues of credibility, the appellate court is bound by that decision."
Yates v. Boar's Head Provisions Co. , 2017 Ark. App. 133, at 4, 514 S.W.3d 514, 516.
We 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).
The Commission specifically found that appellant did not present "sufficient credible evidence to establish compensability," believing instead the testimony of appellee's witnesses Jim, Brian, and Bradley, that appellant did not injure himself in the woods lifting a boulder on May 9, 2016, and did not complain of-or report-an injury or back pain. In making those findings, the Commission implicitly found that appellant was not credible and that his testimony could not be believed.
Contrary to appellant's claim that the Commission simply ignored the May 9, 2016 emergency-room report, we note that the Commission specifically addressed the report and rejected it, finding that it was not credible and could not carry appellant's burden. The only information in the emergency-room report to support appellant's claim that the cause of his injury was work related is his own self-serving report of history. Accordingly, the Commission was free to reject the evidentiary strength and value of this report based on appellant's lack of credibility. See Roberts , 102 Ark. App. at 289, 284 S.W.3d at 103.
It is appellant's burden to demonstrate that he sustained a compensable work-related injury rather than appellee's burden to provide an alternate non-work-related cause for appellant's back condition. But appellee did introduce evidence that appellant had been involved in a traumatic high-speed ATV accident that had put him off work for two weeks just over a month before May 9, 2016. Appellee additionally provided a potential reason why appellant would have gone to the emergency room and reported a work injury that day. Brian was specifically asked this question at the hearing and noted that appellant's motivation was "probably for drugs." Evidence to support this allegation includes appellant's own admission of a history of drug use and struggle for sobriety. He acknowledged that he was unable to stay sober after the ATV accident, as confirmed by drug tests performed at the emergency room confirming that he had smoked marijuana laced with methamphetamine and taken hydrocodone after the ATV accident.
By July 29, 2016, appellant reported to his primary-care physician that he was experiencing opioid dependence. Given the timing of the various events, the evidence before the Commission could have supported a finding that appellant went to the emergency room on May 9, 2016, seeking drugs and was willing to fabricate an injury to obtain them. The records indicate that appellant received injections of Toradol and Solu-Medrol and prescriptions for Robaxin, tramadol, and meloxicam from the emergency room on May 9, 2016.
The Commission also had before it contradictory evidence as to whether appellant had suffered prior back issues. Although appellant repeatedly denied any prior back issues, his medical records noted in multiple places that he had a history of spinal surgery. Similarly, appellant's medical records from the March 2016 emergency-room visit note that he denied illicit drug use, while testing positive for methamphetamine, amphetamine, opiates, and marijuana.
Appellant is required to prove a causal connection between his injury and the alleged May 9, 2016 boulder-lifting incident. Johnson , supra. Often, the primary evidence of causation for a claimant's injury consists of the claimant's own testimony. Id. Accordingly, this case rests on whether appellant's account was credible, which makes relevant the Commission's credibility findings.
Appellant is requesting that we reweigh the medical evidence and credibility findings made by the Commission. As previously stated, the Commission determines credibility, weighs the evidence, and resolves conflicts in medical testimony and evidence. Viewing the Commission's decision in the light most favorable to its findings, we hold that the Commission's decision is supported by substantial evidence.
Affirmed.
Murphy and Brown, JJ., agree. | [
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N. MARK KLAPPENBACH, Judge
Appellant Kevin Dunhoo appeals the June 12, 2017 sentencing order of the Poinsett County Circuit Court that revoked his probation. Appellant was charged with committing sexual indecency with a child, and he was placed on a six-year term of probation commencing in July 2013 during which he agreed to abide by certain conditions. The State filed a petition to revoke his probation in March 2017, alleging that appellant had violated conditions concerning (1) failing to notify law enforcement of any change of address and staying away from his residence without prior approval of law enforcement, (2) being untruthful with his probation officer about his internet and phone activities, and (3) failing to pay fines and fees as directed. At the conclusion of the probation-revocation hearing in June 2017, the trial court found that appellant had violated his conditions, revoked his probation, and sentenced him to 68 months in prison. This appeal followed. Appellant argues that the trial court erred in revoking his probation because "the underlying conditions were not present in the original order and the appellant had not willfully left his fines and fees unpaid." We affirm.
Pursuant to Arkansas Code Annotated section 16-93-308(d) (Repl. 2016), a trial court may revoke a defendant's probation at any time prior to the expiration of the period of probation if the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a term or condition of his probation. The State has the burden of proving that a condition of probation was violated. Jones v. State , 2013 Ark. App. 466, 2013 WL 4766701. The State need only show that the defendant committed one violation in order to sustain a revocation. Banks v. State , 2014 Ark. App. 639, 2014 WL 5842347. On appellate review, the trial court's findings are upheld unless they are clearly against the preponderance of the evidence. Stultz v. State , 92 Ark. App. 204, 212 S.W.3d 42 (2005). The appellate courts defer to the trial court's superior position to determine credibility and the weight to be accorded testimony. Baney v. State , 2017 Ark. App. 20, 510 S.W.3d 799.
Condition 13 of appellant's conditions of probation required the following of appellant:
You must be gainfully employed or enrolled as a student at all times, pay your share of household expenses, support your legal dependents and pay all court ordered child support. You must notify your supervising officer in advance of any change in your address, employment, education, telephone number or family status. Where circumstances make it impossible to give advance notice, you must give notice as soon as possible. Prior approval from a supervising office is required for you to change or stay away from your place of residence or to quit your employment. (Emphasis added.)
The State alleged in its revocation petition that appellant "stayed away from his approved address without notifying his officer and without changing his address pursuant to his registration requirements."
At the time appellant was placed on probation, the address he listed was his grandmother's. Probation Officer Lakieva Meadows began supervising appellant in May 2016. She testified that she went to appellant's grandmother's house for a home visit, and appellant's grandmother told her that she "put him out," he was "no longer staying there," and "he couldn't stay there because he refused to pay bills." When Meadows made contact with appellant to ask him about this, he told her that he was going back to his grandmother's, but she learned that he subsequently registered the Little Rock address where he was staying, 2811 South Battery Street. Meadows said that appellant had not reported this change to her until she asked him about it.
Testimony from a sheriff's office employee evidenced that appellant failed to pay toward his fines, fees, and costs and was behind. Meadows also provided testimony to show that appellant had been contacting underage females and sending photographs of his genitals to them.
Appellant testified that he was kicked out of his grandmother's house in December 2016. Appellant stated that he moved in with Shelly Williams in Little Rock. Appellant described Williams as a person whom his mother had dated and who looked after him like a "guardian." Appellant admitted that he did not report being kicked out of his grandmother's home before the probation officer visited his grandmother's house. Appellant testified that he had sporadically worked since 2013 but had recently obtained three jobs so that he could now pay what he owed, even though he had only made "small payments here and there" in the past. Appellant admitted that he had sent messages to girls but that this was before he learned that they were underage.
The trial court found appellant to be in violation of the conditions of his probation. The trial court stated from the bench:
[W]hy you had to change addresses and the fact that you had to change addresses is not relevant to this Court..... It was not registering your new address. That was wrong. You didn't register it with probation, and you didn't register it as a sex offender.
The trial court also found that, although it was less concerned about the fines, fees, and costs, it did not believe appellant had done anything toward making money. The trial court found, too, that appellant's behavior on social media made him appear to be "a pervert" and "a perpetrator."
On appeal, appellant argues that the trial court impermissibly revoked his probation regarding Condition 13 on the basis that he failed to register a change of address, which requirement applies to persons convicted of sex offenses. Appellant contends that this was not listed in his written conditions of probation, this would be a "special condition" that was not spelled out, and therefore this would be an unauthorized basis for revoking his probation. Appellant has failed to demonstrate clear error in the trial court's decision to revoke. The trial court specified that revocation was based, at least in part, on the fact that appellant failed to notify his probation officer of his change of address, regardless of whether that change was intended to be temporary or permanent. The record reveals the trial court's displeasure with appellant's failure to register his new address for sex-offender-registry purposes and for probation purposes.
Appellant also takes issue with the lack of evidence of the specific timing of when he left his grandmother's residence and the time that elapsed until he was asked by his probation officer about his change in address. However, appellant admittedly did not give advance notice of any intent to move or stay away from his grandmother's residence, and appellant never requested permission to stay away from his grandmother's residence. Appellant informed the probation officer of his change in residence only after her visit to his grandmother's house and after the probation officer's request for an explanation from him. In sum, appellant did not request prior approval, nor did he provide notice "as soon as possible." The trial court did not clearly err in finding appellant to be in violation of Condition 13 as alleged in the State's petition to revoke.
Because we hold that the trial court did not clearly err in revoking appellant's probation on the basis of the residence-related violation, we need not and do not address the other two bases for revocation alleged by the State. Only one violation is required in order to sustain the decision to revoke probation. See Kidwell v. State , 2017 Ark. App. 4, 511 S.W.3d 341 ; Peals v. State , 2015 Ark. App. 1, 453 S.W.3d 151.
Affirmed.
Glover and Hixson, JJ., agree.
Condition 12 of appellant's conditions of probation required that appellant "report as directed to a supervising officer and permit him or her to visit you in your residence, place of employment, or other property."
The trial court's file included the probation officer's typed violation report, which indicated that Meadows made the visit to appellant's grandmother's home on February 27, 2017. Appellant testified that he was kicked out of his grandmother's house in December 2016.
Condition 16 required appellant to "be truthful in all statements made to any supervising officer or any law enforcement officer." The State had alleged that "Dunhoo has not been truthful about his activities on the internet and via phone." Condition 18 required that appellant pay fines and costs totaling more than $1700 at the rate of $50 per month commencing in August 2013. The State had alleged that "Dunhoo has failed to pay his fines as directed. He owes $1720.00 plus any applicable fees." | [
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DAVID M. GLOVER, Judge
The Franklin County Circuit Court granted First United Methodist Church of Ozark's ("FUMC's") motion for summary judgment, denied appellant Shriners Hospitals for Children's ("Shriners'") cross-motion for summary judgment, and dismissed Shriners' complaint with prejudice. Shriners now appeals, arguing the circuit court erred in granting summary judgment to FUMC because it was not a good-faith purchaser for value; there was no agreement to constitute accord and satisfaction; and Shriners did not waive its claim to the property in question. We affirm the circuit court's decision.
This is the second time this appeal is before us. The facts are set forth in detail in Shriners Hospitals for Children v. First United Methodist Church of Ozark , 2016 Ark. App. 103, 483 S.W.3d 825 ( Shriners I ), but a brief overview is necessary for a complete understanding of the case. L.G. Foster's 2008 will designated Shriners as the residuary beneficiary of his estate; in 2012, Foster executed a codicil to his will directing Frederick Romo, the named executor, to sell Foster's residence and contents at public or private sale and distribute the net proceeds to Shriners if Foster still owned the residence at the time of his death. In March 2013, Foster executed a durable power of attorney naming Romo as his attorney-in-fact. Among other things, the power of attorney authorized Romo to sell Foster's real property "at such times, in such places, and upon such terms and conditions as my said attorney-in-fact may deem appropriate." The power of attorney did not grant Romo the authority to make a gift of Foster's real property. Romo signed a warranty deed transferring Foster's residence to FUMC on April 11, 2013; the deed provided the property was sold "for and in consideration of the sum of Ten Dollars ($10) and other good and valuable consideration." Foster died on May 22, 2013; his estate, which did not include his residence, was opened soon after his death and was closed by order entered on June 10, 2014. Shriners filed a complaint for declaratory judgment in July 2014, after Foster's estate had been closed, arguing the residence should have been included in the estate and should have passed to Shriners under Foster's will. FUMC filed a motion for summary judgment, which the circuit court granted, dismissing Shriners' complaint with prejudice; Shriners appealed that decision. In Shriners I , our court held the circuit court erred in holding that the parol-evidence rule prohibited Shriners from introducing evidence outside the deed to show the conveyance of the real property was, in fact, a gift rather than a sale, and we reversed and remanded the case for further proceedings consistent with our opinion.
On remand, FUMC and Shriners filed competing motions for summary judgment. FUMC contended there was no issue of material fact left to be litigated, and it was entitled to summary judgment because it had purchased Foster's residence, Shriners' claim was barred by the doctrine of accord and satisfaction, and Shriners' claim was also barred by the doctrine of waiver. FUMC attached Romo's affidavit to its motion, in which Romo stated the following: Foster had told Romo he wanted FUMC to receive his residence; Foster originally wanted to donate his residence as a parsonage, but FUMC determined it could not accept a restricted gift; Foster decided to sell the residence and donate the proceeds to FUMC, but he became physically ill and relocated to a nursing home before the house could be listed for sale; Foster retained attorney Jim Mainard to prepare a power of attorney naming Romo as Foster's attorney-in-fact, which was executed on March 7, 2013; during Romo's visits to Foster in the nursing home three to four times per week, they continued to discuss Foster's desire for FUMC to receive his residence at his death; Foster directed Romo to contact Mainard to finalize the transfer and donation of his residence to FUMC so that he did not need to execute a new will; Mainard advised Romo the power of attorney did not authorize him to make a charitable donation of the residence to FUMC, but he was allowed to sell the residence to FUMC under the power of attorney on such terms and conditions as Romo deemed appropriate; Romo then discussed with Foster selling the residence to FUMC for $10; Foster was fine with selling the residence to FUMC for $10 and directed Romo to have Mainard's office prepare a deed for Romo to sign selling the residence to FUMC for $10; Romo executed the deed and delivered it to FUMC; FUMC paid $10; a receipt was prepared showing the payment of $10; Romo filed the deed with the Franklin County Circuit Court Clerk's office and took copies to Mainard's office and to Foster to show him that his wishes had been completed; Foster died on May 22, 2013, knowing his residence was FUMC's property; and he had sold the residence to FUMC for $10 and did not make a gift of the residence. The affidavits of Jennifer King, the FUMC administrative assistant at the time, and Keith Dodson, the FUMC pastor at the time, corroborated Romo's affidavit.
Shriners denied FUMC's claim that it was entitled to summary judgment, asserting instead Shriners was entitled to summary judgment because the transfer of the residence was in fact a gift, as the $10 paid was nominal consideration and did not permit a finding of good-faith purchaser for value. Shriners attached the affidavit of Bradley Buethe, an attorney in Shriners' legal department, that asserted Foster's estate was aware Shriners was questioning the predeath transfer of the residence, as the power of attorney did not allow gifts to be made; that Shriners did not waive any right it had to contest the transfer of Foster's residence to FUMC; and that Shriners never agreed to accord and satisfaction by agreeing to accept money and property in exchange for a promise by Shriners not to litigate its entitlement to Foster's residence.
At the hearing, FUMC argued the power of attorney gave Romo the authority to sell the residence on whatever terms he wanted; he sold it for $10; the power of attorney did not require any threshold or that the sale be reasonable; and FUMC had the receipt and affidavit. Shriners agreed the issue was whether it was a sale or a gift and took the position that the transaction was a gift, which was not permitted by the power of attorney.
The circuit court took the case under advisement. On July 21, 2017, the circuit court granted FUMC's motion for summary judgment, denied Shriners' motion for summary judgment, and dismissed Shriners' complaint with prejudice, finding FUMC was a bona fide purchaser for value; Romo had the legal authority to sell the real estate in question on any terms he deemed appropriate; the deed executed and the transaction in question was a valid sale and FUMC was the legal owner of the real property and residence; Shriners has no legal interest in the real property in question; and it was unnecessary to address FUMC's arguments that Shriners' claims were barred by the doctrines of accord and satisfaction and waiver. At the request of the parties, the circuit court entered an amended order on August 10, 2017, again granting FUMC's motion for summary judgment and adding a finding that FUMC's arguments that Shriners' claims were barred by the doctrines of waiver and accord and satisfaction were well taken for the reasons stated and advanced by FUMC.
Shriners filed its notice of appeal on August 14, 2017. On appeal, Shriners argues (1) FUMC was not a good faith purchaser for value because it paid only an admittedly nominal amount for valuable real property; (2) there was no agreement sufficient to constitute accord and satisfaction; and (3) there was no waiver because Shriners received no consideration. We affirm.
Standard of Review
In R & L Carriers Shared Services, LLC v. Markley , 2017 Ark. App. 240, at 4, 520 S.W.3d 268, 272 (citations omitted), our court set forth the standard of review for summary judgment:
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A circuit court's conclusion on a question of law is reviewed de novo and is given no deference on appeal. And when the parties agree on the facts, the appellate court simply determines whether the appellee was entitled to judgment as a matter of law. When parties file cross-motions for summary judgment, as they did in this appeal, they essentially agree that there are no material facts remaining, and summary judgment is an appropriate means of resolving the case.
Sale Versus Gift
Shriners first argues that Foster had the intent to donate his residence to FUMC, not sell it, and that the $10 "sale" to FUMC was in essence a gift. Shriners argues that had Foster wanted to donate his residence to FUMC, he could have simply signed a deed or included the authority to make a gift in the power of attorney given to Romo. Shriners further argues that FUMC was not a good-faith purchaser for value.
While it is true that Foster could have accomplished the transfer of his residence to FUMC in other ways, we are asked to determine whether the manner in which it was transferred was appropriate. Shriners argues that $10 is not sufficient consideration to make FUMC a bona fide purchaser. We need not determine whether FUMC was a bona fide purchaser. "In the absence of accident, mistake, fraud and the like, no one can call into question a man's disposition of his property. Where a deed, on its face, is an absolute conveyance, has been executed and delivered as the voluntary act of the grantor, the question of consideration, as between the parties and their privies, is immaterial." Paul Jones, Jr., The Arkansas Law of Title to Real Property § 137 (1935). Mere inadequacy of consideration is not sufficient to set aside a deed, without accompanying acts of fraud or deception. Aberdeen Oil Co. v. Goucher , 235 Ark. 787, 362 S.W.2d 20 (1962). Here, there were no acts of fraud or deception.
Romo, under the power of attorney, had the authority to sell the real property on any terms and conditions he deemed appropriate. The Oregon case of Wade v. Northup , 70 Or. 569, 140 P. 451 (1914), is instructive. The power of attorney in Wade did not include the ability to make a gift of the property, but the consideration provided was $10 in one instance and $1 in another instance. The Oregon Supreme Court held that the attorney-in-fact was within the letter of his authority to convey the lands upon such terms as he should think fit, and the attorney-in-fact was within the spirit of the power conferred upon him as well. We find the present case to be akin to Wade . Here, the power of attorney specifically authorized Romo to sell Foster's real property on such terms and conditions as Romo deemed appropriate. When donation was not possible, Foster decided his residence would be sold to FUMC for the sum of $10, which was, in fact, paid by FUMC. Not only was this sale within the letter of Romo's authority under the power of attorney to convey Foster's real property upon such terms as he deemed appropriate, it was also within the spirit of the power of attorney.
We hold the circuit court properly granted summary judgment to FUMC because Romo, under the power of attorney, had the authority to sell the real property to FUMC on the terms he deemed to be appropriate. Due to our holding on this point, it is unnecessary to address Shriners' arguments regarding accord and satisfaction and waiver.
Affirmed.
Klappenbach and Hixson, JJ., agree. | [
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SHAWN A. WOMACK, Associate Justice
Richard Tarver was convicted of capital murder, kidnapping, aggravated burglary, abuse of a corpse, theft of property, and possession of a defaced firearm, with all charges stemming from the 2015 murder of 90-year-old Lavinda Counce. He was sentenced to life imprisonment without the possibility of parole in addition to several other consecutive sentences. Tarver appeals his convictions, challenging both the sufficiency of the evidence supporting his convictions and the trial court's adverse rulings on miscellaneous motions from various stages of the trial. This court previously ordered rebriefing because the State's initial brief did not fulfill its obligation under Arkansas Supreme Court Rule 4-3(i) (2017) to address all of the points that Tarver argues on appeal. Tarver v. State , 2017 Ark. 348, 2017 WL 6046304. Now that the State has sufficiently briefed responses to Tarver's arguments and assertions, we affirm.
Tarver's claim that the circuit court erred in denying his motions for a directed verdict is a challenge to the sufficiency of the evidence. 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. See, e.g. , Dortch v. State , 2018 Ark. 135, at 5, 544 S.W.3d 518. We affirm the conviction if substantial evidence supports it. Id. 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. Tarver presents his challenge to the sufficiency of the evidence and his challenge to the trial court's admission of his various incriminating custodial statements as separate points on appeal. The entirety of his discussion on the sufficiency-of-the-evidence point, however, rests on his claim that the State could only have proved certain elements of the alleged crimes through the admission of "uncorroborated, coerced statements." Resolving the first point requires resolving the second.
Three separate sets of statements by Tarver are at issue. The first statement came during the police search of Tarver's house. Police identified Tarver as a suspect following a canvass of the victim's neighborhood. They obtained a search warrant for his home based on information gathered in that sweep. When police executed the warrant, Tarver was present with his family members at the home. Tarver expressed concern to the police that they not harm his family. The police responded that they had no intent to do so, and they further stated that Tarver knew what the search was about. Tarver replied, "I know. I know." The second group of statements came immediately afterward. Tarver was handcuffed and placed into the front seat of a police vehicle. A police officer read Tarver his rights from a form, and Tarver verbally indicated that he understood those rights. Tarver was not asked to sign the rights form because his hands were still restrained. First in this vehicle and then later upon being transferred to another, Tarver initially denied involvement in the murder, then admitted disposing of the body, and then finally (accurately) revealed the location of a defaced gun within his house. Third, Tarver gave further incriminating custodial statements once he reached the sheriff's office. Tarver was again read his rights, and this time signed the rights form. In two recorded statements, Tarver described his commission of the murder in detail.
The trial court did not err in refusing to suppress any of these statements. First, the trial court determined that Tarver's "I know" statements made during the execution of the search warrant were spontaneously given, analogizing to Stone v. State , 321 Ark. 46, 900 S.W.2d 515 (1995). In determining whether a custodial statement was spontaneously given, the crucial question we ask is whether "it was made in the context of a police interrogation, meaning direct or indirect questioning put to the defendant with the purpose of eliciting a statement from the defendant." Id. at 54, 900 S.W.2d at 519. Here, the police officer's statement that Tarver knew why the search was occurring is certainly not a direct question. Further, we cannot say that the trial court erred in concluding it was not an attempt at indirect questioning either. Tarver attempts to argue that this circumstance is less like Stone -where we upheld the admission of a defendant's unprompted confession to a murder during an unrelated traffic stop-and more like Sheltonv. State , 287 Ark. 322, 699 S.W.2d 728 (1985) -where we reversed over the admission of a defendant's confession in response to a police officer musing about the seriousness of the crime and stating that the defendant should do anything he could to help solve it. We do not find Tarver's argued similarity to Shelton convincing. It is clear that the officer in Shelton was attempting to elicit some affirmative reaction from the defendant. Here, the most natural reading of the officer's comment to Tarver is as part of an ongoing attempt to pacify him during a search.
Tarver's primary argument against admitting the second statements-those made in the police vehicles-is merely that they followed close on the heels of the first statement. Citing Brown v. Illinois , 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), he argues that the latter statements are "fruit of the poisonous tree" because the initial statements were themselves coerced and improperly admitted. Because we have just held that the tree in this metaphor was not poisonous, this argument fails. Tarver's freestanding objections to the statements made in the police vehicles are also quickly dispensed with. While Tarver is correct that these statements were not recorded and that he did not sign the form from which the police officer read him his rights as this juncture, these defects are not sufficient by themselves to render a custodial statement inadmissible. See, e.g. , Moore v. State , 303 Ark. 514, 798 S.W.2d 87 (1990) (holding that the lack of a signed rights-disclosure form did not alone defeat other evidence of voluntary waiver); Ark. R. Crim. P. 4.7 (2017) (permitting courts to consider why a recording of a custodial statement was not made in any particular case, but not requiring exclusion).
For the recorded statements Tarver made in the sheriff's office, Tarver's sole argument is the "fruit of the poisonous tree" line of reasoning outlined above. Because, he argues, the statements at the sheriff's office came soon after the vehicle statements that in turn came soon after the search statement, this final link should be excluded. As above, however, we have found no fault with any of the prior links. Without a source of poison, the argument collapses. With no independent reason to question the admissibility of these interviews, we cannot say that the trial court erred in denying Tarver's motion to suppress. Because the trial court did not err in admitting any of Tarver's incriminating statements, because other substantial evidence corroborated those statements, and because this evidence is more than enough to satisfy the elements of the charges Tarver challenges, we affirm the trial court's denial of Tarver's motions for a directed verdict based on insufficiency of the evidence.
We turn to Tarver's survey of twenty-six other adverse rulings made by the trial court. As an initial matter, several of the points involve Tarver's objections to how the trial court handled various aspects of the potential application of the death penalty to his case. All arguments of this nature are moot, however, as Tarver did not receive a sentence of death. See, e.g. , McFarland v. State , 337 Ark. 386, 400, 989 S.W.2d 899, 906 (1999). Additionally, some of the adverse rulings that Tarver chooses to highlight are merely described without any further legal argument offered in support of reversal. To the extent these were intended to be points on appeal, they are abandoned. See Hale v. State , 343 Ark. 62, 31 S.W.3d 850 (2000).
Of his remaining arguments, several challenge the trial court's evidentiary decisions. Tarver's first challenge is to the trial court's relevancy determinations of (1) the unsigned rights-disclosure form from his statements in the police vehicles and (2) a police officer's testimony about his encounter with Tarver's wife on the day of the arrest. Tarver did not specifically dispute the relevancy of this evidence below, and therefore that argument is not preserved for our review on appeal. See, e.g. , Dodson v. State , 341 Ark. 41, 48, 14 S.W.3d 489, 494 (2000). Next, Tarver argues that the trial court should not have allowed "duplicative and inflammatory" photos into evidence. This evidentiary decision is reviewed for an abuse of discretion. See, e.g. , Duncan v. State , 2018 Ark. 71, at 3, 539 S.W.3d 581, 583. We cannot say that the trial court's actions here-carefully admitting 13 photos it determined illustrated distinct aspects of the crime while excluding 154 other photos-constituted an abuse of discretion.
Tarver further challenges the trial court's admission of the testimony of a criminal investigator about fingerprint evidence. The motion Tarver made was that the testimony was "beyond the [witness's] expertise." The trial court denied the motion based on the State's response that the investigator was not offering testimony as an expert witness but rather as a trained layperson. Having not countered this argument below, Tarver may not shift his argument and change the nature of the objection on appeal. See, e.g. , Foreman v. State , 328 Ark. 583, 594, 945 S.W.2d 926, 932 (1997). Tarver argues that the trial court erred in overruling his objection that a police officer's testimony was based on speculation. The claimed piece of speculation was the officer's statement that Tarver had used paper money stolen from the victim for shopping later in the afternoon. Tarver claims the officer could not have truly known where the money originated. As the State notes, the officer's testimony was not speculation; it was relaying the details of one of Tarver's multiple confessions.
Next, Tarver argues that, despite no specific objection having been made, the trial court erred by allowing the State to "read[ ] from the Jonesboro Sun" newspaper extensively in the guise of questioning Tarver during cross-examination. Tarver asserts that this permitted the State to introduce improper testimony. The State's references to the article, however, were limited. Tarver claimed that his knowledge of the crime came from the newspaper's coverage, and the State's use of the article was to clarify which details did or did not appear in that coverage. The trial court did not abuse its discretion in allowing such references. Tarver's final evidentiary point on appeal is that the trial court erred in permitting the State to cross-examine Tarver about his statement in one recorded confession that he had no remorse over committing the murder. Tarver argues that the line of questioning served only to inflame the jury and did not belong in the guilt phase of the trial. The trial court did not abuse its discretion when it permitted this questioning. Tarver elected to testify and to deny the truth of his earlier confessions. The State's line of questioning was a permissible challenge to Tarver's credibility given the conflict in his testimony and the recorded confessions also shown to the jury.
Tarver argues that the trial court made several errors in handling jury selection. He asserts that the trial court should have granted his motion to allow selection of jury members by phone and mail to ensure a "true cross section of the community" made up the panel. Tarver does not explain which group might have been systematically excluded from the jury pool due to the trial court using traditional jury selection methods. He has therefore not alleged a constitutional defect justifying reversal. See, e.g. , Miller v. State , 2010 Ark. 1, at 10, 362 S.W.3d 264, 273. Similarly, Tarver is incorrect that the trial court erred in denying his motion for "compensation and child care expenses for jurors." His assertion of such a constitutional right in order to have a "fairer cross-section of the community" is supported only by the bare assertion that "people who live paycheck to paycheck" are both "a large and identifiable portion of the community" and excluded from the jury pool by the lack of the compensation he requests. Tarver's single citation to Peters v. Kiff , 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972), which deals with racial bias in jury selection, does not establish or significantly advance his argument for similar treatment of his proposed "paycheck to paycheck" community. We will not entertain an entreaty to adopt a novel legal theory that does not cite to authority or convincing argument. See, e.g. , MacKool v. State , 2012 Ark. 287, at 5, 423 S.W.3d 28, 32 (per curiam). Tarver argues that the trial court erred in denying him additional peremptory challenges. This argument is moot, however, as Tarver did not use all of the challenges he was allotted by statute. See Ark. Code Ann. § 16-33-305. Tarver also challenges the trial court's refusal to strike two jurors for cause during jury selection. As in his last point, however, Tarver has not demonstrated that he exhausted the means at his disposal to oust unwanted jurors before receiving special consideration from the trial court. See Gardner v. State , 296 Ark. 41, 60, 754 S.W.2d 518, 528 (1998).
Tarver makes three final assorted arguments. First, Tarver argues that the trial court erred in denying his motion that the overlap between Arkansas's capital murder and first-degree felony murder statutes is unconstitutional. We have repeatedly held that this is not the case, and decline to reverse those precedents today. See, e.g. , Kellon v. State , 2018 Ark. 46, at 6, 538 S.W.3d 206, 209. Tarver argues that the trial court erred in denying his motion to wear civilian clothing at all hearings. Pursuant to his timely request, Tarver exercised his Fourteenth Amendment right to wear civilian clothing before the jury as it has been interpreted by the United States Supreme Court. See Estelle v. Williams , 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). There is no equivalent right to wear civilian clothing in appearances before a judge alone, however. The trial court's denial of this novel request was therefore proper. See MacKool , supra. Finally, Tarver argues that the trial court erred in denying his motion to sever the charges of abuse of a corpse and possession of a defaced firearm from the murder trial. The trial court's decision to sever charges is discretionary, and we cannot say that the trial court abused its discretion here in concluding that the nature of the potential murder weapon and the disposal of the victim's corpse were rightly considered part of the same scheme or plan. See, e.g. , Kemp v. State , 348 Ark. 750, 763-65, 74 S.W.3d 224, 230-32 (2002).
As required by Ark. Sup. Ct. R. 4-3(i) (2017), this court has also examined the record for reversible error. None has been found.
Affirmed.
Hart, J. concurs.
Josephine Linker Hart, Justice, concurring.
I concur with the majority's resolution of this case, but I write separately to address certain issues raised by the majority opinion.
First, I cannot agree that Tarver's "first set" of statements at issue in this case is properly characterized as a spontaneous utterance. Tarver was lying on the floor of his home after police officers had just burst through the door, weapons drawn, when one of the officers said to Tarver, "You know why we're here." Tarver's response, "I know, I know," was plainly obtained in the context of a custodial interrogation. A reasonable officer making such a statement in those circumstances surely anticipated that it could elicit a response from Tarver.
Even so, the trial court's decision not to suppress Tarver's statements is properly affirmed. Oregon v. Elstad , 470 U.S. 298, 318, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) ("No further purpose is served by imputing 'taint' to subsequent statements obtained pursuant to a voluntary and knowing waiver.") Tarver's full confession later obtained at the police station was sufficiently removed from the initial statements as to obviate any alleged taint of his confession. Furthermore, any assertion that Tarver's first set of statements, "I know, I know," would even be considered incriminating for purposes of these crimes is tenuous at best; Tarver himself testified that he thought the police were talking about a parole revocation or a drug bust. Accordingly, it does not appear that Tarver, when he later made the second set of statements inside the police vehicle and the third set of statements at the police station, was operating with the mental impression of someone who had already confessed to the police.
Second, I am less dismissive than the majority of Tarver's arguments about ensuring that the jury was composed of a fair cross-section of the community and that the jurors were compensated for childcare expenses. If less financially affluent individuals were systematically removed from the jury panel, that could be a cognizable basis for reversal. Thomas v. State , 370 Ark. 70, 257 S.W.3d 92 (2007) ; Duren v. Missouri , 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). However, there is no factual support presented in this case to substantiate such an argument, such as when or how any such exclusion would have occurred, whether the exclusion would have occurred openly in the courtroom or privately in the judge's chambers, etc.
Accordingly, we must affirm on this point.
I concur.
Police located a defaced gun in the place indicated by Tarver's statements. Witness testimony, DNA evidence, and Tarver's own statements linked a black bag found at the victim's home to Tarver.
Tarver argues that there was insufficient evidence to establish premeditation and deliberate intent for the capital murder charge in the absence of his statements. Though we have held that the trial court did not err in admitting his statements, we also note that, among other factors, the transport of the victim from her home to a cornfield, bringing a deadly weapon to the murder scene, and the "execution-style" of the killing are also sufficient to prove these elements. See, e.g. , Hyatt v. State , 2018 Ark. 85, 540 S.W.3d 673 (holding that defendant's decision to arm self with gun and drive to victim's house supported verdict requiring premeditation and deliberation).
As lettered in Tarver's briefing, this describes in whole or in part points d, f, h, i, j, k, l, n, and w.
As lettered in Tarver's briefing, the abandoned points on appeal are t, u, and z.
Points a and b.
Point c.
Point s.
Point v.
Point x.
Point y.
Point e.
Point o.
Point q.
Point r.
Point g.
Point m.
Point p. | [
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KAREN R. BAKER, Associate Justice
Appellant Dexter Harmon, an inmate incarcerated in the Arkansas Department of Correction ("ADC"), appeals from the Jefferson County Circuit Court's order granting summary judgment with respect to Harmon's civil rights and tort complaint filed against ADC officials, Moses Jackson, Randy Watson, and Flora Washington, in their individual capacities under the Arkansas Civil Rights Act of 1993 (ACRA), codified as Arkansas Code Annotated sections 16-123-101 to -108 (Repl. 2016). Harmon alleged that appellees violated his due-process rights when they failed to release him from punitive isolation for approximately one month after he was due to be released. Harmon further alleged that appellees committed the torts of false imprisonment, negligence, and "excessive confinement." The circuit court granted the appellees' motion for summary judgment from which this appeal has been brought, and both Harmon and appellees have filed their briefs in this appeal. Harmon subsequently filed a "motion for request" wherein he alleges that the appellees failed to forward a copy of their brief to him and asks that this court provide him with the copy.
Because the circuit court erred when it granted summary judgment and dismissed the action on the sole ground of failure to exhaust, this matter is reversed and remanded. Harmon's motion is therefore moot.
Appellees argued below that they were entitled to summary judgment because Harmon had failed to exhaust his administrative remedies before filing suit. In support of their argument, appellees relied on federal case law applying the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, which requires that inmates exhaust prison grievance procedures before bringing 42 U.S.C. § 1983 actions related to prison conditions. Burns v. Eaton , 752 F.3d 1136 (8th Cir. 2014). Appellees alleged in the motion for summary judgment filed below that the grievances filed by Harmon had failed to specify a claim that the named ADC officials had violated his right to due process or had committed tortious acts but had instead alleged that the named officials had violated his Eighth Amendment right against cruel and unusual punishment. On this basis, and relying on federal case law, appellees contend that Harmon failed to exhaust his administrative remedies when he failed to specify his claims for relief.
The law is well settled that summary judgment is to be granted by a circuit 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. Hardin v. Bishop , 2013 Ark. 395, 430 S.W.3d 49. Where there is no material question of fact, we determine whether the moving party was entitled to judgment as a matter of law. City of Rockport v. City of Malvern , 2012 Ark. 445, at 3, 424 S.W.3d 870, 873. We review issues of statutory construction de novo, as it is for this court to interpret a statute. Id. , 424 S.W.3d at 873.
The circuit court erred when it granted summary judgment on evidence presented by appellee that Harmon had failed to exhaust his due-process and tort claims as required by the PLRA. The PLRA is a federal law that is not applicable to actions brought against public officials in their individual capacities under ACRA and Arkansas tort law. While ACRA is guided by federal law as to actions filed pursuant to § 1983, there is nothing in ACRA that references the applicability of the PLRA. See Ark. Code Ann. § 16-123-105(c) (stating in pertinent part that when construing this section, a court may look for guidance to state and federal decisions interpreting 42 U.S.C. § 1983 ).
Harmon did not file a civil rights action under § 1983 but limited his claim to one brought pursuant to ACRA and alleged a due-process violation pursuant to article 2 of the Arkansas Constitution. Arkansas has not enacted a law similar to the federal statute that requires exhaustion of administrative remedies before lodging an action for compensatory damages based on allegations of the violation of constitutional rights. In Arkansas, exhaustion is generally required when a party is seeking a declaratory judgment or injunctive relief. See Ahmad v. Beck , 2016 Ark. 30, 480 S.W.3d 166 (declaratory-judgment actions are intended to supplement, rather than replace, ordinary actions and litigants must therefore exhaust their administrative remedies before seeking a declaratory judgment); see also Hotels.com, L.P. v. Pine Bluff Advert. & Promotion Comm'n , 2013 Ark. 392, 430 S.W.3d 56 ; Prof'l Bail Bondsman Licensing Bd. v. Frawley , 350 Ark. 444, 88 S.W.3d 418 (2002). Furthermore, the exhaustion of administrative remedies is not required when no genuine opportunity for adequate relief exists or when an administrative appeal would be futile. Ahmad , 2016 Ark. 30, 480 S.W.3d 166 ; see also Cummings v. Big Mac Mobile Homes, Inc. , 335 Ark. 216, 222, 980 S.W.2d 550, 553 (1998) (When a plaintiff prays for relief that is clearly not available at the administrative level, exhaustion of available administrative remedies is not required.).
Thus, the circuit court erred in granting the appellees' motion for summary judgment and dismissing Harmon's case based on his failure to exhaust his administrative remedies. Accordingly, we reverse and remand.
Reversed and remanded; motion moot.
Womack, J., concurs.
Harmon alleges in his complaint and in his argument on appeal that he had been placed in punitive isolation and was due to be released on June 10, 2014, but that the named defendants intentionally extended his stay in punitive isolation through July 7, 2014.
Arkansas has not recognized a cause of action for "excessive confinement."
Harmon filed two grievances dated June 12, 2014. One of these grievances named Jackson and Washington and stated that these two ADC employees had intentionally refused to release him from punitive isolation after his term had expired. The duplicate grievance alleged that Watson had conspired with Jackson to extend his term of punitive isolation in violation of his Eighth Amendment right against cruel and unusual punishment. Both grievances were appealed to the ADC Chief Deputy/Assistant Director who concluded that Harmon's extended stay in punitive isolation was due to the unavailability of bed space in the nonpunitive block. | [
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KAREN R. BAKER, Associate Justice
Petitioner Jimmy Don Wooten was convicted of capital murder, criminal attempt to commit capital murder, and aggravated assault. Wooten was sentenced to death on the capital-murder charge, thirty years' imprisonment on the attempt-to commit-capital-murder charge, and six years' imprisonment on the aggravated-assault charge. His convictions and sentences were affirmed on appeal. Wooten v. State , 325 Ark. 510, 931 S.W.2d 408 (1996). After a motion to recall the mandate was granted by this court permitting Wooten to seek postconviction relief pursuant to Rule 37, Wooten now serves a term of life imprisonment without parole on the capital-murder charge. See Wooten v. State , 2010 Ark. 467, 370 S.W.3d 475, overruled by Ward v. State , 2015 Ark. 62, 455 S.W.3d 830. Wooten now brings this pro se petition to reinvest jurisdiction in the circuit court to consider a petition for writ of error coram nobis in which he contends that he suffers significant mental disease and defect and trial counsel's ineffective performance litigating this issue led to Wooten's capital-murder conviction. Because Wooten has neither demonstrated in the petition that the writ should issue nor been diligent in raising his claims, the petition is denied.
The circuit court cannot entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal unless this court grants permission.
Carner v. State , 2018 Ark. 20, 535 S.W.3d 634 (citing 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 circuit court and that, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Carner , 2018 Ark. 20, 535 S.W.3d 634. 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.
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. Jackson v. State , 2017 Ark. 195, 520 S.W.3d 242.
Wooten argues that he suffers from a mental disease and defect and that this fact was "unknown and hidden at trial due to incompetent and ineffective assistance of counsel," and that had it been brought forward, he would not have been subjected to a sentence of life imprisonment without the possibility of parole. This court has repeatedly held that ineffective-assistance-of-counsel claims are not grounds for the writ. Green , 2016 Ark. 386, 502 S.W.3d 524. Claims of ineffective assistance of counsel are properly raised in a timely petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2017). Smith v. State , 2018 Ark. 37, 2018 WL 773711. A petition for error coram nobis is not a substitute for raising an issue under Rule 37.1. Id. Wooten has failed to demonstrate the writ should issue.
Furthermore, while there is no specific time limit for seeking a petition for writ of error coram nobis, due diligence is required in filing a petition for relief, and in the absence of a valid excuse for delay, the petition will be denied. Roberts , 2013 Ark. 56, 425 S.W.3d 771. Due diligence requires that (1) the defendant be unaware of the fact at the time of trial; (2) the defendant could not have, in the exercise of due diligence, presented the fact at trial; and (3) upon discovering the fact, the defendant did not delay bringing the petition. Id.
Wooten first raised the claim he raises now of mental disease and defect, which he claims was confirmed by a psychiatric evaluation on September 27, 2006, by Dr. Robert A. Fox, Jr., in a motion to recall the mandate that was tendered to this court in March 2007. See Wooten , 2010 Ark. 467, 370 S.W.3d 475 (Brown, J., concurring) (Wooten's core argument is that because of his defective counsel at this Rule 37 hearing in 1997 and on appeal, he has never been able to show either the circuit court or this court how his trial counsel was ineffective in his failure to present mental illness and familial abuse as mitigation evidence at the sentencing phase.). At the very least, Wooten discovered the fact of his mental disease and defect in 2006 but did not raise the claim for coram nobis relief for an additional twelve years, which can hardly be said to be without delay. Wooten was granted his motion to recall mandate to pursue postconviction relief pursuant to Rule 37 in 2010, and since that time, he has taken no action to seek coram nobis relief for his alleged claim of mental disease and defect. Because Wooten fails to give a valid excuse for the delay in raising the claim, Wooten has not been diligent, and the petition is denied.
Petition denied.
Hart, J., dissents.
Josephine Linker Hart, Justice, dissenting.
I dissent. The majority offers two bases to support its decision to deny Wooten's petition to reinvest jurisdiction in the trial court to consider a writ of error coram nobis. First, the majority suggests that Wooten is making an ineffective assistance counsel argument, which is not cognizable in error coram nobis proceedings. Second, the majority suggests that Wooten has not been diligent in bringing his claim. The majority is incorrect to deny Wooten's petition for either of these reasons.
First, a plain reading of Wooten's petition reveals that the majority's characterization of Wooten's argument is wholly inaccurate. Wooten's argument is that he was insane and suffered from a mental disease or defect at the time of trial, not that his trial counsel was ineffective. Wooten's petition contains only a single assertion that his trial counsel was ineffective for failing to investigate or present evidence of his mental condition, but that assertion is not the thrust of his petition. Wooten's argument is that he was insane at the time of trial, which is a perfectly cognizable basis for error coram nobis relief. Howard v. State , 2012 Ark. 177, 403 S.W.3d 38 (error coram nobis relief available for one of four grounds: (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). Accordingly, the majority's first basis for denying Wooten's petition is inapplicable.
Second, the majority rejects Wooten's petition on the basis that he has not diligently pursued his claims. There is simply no rationale to support such a policy. The State has no interest whatsoever in continuing to hold individuals in prison when some fact extrinsic to the record would have kept those individuals from being placed in prison in the first place. Reinvesting jurisdiction in the trial court to consider the writ of error coram nobis is the only way to address this situation. Accordingly, the majority's second basis for denying Wooten's petition is inapplicable as well.
As Wooten alleges a perfectly viable basis for reinvesting jurisdiction in the trial court to consider the writ of error coram nobis, I would grant Wooten's petition.
Ward overruled Wooten to the extent that an unverified postconviction petition, by itself, is no longer a basis for finding a breakdown in the appellate process on appeal from postconviction review so as to warrant a recall of the mandate affirming denial. | [
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KAREN R. BAKER, Associate Justice
Appellant Carl Davis, Jr., appeals the Lincoln County Circuit Court's dismissal of his pro se petition for declaratory judgment and writ of mandamus. In his petition, Davis, an inmate incarcerated in the Arkansas Department of Correction (ADC), challenged the ADC's calculation of his parole eligibility. Davis alleged that the ADC incorrectly included certain felony convictions in its calculation of his multiple-offender classification. Based on the ADC's incorrect calculation, the ADC had determined that Davis was in his "fourth term" and classified him a fourth offender for purposes of parole eligibility. Additionally, Davis argued that including his 1981 convictions for burglary and robbery resulted in an ex post facto violation. The circuit court found that the ADC had not erred in its calculation as to either issue, and therefore, Davis had failed to state a claim on which relief could be granted. We agree that there has been no ex post facto violation, and we affirm on that issue. However, we do not agree that the perjury conviction should have been used in calculating Davis's status as a habitual offender, and we reverse and remand on that point.
In 1981, Davis entered negotiated guilty pleas in two cases in the Jefferson County Circuit Court, 35CR-81-321 and 35CR-81-330, on charges of burglary and robbery, which were both Class B felonies. In materials provided to Davis, the ADC counted this as Davis's first term of incarceration.
In 1983, when Davis had been released on parole, he was convicted and sentenced on two counts of burglary, which were Class B felonies, and two counts of theft of property, which were Class C felonies, in 35CR-83-137. The ADC counted this as Davis's second term of incarceration.
In 1985, while still incarcerated for the 1983 convictions, Davis entered a guilty plea to perjury, a Class C felony, in 35CR-85-270. Davis's sentence in that case was to be served concurrently to the one he was already serving, and because the term of the sentence for perjury was less than what remained on Davis's previous convictions, the conviction did not extend the aggregate term of his incarceration. The ADC counted this as Davis's third term of incarceration.
In 1991, after being released on parole for his previous charges, Davis was found guilty and sentenced on a charge of aggravated robbery in 35CR-91-457. Davis is currently incarcerated serving a seventy-year sentence on the 1991 aggravated-robbery conviction.
The ADC classified Davis as a fourth offender under Arkansas Code Annotated section 16-93-606(b)(4) (Repl. 2006) based on this calculation, and using that habitual-offender status, it determined that under Arkansas Code Annotated section 16-93-607(c)(5), Davis was not eligible for parole. The definition of a fourth offender in section 16-93-606(b)(4) is
an inmate convicted of four (4) or more felonies and who has been incarcerated in some correctional institution in the United States, whether local, state, or federal, three (3) or more times for a crime which was a felony under the laws of the jurisdiction in which the offender was incarcerated, prior to being sentenced to a correctional institution in this state for the offense or offenses for which he or she is being classified.
(Emphasis added.) Section (a) of the same statute defines the term "felony" as used in the section as "a crime classified as Class Y felony, Class A felony, or Class B felony by the laws of this state."
The circuit court considered exhibits outside the pleadings in making its ruling, and we treat the dismissal as one on summary judgment. Rogers v. Knight , 2017 Ark. 267, 527 S.W.3d 719. Summary judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Hotfoot Logistics, LLC v. Shipping Point Mktg., Inc. , 2013 Ark. 130, 426 S.W.3d 448.
Davis sought the appropriate remedy; a challenge to the ADC's interpretation of a statute and its application to calculate parole eligibility may support declaratory judgment. See, e.g. , Hobbs v. Baird , 2011 Ark. 261 (affirming grant of declaratory judgment where ADC had erroneously interpreted statute). The denial of a declaratory-judgment action is upheld unless the denial is clearly erroneous, with issues of statutory interpretation reviewed de novo. Haile v. Johnston , 2016 Ark. 52, 482 S.W.3d 323.
Here, the issue is whether the ADC correctly interpreted and applied the applicable parole-eligibility statutes. Parole eligibility is determined by the law in effect at the time the crime is committed. Bramlett v. Hobbs , 2015 Ark. 146, 463 S.W.3d 283. Here, it is Davis's eligibility for parole on the sentence for his 1991 aggravated-robbery conviction that is at issue. The judgment reflects that the offense in that case was committed on July 21, 1991, and the ADC must apply the method of classification described in Act 825 of the 1983 Acts of Arkansas, codified as Arkansas Code Annotated sections 16-93-605 to -607 (Repl. 2006).
First, Davis contends that application of Act 825 was error and that a previous statute should be applied. Specifically, Davis argues that application of Act 825 would result in an ex post facto violation because the crimes he committed in 35CR-81-321 and 35CR-81-330 occurred prior to the effective date of the Act. We have addressed this question before and determined that no ex post facto violation occurred.
Davis is charged with knowledge that if he committed an additional offense, his parole eligibility would be computed in accordance with the law in effect at the time his latest felony was committed. Woods v. Lockhart , 292 Ark. 37, 727 S.W.2d 849 (1987). There are two critical elements that must be present for a criminal law to be ex post facto: (1) it must be retrospective, that is, it must apply to events occurring before its enactment; (2) it must disadvantage the offender affected by it. Brown v. Lockhart , 288 Ark. 483, 707 S.W.2d 304 (1986). The application of Act 825 is to Davis's most recent conviction and not to the previous convictions used to determine his status as a repeat offender. Id. The circuit court correctly determined that Davis's ex post facto argument failed.
We now turn to Davis's argument that the ADC incorrectly included his conviction for perjury, a Class C felony, as one of his "terms" in calculating that he was a fourth offender. Davis argues that the term of incarceration for the Class C felony should not have been counted, and that it began while he was still incarcerated on the charges in 35CR-83-137. Davis would have the ADC count the convictions in the two cases as one "term" because he was not released prior to the commencement of the perjury "term."
In response, the ADC argues that Davis could be considered as incarcerated an additional period of confinement, even though he was still serving his term for the 1983 charges, citing Tisdale v. Lockhart , 288 Ark. 203, 703 S.W.2d 849 (1986). Tisdale interpreted two earlier parole acts and concerned the application of those acts to separate convictions. The ADC now asserts that the circuit court correctly concluded that the similar statute applicable here has no requirement that an inmate be incarcerated three or more separate times in order to be classified as a fourth offender, instead requiring only that the inmate has been convicted of four or more felonies and served terms of incarceration, concurrently or otherwise, on at least three of those felonies prior to the commission of the offense for which he is being evaluated.
The basic rule of statutory construction is to give effect to the intent of the legislature. State v. Colvin , 2013 Ark. 203, 427 S.W.3d 635. Penal statutes are to be strictly construed, and all doubts are to be resolved in favor of the defendant. Id. Nevertheless, even a penal statute must not be construed so strictly as to defeat the obvious intent of the legislature. Id. In construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. Id.
As stated above, Arkansas Code Annotated section 16-93-606(a) defines the term "felony" as used in the section as "a crime classified as Class Y felony, Class A felony, or Class B felony by the laws of this state." Here, the felony at issue is Davis's conviction for perjury, a Class C felony. Based on the plain language used in section 16-93-606(a) to define "felony," the ADC incorrectly included Davis's perjury conviction in its calculation of Davis's status as a habitual offender. Stated differently, because Davis's perjury conviction was not a Class Y, A, or B felony, his Class C perjury conviction and term of incarceration should not have been included in the ADC's calculation of his status as a habitual offender.
Turning to the other convictions and terms of incarceration at issue, in 1981, Davis entered negotiated guilty pleas on two Class B felonies, for which Davis was sentenced to his first term of incarceration. In 1983, Davis was convicted of two Class B felonies, for which he was sentenced to his second term of incarceration. In 1991, Davis was convicted of one Class Y felony, for which he was sentenced to his third term of incarceration. Again, we note that Davis's perjury conviction was not a qualifying "felony" as contemplated by section 16-93-606. The requirements of fourth-offender status are twofold: (1) the inmate has been convicted of four (4) or more felonies and (2) the inmate has been incarcerated in some correctional institution in the United States, whether local, state, or federal, three (3) or more times for a crime which was a felony under the laws of the jurisdiction in which the offender was incarcerated, prior to being sentenced to a correctional institution in this state for the offense or offenses for which he or she is being classified. Ark. Code Ann. § 16-93-606(b)(4). Thus, when calculating Davis's prior convictions and commitments prior to the commission of the crime for which Davis was being classified-here, his 1991 aggravated-robbery conviction-Davis had been convicted of four prior "felonies." However, Davis had only served two prior terms of incarceration as contemplated by the statute. Thus, Davis fell within section 16-93-606(b)(3), which governs third offenders, and not section 16-93-606(b)(4). Accordingly, we reverse on this issue and remand for the circuit court to enter an order in compliance with this decision.
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ROBIN F. WYNNE, Associate Justice
Appellants Protect Fayetteville f/k/a Repeal 119; Paul Sagan; Peter Tonnesson; and Paul Phaneuf and intervenor the State of Arkansas appeal from an order of the circuit court denying their motion for a preliminary injunction enjoining enforcement of an ordinance passed by the City of Fayetteville. This court decided a previous appeal in this case in Protect Fayetteville v. City of Fayetteville , 2017 Ark. 49, 510 S.W.3d 258. Because the actions of the circuit court on remand following the prior appeal exceeded its jurisdiction, we reverse the circuit court's order denying the motion for preliminary injunction and dismiss the action in its entirety.
On February 24, 2015, the Arkansas General Assembly passed Act 137 of 2015, which is codified at Arkansas Code Annotated sections 14-1-401 to -403 (Supp. 2017). Act 137 prohibits a county, municipality, or other political subdivision of the state from adopting or enforcing an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law. Act 137 was passed without an emergency clause and became effective on July 22, 2015. On June 16, 2015, the Fayetteville City Council passed Ordinance 5781, which extended existing protections against discrimination to lesbian, gay, bisexual, and transgender citizens and visitors.
Appellants filed a complaint and motion for declaratory judgment in which they sought a declaration that Ordinance 5781 violates Act 137 and to enjoin enforcement of Ordinance 5781. The State of Arkansas subsequently moved for and was granted intervenor status. The parties filed cross-motions for summary judgment in the circuit court. The circuit court denied appellants' motion and granted in part and denied in part appellees' motion, finding that Ordinance 5781 did not violate Act 137. An appeal was taken to this court.
On appeal, this court held that the circuit court erred in finding that Ordinance 5781 did not violate Act 137. We reversed and remanded, stating
[Ordinance 5781] violates the plain wording of Act 137 by extending discrimination laws in the City of Fayetteville to include two classifications not previously included under state law. This necessarily creates a nonuniform nondiscrimination law and obligation in the City of Fayetteville that does not exist under state law. It is clear from the statutory language and the Ordinance's language that there is a direct inconsistency between state and municipal law and that the Ordinance is an obstacle to the objectives and purposes set forth in the General Assembly's Act and therefore it cannot stand.
Protect Fayetteville v. City of Fayetteville , 2017 Ark. 49, at 9-10, 510 S.W.3d 258, 263.
At the time the circuit court entered its order on summary judgment, the City of Fayetteville had raised the issue of Act 137's constitutionality as an affirmative defense to appellants' motion for summary judgment; however, no counterclaim challenging the Act's constitutionality was before the circuit court at that time. In the prior appeal, we declined to address the State's argument regarding the constitutionality of the Act, observing that the matter had not been addressed by the circuit court and that issues unresolved by the circuit court are not preserved on appeal. Protect Fayetteville , 2017 Ark. 49, at 10, 510 S.W.3d at 263.
After the mandate was issued in the prior appeal, PFLAG of Northwest Arkansas, Anthony Clark, Noah Meeks, and Liz Petray successfully moved to intervene and filed a counterclaim challenging the constitutionality of Act 137. Appellants and the State filed a motion for preliminary injunction on July 28, 2017, seeking to enjoin enforcement of Ordinance 5781. The circuit court denied the request for an injunction, finding that appellants and the State had demonstrated neither a likelihood of success on the merits nor that they would suffer irreparable harm if the injunction were not granted. This appeal followed.
As stated above, this court held in its 2017 opinion in this case that Ordinance 5781 violates Act 137. Article 12, § 4 of the Arkansas Constitution states that "[n]o municipal corporation shall be authorized to pass any laws contrary to the general laws of the state." Further, we have held that municipal corporations have only the power bestowed on them by statute or the Arkansas Constitution. Municipality of Helena-W. Helena v. Weaver , 374 Ark. 109, 286 S.W.3d 132 (2008). Accordingly, city ordinances that conflict with state statutes are void under the Arkansas Constitution. Id.
At the time the case was remanded to the circuit court, the only claim before the circuit court was appellants' request for a declaratory judgment and injunction. A declaratory judgment is defined as a "binding adjudication that establishes the rights and other legal relations of the parties without providing for or ordering enforcement." Declaratory Judgment , Black's Law Dictionary 971 (10th ed. 2014). Our prior opinion and mandate operate as a binding adjudication that Ordinance 5781 violates Act 137, and appellants' request for an injunction was resolved by Act 137's constitutional supremacy over the ordinance, which renders the ordinance void and therefore unenforceable.
We have stated that "directions by an appellate court to the trial court as expressed by the opinion and mandate must be followed exactly and placed into execution. Indeed, the jurisdiction of the trial court on remand is limited to those directions." Dolphin v. Wilson , 335 Ark. 113, 983 S.W.2d 113 (1998). On remand, the circuit court's jurisdiction was limited to carrying out this court's mandate by issuing an order consistent with this court's opinion. Due to the nature of the complaint, the order would have ended the litigation, as the sole controversy between the parties was conclusively resolved by this court on appeal. Instead of complying with the opinion and mandate, the circuit court permitted PFLAG of Northwest Arkansas, Clark, Meeks, and Petray to intervene and raise a new claim regarding the constitutionality of Act 137. Any proceedings on remand that are contrary to the directions contained in the mandate from the appellate court may be considered null and void. Dolphin, supra.
Because the circuit court exceeded its jurisdiction on remand, its actions following remand are void. The order denying the preliminary injunction is reversed, and, because the sole issue over which the circuit court properly had jurisdiction was conclusively decided by this court in our 2017 opinion, the matter is dismissed in its entirety.
Reversed and dismissed.
Special Justices Hugh Finkelstein and Maureen Hazinski Harrod join in this opinion.
Goodson and Hart, JJ., not participating. | [
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WAYMOND M. BROWN, Judge
Appellant appeals from the circuit court's order terminating her parental rights to K.R., born 08/26/2003; and G.L., born 05/09/2010. On appeal, appellant argues that (1) the circuit court committed reversible error in terminating her parental rights on a ground that was not pled in appellee Arkansas Department of Human Services' (DHS) termination petition, and (2) the evidence was insufficient to support the circuit court's aggravated-circumstances finding. We affirm.
The family became involved with DHS through a family-in-need-of-services (FINS) case opened on March 17, 2016, due to the poor school attendance of both K.R. and G.L. as well as that of their eldest sibling. DHS filed a petition for emergency less-than-custody protections order on October 27, 2016, requesting the following protections for the juveniles:
ordering Patricia Lopez to ensure the juveniles are attending school, ensure that [G.L.] attends any testing by the school for an [Individualized Education Plan] IEP, attend the medical/developmental appointments for [G.L.], cooperate with [Intensive Family Services] IFS services [sic] and recommendations by the provider, and complete a psychological evaluation along with the recommendations.
In the affidavit in support of the petition, the family services worker (FSW) stated that DHS "requests court involvement to ensure that [appellant] follows through with services set up by [DHS] and ensure that [appellant] gets the kids to school in a timely manner, especially given the delays and needed services for [G.L.]" The circuit court entered an ex parte order for emergency less-than-custody protections on October 27, 2016.
A probable-cause order was entered on November 5, 2016, finding-and accepting the parties' stipulation to the same-that probable cause existed at the time the circuit court signed the emergency order and still existed. The order stated:
Custody shall continue with [appellant]. The Less-Than-Custody protections shall remain in place. Specifically, [appellant] shall ensure both juveniles are attending school, [G.L.] attends any testing, [G.L.] attends any medical/developmental appointments, cooperate with IFS services, and submit to a psychological evaluation. The juveniles shall attend school unless there is a doctor's excuse.
DHS filed a petition for emergency custody and dependency-neglect on December 14, 2016. The affidavit in support thereof stated the following, where pertinent and not duplicative:
[DHS] filed a petition to get the case before the judge. During the course of that involvement, [appellant] was informed on numerous occasions the importance of getting the kids to school and she still failed to do so. [DHS] became aware that [appellant] and the family had been evicted from where they were staying at the Motel 6 due to [appellant's] not working there anymore. [DHS] got it approved for the family to stay at the Rescue Mission and [appellant] chose to stay in a hotel with her boyfriend, Richard Kohlhaas DOB: 10/2/73. The school set up new bus transportation from the Mission to get the kids to school and [appellant] did not avail herself to those services and the kids continued to miss/be late for school.
Intensive family services also attempted to work with [appellant] on obtaining an ID from the Mexican Consulate and [appellant] has failed to get the required paperwork for the consulate. It has also been reported to [DHS] that [appellant] has chosen not to stay at the mission due to them not having room for her boyfriend then lying and saying they were married.
....
[G.L.] had a temporary IEP due to not being at school enough to complete the full assessment to a full IEP. [G.L.] has completed the assessment and now has a fully functional IEP in place, however, he cannot get the services provided if he is not in school.
....
During the course of the case [appellant] has been talked to repeatedly about the importance of getting the kids to school in a timely manner. She has repeatedly said that she would. According to the school records that has not happened. There has [sic] also been home visits made and the kids have still not left for school. On a number of occasions, the mother is waiting for a cab even though the school has provided city bus passes and school bus transportation for the juveniles. [DHS] has transported the juveniles to school several times as well.
Before the Court's involvement, the school also made several home visits to the home and talked to [appellant] repeatedly about school attendance.
Accordingly, DHS had taken a seventy-two-hour hold on the juveniles on December 12, 2016, "due to the educational neglect, unstable housing, and lack of cooperation of services provided and recommendations given." The circuit court entered an ex parte order for emergency custody on December 14, 2016.
The circuit court entered a probable cause and adjudication order on March 13, 2017, finding that there was probable cause to remove the juveniles, whom it adjudicated as dependent-neglected as defined in the Arkansas Juvenile Code, due to educational neglect. It further found that appellant was homeless at the time of the removal. The goal of the case was reunification. Once-per-week visits with the juveniles were ordered for appellant if she were located; she did not appear at the hearing.
The circuit court entered a review order on August 7, 2017, following a hearing on May 11, 2017. Noting that the juveniles were together in a foster home, the circuit court found that the case plan was moving toward an appropriate permanency plan for the juveniles, which remained reunification. It found that DHS had complied with the case plan and its orders and had made reasonable efforts to provide family services to achieve the goal of reunification. It further found that appellant "[had] housing though it [had] not been observed, [did] not have income, [had] transportation, [had] not completed parenting classes, [had] not completed a psychological evaluation, and [had] not submitted to drug screens." Both appellant and her boyfriend were ordered to submit to a drug screen that day and to submit to a hair-follicle test.
In its October 30, 2017 review order, the circuit court found that appellant "did have housing which would have allowed the juveniles to return, however, [appellant's] boyfriend, [Kohlhaas,] is not appropriate. Currently the situation is unstable." The order went on to state that "[t]here shall be no contact" between Kohlhaas and the juveniles or between Kohlhaas and appellant. The goal of the case remained reunification, which the circuit court found to be an appropriate plan. It found that DHS had made reasonable efforts.
DHS filed a petition to terminate appellant's parental rights on December 6, 2017. It asserted that the same was in the best interest of K.R. and G.L. Grounds in support of termination of appellant's parental rights were the willful-failure-to-provide-material-support ground, the other-subsequent-factors ground, and the aggravated-circumstances ground.
Following a hearing on December 7, 2017, the circuit court entered a permanency-planning order on January 5, 2018, changing the goal of the case to "adoption following termination of parental rights." It again found that DHS had complied with the case plan and court orders and had made reasonable efforts. It specifically found:
The Court finds that the mother has no housing, income, or transportation. [DHS] is to provide the mother with another HUD assistance letter. The Court notes that this case has been open for fourteen (14) months and although the juveniles have not been in [DHS's] custody since the beginning, there has been a lack of progress in that amount of time.
It kept its previous restraining order against Kohlhaas in place.
Following hearings held on February 15 and 22, 2018, the circuit court entered an order terminating appellant's parental rights to K.R. and G.L. on April 4, 2018. The circuit court terminated appellant's parental rights finding that "the juveniles [had] remained out of the home in excess of twelve (12) months and [appellant had] failed to remedy the cause of removal and that there is little likelihood that continued time and services would result in a successful reunification." In support, it made the following additional findings:
The case has been open for sixteen months, the mother still has no housing, no stable income, and no transportation. The mother has no ID and has not complied with referrals or court orders. The mother has been employed at OK foods for about two (2) weeks. Prior to that she was employed with Double tree [sic] for two to three months. The mother testified that the longest housing she maintained was on Massard because her boyfriend was able to pay for it. That is the same boyfriend she testified against previously because he was abusive. She has not had her own housing since the juveniles were removed from her care. She is currently residing at the Salvation Army Shelter and was previously at Hope Campus, a homeless shelter, and the Women's Crisis Center, none of which have been stable. The mother was provided with two separate referrals for a psychological evaluation and did not participate. Virtually nothing has been completed on her case plan. The Court finds that the mother has no follow through. This is based on the testimony provided. Specifically, the Fort Smith Public Schools went above and beyond to provide curbside pickup for the juveniles with which she did not comply. The IFS provider, Shelby Fox, set up school based counseling, but the mother did not attend the meeting to [sic] that implemented. The protective services worker, Brittany Harp, provided the mother with printed directions and exact timing to get the juveniles to school and the mother still could not complete the task. The mother was provided with specific instructions in order to get her ID including directions to the Mexican Consulate last spring. The caseworker, Angela Solylo, provided the mother with an opportunity to participate in the Salvation Army transition program and the mother declined. The foster mother testified that she obtained a housing option for the mother which did not require an ID [sic] would allow the electricity to remain on until she was able to assume the payment. The mother did not follow through. The mother indicated that she has called all day long with no answer in order to get her ID or other information, however, the mother no longer has the phone she claims holds the proof. The Court finds that the juveniles have been involved with the Court for an extended period of time, having a FINS case prior to the Dependency-Neglect case, but the mother still exhibits the same problems as before.
It found that termination of appellant's parental rights was in the juveniles' best interest, finding that they were adoptable "as they are in a long term stable placement and the foster mother has indicated an intent to adopt" and that there was potential harm from appellant's "continued homelessness" and "absence of change in her situation over the course of this case." This timely appeal followed.
The rights of natural parents are not to be passed over lightly. The termination of parental rights is an extreme remedy and in derogation of the natural rights of parents. As a result, there is a heavy burden placed on the party seeking to terminate the relationship. However, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child.
We review termination-of-parental-rights cases de novo. 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. 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. 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. 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. We give a high degree of deference to the circuit court, because it is in a far superior position to observe the parties before it and judge the credibility of the witnesses.
Appellant argues first that the circuit court committed reversible error in terminating her parental rights on a ground that was not pled DHS's termination petition. Appellant argues in her brief to this court that "[t]he circuit court entered its termination order and terminated Patricia's rights based upon the aggravated-circumstances ground but it also terminated her rights on a ground that was not pled in the petition-the failure-to-remedy ground." Accordingly, appellant admits that one of the grounds upon which her parental rights were terminated was alleged in the petition. Only one ground must be proved to support termination. Appellant's second argument is that there was insufficient evidence to support the circuit court's aggravated-circumstances finding. Because this court holds that sufficient evidence supported the circuit court's aggravated-circumstances finding-addressed below-this court declines to address appellant's first argument as moot.
In making her sufficiency argument, appellant states that "here it was only speculative that services would not result in reunification because DHS never offered Patricia the appropriate and necessary services once the children entered foster care." However, a finding of "aggravated circumstances" does not require DHS to prove that meaningful services toward reunification were provided.
Looking specifically to the termination hearing, this court notes the following testimony. Appellant testified that immediately preceding the hearing, she had been employed for two weeks; had a new phone for two months; and had been living at the Salvation Army shelter for two days, following two weeks at a women's shelter. She denied receiving any help and asserted that she had never seen Fox, the IFS provider. Specifically, when asked "[i]f I understand your testimony correctly no one has offered you any assistance or followed through with any assistance and the first witness [Fox] was lying," she responded that she "[thought] so because [she had not] gotten any help till [sic] today." She testified that she tried not to call the juveniles too often "because it's really hard on [her]" and she "know[s] where they are[.]"
Contrary to appellant's assertions, Jana Petty, foster mom to the children, testified that she had tried to help appellant get an apartment. More specifically, Petty testified:
I had located an apartment for her, all she had to do was pay the first month's rent. The apartment manager was also a former foster child and he understood how hard it was for parents to get back on their feet. He offered to forego the cleaning deposit. That was at the Denver Street Apartments in Greenwood. There were two bedrooms and one bath. I had, uh -- I'm on some of the committees for the Head Start Program in Greenwood and one of them is the Social Services and we had contact with a lady that had put me in contact with the Adult Education Center. They offered to bring in an attorney to help with filling out paperwork to get citizenship. I contacted the Crawford/Sebastian Community Development and when Patricia got a job they would help her get her lights on, her utilities on. Oh, I also contacted HUD regarding assistance with rent and they said that they would help her because she fell under the abused women's laws; that all she had to do was come in and fill out the paper and tell them, you know, this is -- that she was in the shelter and they would help her get a place for her kids. Patricia had contacted me and said that they would not help her at the HUD office and so I had written all this information down and who I talked to, put it in a spiral notebook, gave it to her, because she had phone numbers, contact names; all she had to do was just call these people, get in touch with them and they were ready to help her. And when we had our Staffing she said she had thrown it away because it was no help to her.
Fox testified regarding attempts to get counseling set up for K.R. in her school that "[e]verything was in place; we just needed [appellant] to attend the initial intake there at the school. That did not occur while [Fox] had the case for IFS." Fox listed the following services attempted or completed for appellant: school-based counseling for the juveniles, getting HUD housing, reestablishing SNAP benefits, applying for TANNIF, setting up a P.O. Box as a "stable mail spot[,]" working with the Mexican Consulate and an immigration attorney to get appellant an ID and information to the HUD housing board.
Harp testified that during her assignment to the case from October 6, 2016, to December 13, 2016, she "did referrals for her for IFS, for a Psyche Eval [sic], [she] transported the kids to school on occasion and [she] worked with the school to come up with a transport plan to get the kids to school." When she was able to arrange transportation from the Rescue Mission for the children, "[she] provided detailed instructions on how to get everywhere [the children] needed to be for that. [She] wrote down the time to get them out of bed, the time that it would take to walk down there, what time [appellant] needed to leave the Mission to get there on time." She also had involvement with the Mexican Consulate and was part of the staffing in which appellant was advised "where the Consulate was going to be, when he or she was going to be there and what time [appellant] need to be there for it"; appellant did not indicate a need for assistance. She also testified to discussing the case plan and services during staffings, during which appellant communicated in English and never indicated that she did not understand any of the services or requests.
Angela Solylo, the family services worker who received the case on December 27, 2016, testified to DHS's "big concern" that G.L. wore pull-ups to school and had "very delayed" verbal skills. Appellant did not make contact with Solylo until February 2017, indicating that she was living with a friend-whom she would not identify-in an apartment-the address to which she would not give Solylo. The friend was later identified as Kohlhaas. She had assisted with trying to get appellant housing and had advised her at a staffing three weeks prior about a transitional-housing program she could get appellant into, as she was living in a shelter at the Salvation Army. Appellant "did not take [Solylo] up on the offer." Solylo was the FSW who saw appellant hand-in-hand with Kohlhaas in November 2016, after the entry of the circuit court's October 2016 restraining order. She could not verify appellant's income and stated that appellant told her "she [was] using somebody else's social security number and name[.]" Appellant declined a psychological evaluation and never completed a hair-follicle test.
It is clear to this court that the circuit court did not find appellant's assertions of lack of assistance to be credible. On the evidence before it-showing that DHS first sought protections in the home and sought emergency custody and, ultimately, termination of appellant's parental rights only after it was clear that services provided were not helping appellant-this court cannot hold that the circuit court erred. We hold that the circuit court's aggravated-circumstances finding was not clearly erroneous.
Affirmed.
Abramson and Harrison, JJ., agree.
The circuit court also terminated the parental rights of putative fathers Rene Ramirez and Ronny Hill in the same order; neither Ramirez nor Hill is a party to this appeal.
Having reached the age of majority at the time of the petition, though listed in the caption of the petition, appellant's eldest child is not a party to this matter and was not listed as a party to the matter beginning with the circuit court's ex parte emergency less-than-custody order.
Appellant filed a petition for contempt on February 28, 2017, asserting that she'd had only one visit with the juveniles since they had come into care and requested that she be awarded visitation with the juveniles. DHS responded to appellant's contempt motion on March 14, 2017, denying that appellant had only seen the juveniles once. It averred that it did not have contact with the mother until February 6, 2017, and she did not have a working phone.
Ark. Code Ann. § 9-27-341(b)(3)(B)(ii)(a) (Supp. 2017). The petition stated, among other things, that appellant had "not been able to maintain stable employment that [DHS was] able to verify."
Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) . The petition stated that it had been made aware of domestic violence between appellant and Kohlhaas since the case opened, that the circuit court had entered a restraining order between the two after hearing testimony regarding the domestic violence on October 5, 2017; that appellant was observed "hand-in-hand" with Kohlhaas on November 4, 2017, and admitted violating the circuit court's restraining order "on at least two occasions" when confronted; and that it would be a risk to the juveniles if appellant "continue[d] a relationship with the violent man she described" at the hearing.
Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a) . The petition stated that appellant "is in no better position today as she was when this case first opened" nearly two years prior, having "continued to change employment and residences throughout the case"; "not completed any other services offered to her and [having] been rather uncooperative during the pendency of the case"; and "[having] chosen to remain tied to Mr. Kohlhaas" and "not taken advantage of the services provided in order to reunify her with her children."
Beck v. Ark. Dep't of Human Servs. , 2017 Ark. App. 467, at 4, 528 S.W.3d 869, 872.
Id. (citing Fox v. Ark. Dep't of Human Servs. , 2014 Ark. App. 666, 448 S.W.3d 735 ).
Id.
Id. (citing Smithee v. Ark. Dep't of Human Servs. , 2015 Ark. App. 506, 471 S.W.3d 227 ).
Caruthers v. Ark. Dep't of Human Servs. , 2017 Ark. App. 230, at 3, 519 S.W.3d 350, 352 (citing Lively v. Ark. Dep't of Human Servs. , 2015 Ark. App. 131, at 4-5, 456 S.W.3d 383, 386 ).
Id.
Oliver v. Ark. Dep't of Human Servs. , 2017 Ark. App. 565, at 3-4, 531 S.W.3d 447, 450 (citing Anderson v. Douglas , 310 Ark. 633, 839 S.W.2d 196 (1992) ).
Caruthers, supra.
Id.
Id.
Bynum v. Ark. Dep't of Human Servs. , 2017 Ark. App. 471, at 11, 528 S.W.3d 859, 867 (citing Reid v. Ark. Dep't of Human Servs. , 2011 Ark. 187, 380 S.W.3d 918 ).
Ark. Dep't of Human Servs. v. State , 2017 Ark. App. 55, at 10-11, 512 S.W.3d 655, 661-62 (citing Hollimon v. Hollimon , 2016 Ark. App. 583, 2016 WL 6994813 ; Cotten v. Fooks , 346 Ark. 130, 55 S.W.3d 290 (2001) ("[A]s a general rule, appellate courts of Arkansas will not review issues that are moot. To do so would be to render advisory opinions, which the court will not do. Arkansas appellate courts have generally held that a case becomes moot when any judgment rendered would have no practical legal effect upon a then existing legal controversy.") ) (internal citation omitted).
Kohlman v. Ark. Dep't of Human Servs. , 2018 Ark. App. 164, at 9, 544 S.W.3d 595, 600-01 (citing Ford v. Ark. Dep't of Human Servs. , 2017 Ark. App. 211, 2017 WL 1277398 ; Draper v. Ark. Dep't of Human Servs. , 2012 Ark. App. 112, 389 S.W.3d 58 ); see Bonner v. Ark. Dep't of Human Servs. , 2018 Ark. App. 142, at 10, 544 S.W.3d 90, 95 (" 'Aggravated circumstances,' on the other hand, does not require proof that DHS provided meaningful or appropriate reunification services[.]").
The HUD housing application had been completed and appellant's status "had been accepted" and "approved for expedited HUD housing" as of November 16, 2016. The SNAP application was completed and approved. The TANNIF application was completed and denied. She never obtained the ID which was "needed to set up just about anything[.]" | [
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KAREN R. BAKER, Associate Justice
Appellant Kelley Patrick Mills lodged in this court an appeal of a January 25, 2018 order denying his pro se petition for writ of error coram nobis. The State filed its brief in which it contends that this court does not have jurisdiction over the appeal because the notice of appeal that Mills filed as to the January 25, 2018 order was not timely. Mills then filed a motion in which he seeks leave to file a reply brief with a supplemental addendum so that he may include evidence in support of his claim that this court should permit him to proceed with the appeal. Because the record that is before us does not support a basis for jurisdiction over the appeal, we dismiss the appeal and the motion is moot.
Whether an appellant has filed a timely and effective notice of appeal is always an issue before the appellate court, and absent an effective notice of appeal, the court lacks jurisdiction to consider the appeal and must dismiss it. McJames v. State , 2010 Ark. 74, 2010 WL 569752. Under Arkansas Rule of Appellate Procedure-Criminal 2(a) (2017), Mills was required to file his notice of appeal within thirty days of the date the order was entered. The deadline for filing fell on Saturday, February 24, 2018, and in accord with Arkansas Rule of Appellate Procedure-Criminal 17, Mills was required to file the notice of appeal no later than Monday, February 26, 2018. The notice of appeal was not filed until February 28, 2018.
We note that there is a copy of an envelope in the record that indicates the notice of appeal was posted on the last day to file the notice. Our current rules of procedure provide an exception to the filing deadline for a notice of appeal of a judgment of conviction in circuit court or a circuit court order that denied postconviction relief on a petition under Arkansas Rule of Criminal Procedure 37.1. Under those provisions, the notice of appeal will be deemed filed on the date that an incarcerated inmate deposited his or her petition in the prison facility's legal-mail system, provided that the conditions set out in the rules have been satisfied. Ark. R. App. P.-Crim. 2(b)(3); see also Ark. R. Crim. P. 37.2(g) (2017). Because this was an appeal of the denial of a petition for a writ of error coram nobis, the exception is not applicable under the circumstances.
As the notice of appeal was not timely filed and no exception is applicable, the lodging of the record in this court was clerical error. Accordingly, we lack jurisdiction to consider Mills's appeal and dismiss.
Appeal dismissed; motion moot.
Hart, J., dissents.
Josephine Linker Hart, Justice, dissenting.
When our Rules of Criminal Procedure are silent on a particular question, the general rule is to use our civil rules to supplement them. See, e.g. , State v. Rowe , 374 Ark. 19, 285 S.W.3d 614 (2008) (supplementing the criminal rules with Rule 60 of the Arkansas Rules of Civil Procedure ); see also Sanders v. State , 352 Ark. 16, 98 S.W.3d 35 (2003) (applying Arkansas Rule of Civil procedure 56 in a postconviction case). Accordingly, while it is true that Arkansas Rule of Appellate Procedure-Criminal (2)(b)(3) does not speak to Mr. Mills's situation, the gap in our rules must be supplemented by the civil rules.
Under Rule (5)(b)(2) of the Arkansas Rules of Civil Procedure, "service by mail is presumptively complete upon mailing." It is not disputed that Mr. Mills placed his notice of appeal in the mail within the time required by Rule 42 of the Arkansas Rules of Appellate Procedure-Criminal. We should therefore accept Mr. Mills's appeal and take up his motions.
I respectfully dissent.
Rule (2)(b)(3) was adopted by this court to address the holding in Hamel v. State , 338 Ark. 769, 1 S.W.3d 434 (1999), which specifically exempted the application of the Arkansas Rules of Civil Procedure from Rule 37 cases. Given the demonstrated irregularities that accompanied inmate filings, it appeared that inmates were being denied access to the courts. | [
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KAREN R. BAKER, Associate Justice
Petitioner Saba A. Makkali 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. He has also filed a motion for appointment of counsel and a motion to amend the motion for appointment of counsel. It is the third such petition filed in this court. In the petition, Makkali contends that the State, in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), withheld the fact that fingerprints other than his own were found inside the van that he was convicted of stealing. Because we find that Makkali's claim does not establish a ground for the writ and further find that he did not exercise due diligence in bringing the claim, the petition is denied. The denial of the petition renders the motions for appointment of counsel and to amend 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
Makkali, who was formerly known as Gary Cloird, is incarcerated pursuant to a 1992 conviction for rape and theft of a van for which he was sentenced to thirty years' imprisonment for rape and five years' imprisonment and a $ 1000 fine for theft. The sentences were ordered to run consecutively. This court affirmed. Cloird v. State , 314 Ark. 296, 862 S.W.2d 211 (1993). In 2002, Makkali's first petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis was granted by this court. Cloird v. State , 349 Ark. 33, 76 S.W.3d 813 (2002) (per curiam). The coram nobis petition alleged that DNA evidence related to the rape had not been turned over to defense counsel in violation of Brady . After a hearing on the petition, the trial court denied relief, and we affirmed. Cloird v. State , 357 Ark. 446, 182 S.W.3d 477 (2004). In 2011, Makkali filed a second coram nobis petition that was denied by per curiam order.
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 issuance of the writ).
Makkali contends that the State violated Brady by not revealing that fingerprints belonging to two other known suspects had been found in the van. He argues that evidence of the presence of fingerprints not his own would have established to the jury that he did not steal the van.
Makkali has not demonstrated a ground on which the writ should issue. There was testimony at Makkali's trial that there were fingerprints found in the van, but the investigating officers testified that there was no fingerprint or other physical evidence that tied Makkali to the theft. Further, defense counsel argued in closing that no fingerprint evidence implicating Makkali had been retrieved from the van. Thus, it was clearly known at the time of trial that there was fingerprint evidence in the van, but there was no fingerprint evidence to support the State's charge that Makkali had stolen the van. The bare fact that the fingerprints of two other men were found in the van was not proof that Makkali was never in the van.
Because the evidence concerning the fingerprints of other persons in the van was not in itself sufficient to establish that Makkali did not commit the theft, Makkali has not met his burden of showing that he was prejudiced in violation of Brady . Moreover, in determining whether the petitioner was prejudiced, the totality of the evidence to support the judgment must be considered. The strength of the evidence adduced at a petitioner's trial is an important consideration in a coram nobis proceeding because 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. Goins v. State , 2018 Ark. 312, at 6, 558 S.W.3d 872, 876. The mere fact that the fingerprints of two other people were found in the van does not establish that there existed some fact that would have prevented rendition of the theft judgment if it had been known at the time of trial. As stated, coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid, and Makkali's claims are not sufficient to overcome that presumption.
V. Petitioner's Failure to Act with Due Diligence
The State correctly asserts that Makkali was not diligent in bringing this proceeding. We have consistently held that due diligence is required in making an application for coram nobis relief, and in the absence of a valid excuse for delay, the petition can be denied on that basis alone. Green , 2016 Ark. 386, 502 S.W.3d 524. This court will itself examine the diligence requirement and deny a petition when it is evident that a petitioner failed to proceed diligently. Roberts , 2013 Ark. 56, 425 S.W.3d 771. Due diligence requires that (1) the defendant be unaware of the fact at the time of trial; (2) the defendant could not have, in the exercise of due diligence, presented the fact at trial; and (3) upon discovering the fact, the defendant did not delay bringing the petition. Mosley v. State , 2018 Ark. 152, 544 S.W.3d 55. It has been approximately twenty-six years since Makkali was convicted. Even if he had offered any substantiation for his claims that the State violated Brady , he has failed to meet the last of the three criteria for bringing his allegations pertaining to his theft conviction in his third coram nobis petition and after such a lengthy delay.
Petition denied; motions moot.
Hart, J., dissents.
Josephine Linker Hart, Justice, dissenting.
The majority has not given Mr. Makkali's Brady claim due consideration. While it was known that there were other fingerprints found in the van that Mr. Makkali was convicted of stealing, he was apparently not made aware of the fact that fingerprints were matched to two known suspects. This fact is of critical importance.
Under Arkansas law, in order to pursue a defense that implicates another person for the crime that you are charged with, you must present evidence that directly implicates that other person. Otherwise, evidence implicating a third person is inadmissible. Johnson v. State , 342 Ark. 186, 27 S.W.3d 405 (2000) ; Echols v. State , 326 Ark. 917, 936 S.W.2d 509 (1996). Withholding the fact that fingerprints found in the van belonged to identified suspects would have given Mr. Makkali a compelling defense that was otherwise not available. In my view, this is a textbook Brady violation. Accordingly, we should reinvest jurisdiction in the circuit court so that Mr. Makkali can pursue a writ of error coram nobis.
I respectfully dissent.
In 2016, Makkali unsuccessfully raised a similar claim in a habeas petition for scientific testing. In his petition, Makkali requested that fingerprint testing be conducted on the prints from the van. The petition was denied, and on appeal, this court affirmed, finding that "the absence of fingerprint evidence did not overcome the strong testimonial evidence supporting his conviction" for theft of the van and that further testing would not advance his conclusory claim of innocence. Makkali v. State , 2017 Ark. 46, at 7-8, 510 S.W.3d 240, 244. | [
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COURTNEY HUDSON GOODSON, Associate Justice
Appellant Russell Berger lodged in this court the instant appeal of an order that denied his pro se petition for leave to proceed in forma pauperis in which he sought to proceed with a civil-rights complaint against employees of the Arkansas Department of Correction (ADC). The order contested found that Berger was not indigent, must pay the statutory filing fee for the action, and set an initial partial filing fee to be collected by the ADC. We hold that, despite appellee's assertion to the contrary, the order is appealable, but because the order is not sufficient for our review, we remand for additional findings of fact.
In her brief, the appellee contends that the order contained in the record, which is titled as an "order setting initial partial filing fee," was not one that ruled on Berger's in forma pauperis petition. However, the order disposed of the petition by finding that Berger was not indigent. As the appellee acknowledges, Arkansas Rule of Civil Procedure 72 (2017) 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). The circuit court is to first make a specific finding of indigency based on the petitioner's affidavit before addressing whether the petitioner has stated a colorable cause of action. Ark. R. Civ. P. 72(c). Once the court makes a finding that the petitioner is not indigent, as it did in the order setting initial partial filing fee, the analysis is complete. Although the order does not make the explicit statement that the petition was denied when it concluded that Berger was not a pauper, by doing so, the order had that effect.
An order that determines an action and prevents a judgment from which an appeal might be taken is an appealable order under Arkansas Rule of Appellate Procedure-Civil 2(a)(2) (2017). McKenzie v. Pierce , 2012 Ark. 190, 403 S.W.3d 565. This is a situation where the circuit court's ruling, while technically interlocutory in nature, had the practical effect of a final ruling on the merits of the case because an incorrect ruling by the circuit court on the indigency question serves to prevent an indigent plaintiff from proceeding. See Doe v. Union Pacific R.R. Co. , 323 Ark. 237, 914 S.W.2d 312 (1996). An order setting an initial partial filing fee that finds a petitioner who requests leave to proceed in forma pauperis not indigent is an appealable order under Rule 2(a)(2). See Halfacre v. Kelley , 2018 Ark. 46, 538 S.W.3d 834.
The order in this case, however, is not sufficient for our review because it does not set forth the factual basis for the circuit court's finding that Berger was not a pauper. The order states that the court determined Berger was not indigent, but it gives no reason for the decision.
On appeal, the standard of review is whether the trial court abused its discretion in finding that petitioner was not indigent. Burmingham v. State , 342 Ark. 95, 27 S.W.3d 351 (2000). The criteria to be used in determining the indigency of a defendant are set out in Burmingham . Indigency is considered on a case-by-case basis, and the burden of establishing his status as a pauper is on the defendant claiming indigent status. Id. Although there is no set test for indigency, which is a mixed question of fact and law, some of the factors to be considered are (1) income from employment and governmental programs such as social security and unemployment benefits; (2) money on deposit; (3) ownership of real and personal property; (4) total indebtedness and expense; (5) the number of persons dependent on the appellant for support. Id. The ability of bystanders such as friends and family members to assist with expenses is not a factor in determining a petitioner's indigency, although an exception may be made if the petitioner has control or complete discretionary use of funds raised by others. Id.
When there are obvious defects in the underlying petition, this court may summarily dispose of an appeal from the denial of in forma pauperis proceedings. Wood v.State , 2017 Ark. 290, 2017 WL 4837357. Berger attached an affidavit in support of his petition in which he indicated that he had not been employed since 1998, that he had no other source of income, and, although his inmate welfare fund had shown deposits of a little over $100 in the preceding six months, that at the time he executed the affidavit he had no cash or valuable property. There is no obvious reason in the petition for the court to have found Berger was not a pauper. The order does not state that a hearing was held on the in forma pauperis petition and, if one occurred, no transcript was included in the record. The basis for the circuit court's determination that Berger was not indigent is therefore far from clear.
We accordingly remand to the circuit court for a supplemental order on the in forma pauperis petition that contains adequate findings of fact on this issue. We caution that this remand is for the limited purpose of further factual findings outlining the circuit court's basis for its determination that Berger was not a pauper. We are not remanding to permit the circuit court to reconsider its initial determination that Berger was not a pauper, but rather for the court to provide an explanation of its reasoning for that conclusion. The order is to be entered, and the supplemental record containing the order returned, within thirty days from the date of this opinion. Once the supplemental record is received, our Clerk is directed to set a new briefing schedule.
Remanded for findings of fact.
As discussed below, although the order did not specifically reference Berger's petition or indicate that it was denied, the order setting the partial filing fee is the only order in the record that disposes of the petition.
The certificate by the ADC officer that was attached to Berger's affidavit indicated that Berger had five cents in his account two days before the affidavit was signed. | [
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MIKE MURPHY, Judge
A jury in Conway County, Arkansas, found the appellants, Hankook Tire Company, Limited, and Hankook Tire America Corporation (collectively referred to at times as Hankook) strictly liable for injuries that the appellee, Elmer Philpot, suffered after the failure of a Hankook tire caused him to lose control of the dump truck that he was driving on State Highway 9 in Conway County on July 6, 2010. Hankook raises six arguments for reversal. We dismiss without prejudice for lack of a final judgment.
This is the second attempted appeal in this case. We previously dismissed without prejudice Hankook's appeal from the circuit court's order imposing attorney's fees as a discovery sanction in Hankook Tire Co., Ltd. v. Philpot , 2016 Ark. App. 386, 499 S.W.3d 250. There, we held that the order awarding attorney's fees was not a final appealable order because it did not adequately certify that it was a final judgment under Ark. R. Civ. P. 54(b). Id. , at 7-8, 499 S.W.3d at 253-54. We dismiss this appeal because the circuit court's judgment is not final as to one of the defendants in the case.
Appellant Hankook Tire Company, Limited, manufactures tires in South Korea and Europe, and appellant Hankook Tire America Corporation distributes the tires in the United States. Appellee Elmer Philpot was driving a dump truck that had a Hankook tire installed on the right front wheel. The tire failed as Philpot was driving on State Highway 9 on July 6, 2010, causing him to lose control of the truck and crash into a drainage ditch on the side of the highway. Philpot suffered severe injuries when the force of the impact ejected him through the truck's windshield.
The case was initially filed in June 2012 in Conway County. Philpot later filed an amended complaint on March 14, 2014. Philpot alleged that Hankook manufactured the inherently defective steel-belted tire, "Hankook 385/65R 22.5 Super Single radial medium truck tire," and distributed it for sale in Arkansas. The tire was installed on the right front wheel of a 1985 Ford 9000 dump truck, which was loaded with gravel and which Philpot was driving when the tire tread belt failed. Philpot alleged that Hankook was negligent in its design, testing, construction, and manufacture of the tire and in its failure to inspect the tire or warn of the defects that it knew or should have known to exist. Philpot further contended that the tire was unfit and unsafe for its intended use and purpose and that Hankook breached an implied warranty. Philpot also sued Kenneth Hedrick, his employer, and Tommy New, the owner of the truck, alleging that they were negligent for failing to properly inspect and maintain the tire for his use. All the defendants alleged that Philpot's own negligence contributed to his injuries, and all sought, if necessary, apportionment of liability and damages among the defendants. Mr. Hedrick, in particular, filed a cross-claim seeking a judgment against Hankook "for contribution as per the uniform contribution among tortfeasor's act against [Hankook] and also for indemnity against Hankook."
The case proceeded to a six-day trial that concluded on September 8, 2016. Philpot introduced evidence to support his theory that the tire's failure was caused by manufacturing defects. At the close of Philpot's case, the circuit court granted a directed verdict in favor of one of the defendants, Kenneth Hedrick, finding that Philpot had failed to introduce sufficient evidence to support his theory that Mr. Hedrick negligently failed to properly maintain and inspect the dump truck.
During the defense case, Hankook introduced evidence to support its theory that the tire's failure was caused by a combination of improper maintenance and damage from an impact with an object on the road. At the close of all the evidence, Hankook and Mr. Hedrick mutually agreed to dismiss their cross-claims against each other.
The jury thereafter returned a verdict finding that Hankook and Hankook America were strictly liable for Philpot's injuries, apportioning 90 percent of the fault to Hankook and 10 percent of the fault to Hankook America. The jury rejected Philpot's negligence claims against both Hankook companies, as well as the owner of the truck, Tommy New. Consequently, the circuit court entered a judgment awarding Philpot $1,080,000 in damages against Hankook and $120,000 in damages against Hankook America. The judgment further provided that "the Complaint and Crossclaims against the Separate Defendant, Tommy New, are hereby denied." However, neither the judgment nor any other written order addresses Philpot's negligence claim against Mr. Hedrick or Mr. Hedrick's cross-claim against Hankook.
The question whether an order is final and appealable is jurisdictional, and this court is obligated to consider the issue on its own even if the parties do not raise it. Price v. Carver , 2017 Ark. App. 75, at 2, 513 S.W.3d 877, 879. The requirement that an order must be final and appealable is observed to avoid piecemeal litigation. Id. An order is final if it dismisses the parties, discharges them from the action, or concludes their rights to the subject matter in controversy. Id. at 3, 513 S.W.3d 877, 513 S.W.3d at 879. An order is not final, therefore, when it adjudicates fewer than all the claims or rights and liabilities of fewer than all the parties. Id. (emphasis added).
Entry of a final judgment for fewer than all claims is allowed, however, under the following circumstances:
(1) When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment.
Ark. R. Civ. P. 54(b)(1) (2017). Here, the judgment does not conclude Philpot's negligence claim against Kenneth Hedrick or Mr. Hedrick's cross-claim against Hankook. There is likewise no certificate that complies with Rule 54(b)(1), and the directed verdict and voluntary dismissal were not reduced to a written order, as they must for the judgment to be final and appealable. See Yanmar Co., Ltd. v. Slater , 2011 Ark. App. 167, at 3-4, 2011 WL 715972. We therefore dismiss the appeal without prejudice, and we urge the parties to ensure, in the event of a future appeal, that these claims-and any others that may remain pending- are resolved by written order.
We take this opportunity to also note that Hankook's addendum fails to comply with our rules. An appellant's addendum "shall contain true and legible copies of the non-transcript documents in the record on appeal that are essential for the appellate court to confirm its jurisdiction, to understand the case, and to decide the issues on appeal." Ark. Sup. Ct. R. 4-2(a)(8) (2017). Hankook's addendum omits several pleadings and fails to include orders that are relevant to this court's jurisdiction; namely, the orders dismissing defendants Bayou Transport and Still Kickin' Inc. from the case, see supra note 1, and partially granting Hankook's motion for summary judgment on various claims, including breach of warranty. The addendum also omits the jury's verdict forms. In order to comply with our rules, Hankook must include these documents, as well as any others bearing on our jurisdiction and other issues, in the addendum of any future appeal. The deficiencies we have noted are not to be taken as an exhaustive list, and we strongly encourage Hankook, in the event of a future appeal, to review the rules and to ensure that no other deficiencies are present in the addendum.
Dismissed without prejudice.
Gruber, C.J., and Glover, J., agree.
Additional defendants, Bayou Ridge Transport and Still Kickin' Inc. were dismissed from the case in an order entered on June 27, 2013.
The judgment also does address Hankook's alleged cross-claim against Mr. Hedrick. Even assuming that Hankook raised such a cross-claim, Hankook's abandonment of "any pending or unresolved claim" in its notice of appeal "operate[s] as a dismissal [of those claims] with prejudice effective on the date that the otherwise final order or judgment appealed from was entered." Ark. R. App. P.-Civ. 3(e)(vi) (2017). | [
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PHILLIP T. WHITEAKER, Judge
This appeal arises from a decision of the Pulaski County Circuit Court determining ownership of certain real property located in Pulaski County as between two family members-Ethel Love and her niece, Adrianne O'Neal. The trial court denied Ethel's claim for adverse possession, concluding that Ethel's occupancy of the property had at all times been permissive. The court then granted Adrianne's claim for unlawful detainer, finding that Adrianne was the sole and exclusive owner of the property. Ethel appeals those findings. Because the trial court's finding of permissive use was clearly erroneous, we reverse and remand for further consideration of Ethel's adverse-possession claim.
This case is before us for the third time. While our previous opinions set forth the facts in some detail, a brief review of those facts and the appellate history of this action are necessary for a complete understanding of the current posture of the case.
The property at issue here was originally owned by Herbert Love, individually. Herbert is Adrianne's father and Ethel's brother. During his lifetime, Herbert executed two seemingly conflicting deeds to the property.
Adrianne traces her ownership interest back to a 1995 deed from Herbert, which purportedly granted an interest in the property to her mother, Gloria Love. The 1995 deed was a warranty deed from Herbert Love and Gloria Love, husband and wife, to Herbert Love and Gloria Love. Although issued in 1995, the warranty deed was not recorded until October 2014. Before this deed was recorded, Gloria conveyed her interest in the property by quitclaim deed to Adrianne in June 2014.
Ethel, who has lived on the property since 1999, traces her ownership interest back to a 1999 quitclaim deed purportedly granting Herbert's interest in the property to her. When Herbert executed the quitclaim deed, however, he was still married to Gloria, although they were estranged at the time. After the conveyance, Herbert continued to live on the property with Ethel and did so until his death in 2004.
At the time of his death, Herbert was still married to, but estranged from, Gloria. Ethel remained on the property after his death, paid taxes and insurance thereon, and made some improvements thereto. Gloria, however, took no action with regard to the property after Herbert's death until she executed the quitclaim deed to Adrianne in 2014. She never requested that the property be assessed in her name after Herbert's death; she never paid the property taxes, insurance, or utilities on the property; she never performed any maintenance or repairs; and she never asked Ethel to vacate the property.
The current dispute arose in 2014 when Adrianne served Ethel with a notice to vacate and intent to issue a writ of possession, and Ethel refused to vacate the property. When Ethel refused, Adrianne filed an action for unlawful detainer against Ethel. Ethel denied the action, claiming to be the title owner to the property. She also defended based on multiple theories including adverse possession, statute of limitations, and the theory of being a good-faith purchaser. Ethel additionally filed a counterclaim seeking to quiet title alleging (1) fee-simple ownership by exclusive possession under a claim of right and payment of taxes since 1999; (2) adverse possession since 1999; and (3) that Gloria had abandoned any homestead rights or dower interest in the property by failing to assert them within the applicable limitations period. Adrianne responded by denying the counterclaim. The trial court quieted title in the property to both Ethel and Adrianne as tenants in common with equal shares to the property. All other claims of the parties were denied and dismissed with prejudice. Both sides appealed.
In the initial appeal, O'Neal v. Love , 2015 Ark. App. 689, 476 S.W.3d 846 ( O'Neal I ), we concluded that Gloria and Herbert owned the property as tenants by the entirety by virtue of the 1995 warranty deed. We then ruled that the trial court erred as a matter of law in finding Ethel and Adrianne to be tenants in common. We reversed and remanded for consideration of Ethel's adverse-possession and bona-fide-purchaser claims.
Following our decision in O'Neal I , the trial court on remand found that Gloria became the sole owner of the property upon Herbert's death based on the 1995 warranty deed, despite it being unrecorded until 2014. The trial court, however, then concluded that Ethel's actions with regard to the property were consistent with that of a bona fide purchaser for value, not of an adverse possessor. The court found that as a bona fide purchaser for value, Ethel was the sole and exclusive owner of the property, quieted title in her name, and denied her adverse-possession claim.
Adrianne appealed the trial court's order. In the second appeal, O'Neal v. Love , 2017 Ark. App. 336, 523 S.W.3d 381 ( O'Neal II ), we again reversed the decision of the trial court. We held that when Ethel obtained title to the property by quitclaim deed in 1999, she only obtained such interest as Herbert had in the property at the time of the execution of the quitclaim deed. At that time, Herbert owned the property with Gloria as tenants by the entirety. Thus, when Herbert died in 2004, his interest (and therefore Ethel's interest as a bona fide purchaser) in the property was extinguished, and Gloria became the sole owner of the property. We then remanded for the trial court to reconsider Ethel's adverse-possession claim.
On remand from O'Neal II , the trial court denied Ethel's adverse-possession claim, finding that she had moved onto the property at the invitation of and with the permission of Herbert; that Ethel admitted her occupation of the property was permissive; and that the permission was not withdrawn until the notice to vacate was posted on June 26, 2014. The court noted that Ethel never took any action to communicate or indicate to Gloria that she intended to adversely possess the property and that Gloria was never placed on notice of Ethel's intent to adversely possess the property. The court further noted that there was no evidence regarding the value of any repairs made to the property or the amount of insurance or utilities that were paid following the death of Herbert. The court then found that Gloria had transferred her interest in the property to Adrianne in 2014 and that Adrianne withdrew permission for Ethel to reside on the property. Based on these findings of fact, the court concluded that Ethel was at all times a tenant on the property and that her occupancy of the property did not become adverse until June 26, 2014, when the notice to vacate was posted. As such, Adrianne's claim was not barred by the statute of limitations and her action for unlawful detainer was timely. The trial court further ruled that, because Ethel's occupancy of the property before June 26, 2014, was permissive, her adverse-possession claim-particularly that her possession of the property was hostile and with the intent to hold against the true owner-failed. As a result, the court concluded that Adrianne was the sole and exclusive owner of the property and granted her claim for unlawful detainer against Ethel.
Ethel now appeals, arguing that the trial court erred in finding that her possession of the property was permissive. In adverse-possession and quiet-title actions, we conduct a de novo review on the record. Morrison v. Carruth , 2015 Ark. App. 224, at 2, 459 S.W.3d 317, 319. We will not reverse a finding of fact by the trial court unless it is clearly erroneous. Id. In reviewing a trial court's findings of fact, this court gives due deference to that court's superior position to determine the credibility of the witnesses and the weight to be accorded their testimony. Strother v. Mitchell , 2011 Ark. App. 224, 382 S.W.3d 741. We do not, however, defer to the trial court on a question of law. Peavler v. Bryant , 2015 Ark. App. 230, 460 S.W.3d 298.
The trial court here found that Ethel had moved onto the property at the invitation of Herbert and with his permission and that the permissive nature of her possession was never revoked. As a result, the trial court concluded that Ethel's occupancy of the property was not hostile or adverse for purposes of claiming adverse possession. We conclude this finding is clearly erroneous.
In 1999, Herbert deeded the property in question to Ethel pursuant to a quitclaim deed. At that time, Ethel became an owner of the property. Thus, Ethel's possession of the property was not as a permissive user as found by the trial court, but as that of an owner. When Herbert died in 2004, Ethel's ownership interest in the property was extinguished. Despite Herbert's death and the extinguishment of her ownership interest, Ethel continued to reside on the property, maintain it, improve it, assess it, and pay taxes on it. Upon Herbert's death, Gloria, by virtue of her position as a tenant by the entirety, became the sole owner of the property in question. Despite Gloria's ownership, Gloria never explicitly gave Ethel permission to remain on the property. Based on the foregoing, we agree that the trial court's finding that Ethel's possession of the property was permissive is clearly erroneous.
Because the trial court found that Ethel's use was permissive, the court did not consider whether Ethel's continued possession of the property after Herbert's death became adverse as to Gloria. To prove the common-law elements of adverse possession, a claimant must show that he or she has been in possession of the property continuously for more than seven years and that the claimant's possession has been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. Id. It is ordinarily sufficient proof of adverse possession that the claimant's acts of ownership are of such a nature as one would exercise over his or her own property and would not exercise over the land of another. Id. Whether possession is adverse to the true owner is a question of fact. Id. When a landowner takes possession of land under the belief that he or she owns it, encloses it, and holds it continuously for the statutory period under claim of ownership, without recognition of the possible right of another on account of mistake, such possession is adverse and hostile to the true owner. Smith v. Boatman , 2017 Ark. App. 488, at 6, 529 S.W.3d 254, 258 ; Dickson v. Young , 79 Ark. App. 241, 85 S.W.3d 924 (2002) (citing Davis v. Wright , 220 Ark. 743, 249 S.W.2d 979 (1952) ; Butler v. Hines , 101 Ark. 409, 142 S.W. 509 (1912) ). Additionally, in 1995, the General Assembly added as a requirement for proof of adverse possession that the claimant prove color of title and payment of taxes on the subject property or contiguous property for seven years. Ark. Code Ann. § 18-11-106 (Repl. 2015). Because the court did not consider the remaining adverse-possession factors, we reverse and remand for the trial court to reconsider Ethel's adverse-possession and quiet-title claims.
Reversed and remanded.
Klappenbach and Hixson, JJ., agree.
O'Neal v. Love , 2015 Ark. App. 689, 476 S.W.3d 846 ; O'Neal v. Love , 2017 Ark. App. 336, 523 S.W.3d 381.
Ethel subsequently amended her counterclaim to include a request for damages to recover for improvements and taxes paid on the property in the event the court did not quiet title in her name. Adrianne again denied the allegations in the amended counterclaim.
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BART F. VIRDEN, Judge
Tarrance Rawls appeals the Pulaski County Circuit Court decision denying his request for rehabilitative alimony. Tarrance also argues that the circuit court incorrectly divided the marital debt and failed to equally divide a bank account with a balance of $40,000. We affirm.
I. Relevant Facts
On October 10, 2016, Brandi Yarberry (Rawls) filed a complaint for divorce from Tarrance Rawls in which she asked the circuit court to decide, among other issues, the property rights and obligations of the parties. The parties have one child, AR, who was born in 2014. Tarrance filed a response and a counterclaim for separate maintenance. A hearing was held on December 21, 2016, and a temporary agreed order was read into the record. In the agreed order, the parties agreed that Tarrance would have exclusive use and possession of the parties' rental home through the end of the lease in June 2017. Tarrance agreed to be responsible for the lease payment and utility bills, and Brandi agreed to pay Tarrance $1,000 on December 21, 2016, $900 on January 1, 2017, and $900 on January 15, 2017. Beginning February 1, 2017, Brandi agreed to deposit $2,700 into Tarrance's checking account on the first of each month through the final lease payment in June. The parties agreed that neither party would pay child support and that they would each pay half the cost of daycare. The parties also agreed that they would equally divide any healthcare costs not covered by insurance.
On March 23, 2017, Brandi filed a motion for contempt in which she alleged that Tarrance had not paid the lease, the utilities, or his half of the daycare expenses as they set forth in the temporary agreed order. On May 1, 2017, Brandi filed a motion for abatement asserting that she should be released from her obligation to make payments to Tarrance.
The circuit court held a final divorce hearing on September 20, 2017. At the hearing, Brandi explained that when she and Tarrance married in 2014, she earned around $50,000 a year as a medical resident. Brandi explained that when she finished her residency and started earning more money, Tarrance quit working several side jobs he had taken. She testified that she did not ask him to quit but that they had agreed he was able to quit. Brandi maintained that despite receiving roughly equal incomes during their marriage, she paid more of the bills, and Tarrance spent more money on himself. She explained that they were "often in financial distress, despite all of that, because there was lots of spending on his part."
Brandi, a child psychiatrist, testified that she is now employed as a contract physician at Pinnacle Pointe Hospital. She explained that because she is a contract physician no taxes are taken out of her paycheck, and she deposits 30 percent of each paycheck into a "tax account." Brandi's net monthly income is $13,891.71. Brandi testified that she pays $970 a month for rent, she plans to start depositing $1,500 a month in a 401k retirement account, and she pays $700 a month for health insurance for her and AR. Brandi testified that she had not started making payments on her student-loan debt; however, she and Tarrance had planned that she would begin doing so in 2018 and that her student-loan payment would be $5,000 a month. She testified that she has two student loans-one for $16,948 and one for $368,839. Brandi testified that she owes Cynthia Rawls $3,500 in loan repayment, and she owes $4,000 in repayment to her grandmother. Brandi testified that her credit-card debt is around $5,500 on one card, $1,600 on a second card, and $500 on a third. She owes $1,200 for her work computer.
Brandi testified that Tarrance owned four cars during the marriage. When the parties married, Tarrance owned a truck. Soon after they were married, he upgraded to a Lexus SUV. Brandi owned a small Lexus coupe, but she replaced that car with Tarrance's Lexus SUV so that Tarrance could buy a GMC Yukon. Brandi testified that after he purchased the Yukon, Tarrance bought his dream car, a BMW 650i convertible. Brandi stated that she had felt bullied by Tarrance and that she signed the note for the BMW against her financial advisor's advice. Brandi explained that Tarrance had promised that the purchase of the BMW would not affect their finances and that he would work a side job if necessary to make the payments.
Brandi testified that RPM Management Co. is pursuing $6,542.61 in unpaid rent against both her and Tarrance. Brandi explained that Tarrance did not pay the rent on their marital home despite their agreement that she would pay him her share for the remainder of the lease agreement and that he would make the payment to the leasing agent. Tarrance told Brandi that he wanted to buy the rental house, and though she doubted his ability to do so, that was the arrangement. Tarrance stopped making payments on the lease in March even though it did not expire until June. Brandi also explained that Tarrance did not pay for daycare as they had agreed and that she would like the court to order him to pay the $2,150 he owes her. Brandi listed about $150 in dental and doctor bills for AR that Tarrance did not pay. Brandi testified about various utility bills, overdrawn accounts, taxes, and cable bills that Tarrance did not pay and that she paid to keep her credit rating from being negatively affected. Brandi explained that she paid the $1,300 tax on Tarrance's Yukon because the DMV would not let her register her car until that debt was paid, and she requested reimbursement for that payment.
Brandi clarified that the decision to file their taxes separately was one they made together to limit the financial impact of her student loan debt on their family. Brandi testified that Tarrance did not like the decision, and he did not want to meet with the financial advisor to discuss the matter as she suggested, but he agreed to file separately. Brandi explained that she encouraged Tarrance to file his taxes, and he chose not to.
Tarrance testified that he had been a police officer for fifteen years and that he hoped to become a detective. Tarrance stated that his biweekly net income is $1,650.19. Tarrance testified that Brandi had asked him not to file his taxes and that she had told him that she would help him pay the debt at a later time. He estimated that he owes $7,000 in delinquent taxes. Tarrance stated that he paid $800 a month in rent to live in his mother's home, but he did not provide proof of payment of rent. He maintained that he paid $475 a month in childcare costs for both AR and a child from a previous relationship, but he did not provide proof of that expense either. As for AR's childcare, he explained that he stopped paying after having made four payments. Tarrance testified that the temporary agreed order concerning the lease and utility bills set forth that he would be responsible for making those payments; however, he asserted that because Brandi was late paying him her portion of the lease one time, the lease payment was late, and RPM refused to accept payment. Tarrance stated that he spent Brandi's half of the lease payments, in total $10,900, on "rent and monthly household expenses." Tarrance admitted that he paid the bills that were in his name only, and he admitted that he paid the note on his BMW every month. He also testified that he bought the BMW against the financial advisor's advice and after he quit his moonlighting jobs. He testified that he had Brandi's permission to buy the car.
Tarrance explained that he failed to give notice when he ceased moonlighting and that when someone fails to give notice, employers no longer trust that person. He testified that he was happy to quit his extra jobs and that he did not think there would be a financial impact when he quit. Tarrance testified that he needs from $1,300 to $1,500 a month for two years to catch up on his bills and taxes. Tarrance stated that during their marriage, he paid for Brandi's board exams, DEA license, and medical license, totaling $3,800.
In the divorce decree entered October 27, 2017, the circuit court made the following detailed findings: Brandi is employed as a children's mental health professional at Pinnacle Pointe Hospital. She is akin to an independent contractor, and her employer does not withhold taxes from her paycheck; thus, Brandi deposits 30 percent of her income into a "tax account" with an approximate balance of $40,000 at the time of the hearing. Brandi's income is $13,891.71 each month, and her monthly expenses are $11,740. She has not yet begun make payments on her student loans, which amount to $368,839, but plans to begin doing so in 2018. Tarrance is a police officer, and he earns $52,000 a year and $1,378.04 biweekly. He plans to become a detective, which will increase his salary.
Tarrance's monthly expenses are $5,274.69, and that amount includes $475 a month in child care, though he does not pay that expense regularly. Tarrance's car payment is $864.07 a month. When the parties were married, they were each earning around the same income. Early in the marriage, Tarrance worked as an off-duty police officer at various places, and he might have earned more money than Brandi during that time. He stopped moonlighting when Brandi began working as a mental-health professional, and her salary increased. Both parties are in good health and are relatively young. During the marriage, the parties entered into a lease agreement for a rental home. When the parties separated in October 2016, Brandi agreed to pay Tarrance a portion of the expenses for the home, and Tarrance agreed to make the payments. Brandi was late making one payment to Tarrance while she was unemployed, and she paid Tarrance around $10,900 between October 2016 and April 2017. In April, Brandi learned that Tarrance was not paying the lease, and she moved to abate the payments due to Tarrance's noncompliance with the agreement. Tarrance was unable to explain how he spent the money. The management company enforcing the lease sued Brandi and Tarrance for $6,875 in unpaid rent.
The circuit court determined that Tarrance was solely responsible for the remaining debt on the lease, finding that
Plaintiff paid Defendant the amounts she was to have paid him, yet he did not use that money to fulfill his obligations under the lease. Defendant's hands are unclean in this regard.... Any other outcome would be inequitable and would punish the Plaintiff for doing what she was ordered to do, and reward Defendant for failing to do what he agreed to do.
The circuit court ordered that because Tarrance had not fulfilled his obligation to pay half of AR's daycare, $237 in child support would be automatically deducted from each paycheck. Brandi was ordered to maintain AR's health insurance, and the circuit court found that the parties would split any medical expenses that arose and were not covered by health insurance.
The circuit court ordered that Brandi and Tarrance are solely responsible for their own car payments and insurance and that each party would hold the other harmless if called on to make payments on the other party's car. Both parties were encouraged to trade in their vehicles for "something that is more in line with their budgets."
The circuit court denied Brandi's request for reimbursement of daycare expenses and out-of-pocket medical expenses "due to the disparity in the parties' earnings and earning capacity." Tarrance was ordered to reimburse Brandi for the personal-property tax she paid toward the Yukon, and the circuit court found that Tarrance was solely responsible for his tax debt. The circuit court denied Tarrance's request for $1,500 in monthly rehabilitative alimony, finding that
[t]he parties were married only three years. At the time of their marriage, their earnings were about equal. Plaintiff hired a financial advisor, and while Defendant went to see the financial advisor with the Plaintiff, he did not always follow the advice given by the advisor. Defendant is in good health, and, as previously mentioned, relatively young. He plans to become a detective, and he loves his career. He is highly employable. Plaintiff will ultimately make more money than Defendant; however, she will also be solely responsible for the repayment of over $360,000 in loans. Defendant is absolved of any responsibility to repay any portion of these loans.
Tarrance filed a timely notice of appeal. On appeal, Tarrance challenges the circuit court's decision to deny his request for rehabilitative alimony, to hold him solely responsible for the lease arrearage, and to refuse to divide Brandi's "tax account" equally between the parties. Tarrance's arguments are not well taken, and we affirm.
II. Points on Appeal
A. Rehabilitative Alimony
We review domestic-relations cases de novo on the record, but we will not reverse the circuit court's findings unless they are clearly erroneous. Page v. Page , 2010 Ark. App. 188, at 3, 373 S.W.3d 408, 410. A decision regarding alimony is a matter that lies within the circuit court's sound discretion and will not be reversed on appeal absent an abuse of that discretion. See Hiett v. Hiett , 86 Ark. App. 31, 158 S.W.3d 720 (2004). An abuse of discretion means discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Webb v. Webb , 2014 Ark. App. 697, at 3, 450 S.W.3d 265, 269. 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, 436 S.W.3d 491.
Rehabilitative alimony is "alimony payable for a short, but specific and terminable period of time, which will cease when the recipient is, in the exercise of reasonable efforts, in a position of self-support." Foster v. Foster , 2016 Ark. 456, at 10, 506 S.W.3d 808, 815(citing Bolan v. Bolan , 32 Ark. App. 65, 71, 796 S.W.2d 358, 362 (1990) ). Our courts have analyzed the concept of rehabilitative alimony using the same factors that apply to permanent alimony. Id. We have stated that the purpose of alimony is to rectify the economic imbalances in earning power and standard of living in light of the particular facts in each case. Taylor v. Taylor , 369 Ark. 31, 250 S.W.3d 232 (2007). The primary factors to be considered in determining whether to award alimony are the financial need of one spouse and the other spouse's ability to pay. Kuchmas v. Kuchmas , 368 Ark. 43, 243 S.W.3d 270 (2006). In addition, the following secondary factors should be considered: (1) the financial circumstances of both parties; (2) the couple's 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 of the parties; (6) the amount of income of each that is spendable; (7) the earning ability and capacity of each party; (8) the property awarded or given to one of the parties, either by the court or the other party; (9) the disposition made of the homestead or jointly owned property; (10) the condition of health and medical needs of both husband and wife; (11) the duration of the marriage; and (12) the amount of child support. Moore v. Moore , 2016 Ark. 105, 486 S.W.3d 766.
Tarrance's argument is not well organized or particularly cogent, and at times in his brief he admits that he was careless with money during the marriage. On appeal, Tarrance seems to assert that the circuit court erred because it did not rectify the economic imbalances between the parties by awarding him rehabilitative alimony, and he focuses on his inability to pay his expenses and Brandi's ability to pay alimony. We disagree with his position that because Brandi is able to pay alimony, it was error for the circuit court to deny his request.
In denying Tarrance's request, the circuit court considered the short duration of the marriage and that they both had entered the marriage earning about the same income. The circuit court found that Tarrance is highly employable, in good health, relatively young, and he plans to advance in the career that he loves. The circuit court noted that while Tarrance attended meetings with Brandi's financial advisor, he failed to follow the advice given. The circuit court acknowledged that Brandi will ultimately earn more money than Tarrance but that she was also solely responsible for over $360,000 in student-loan debt.
On the record presented for our de novo review, we are not left with a distinct and firm impression that a mistake was made in the circuit court's denial of rehabilitative alimony. The circuit court clearly considered many secondary factors when it denied Tarrance's request for rehabilitative alimony, including the length of the marriage, the couple's past standard of living, the nature of the parties' income-both current and anticipated-the earning capacity of each party, the age and health of the parties, and the fact that Tarrance paid child support that amounted to one-half of the daycare expense. We hold that the circuit court did not act thoughtlessly, improvidently, or without due consideration, and on this point we affirm.
B. Allocation of Debt
For his second point for reversal, Tarrance argues that the circuit court erred by finding that he is solely responsible for the lease arrearage and his personal tax debt. We disagree and affirm the circuit court's allocation of debt.
The allocation of marital debt is an essential item to be resolved in a divorce dispute and must be considered in the context of the distribution of all the parties' property. Adams v. Adams , 2014 Ark. App. 67, at 16, 432 S.W.3d 49, 60. Under Arkansas Code Annotated section 9-12-315 (Repl. 2015) the presumption of equal division does not apply to the division of marital debts. Id. The circuit court has the authority to consider the allocation of debt in a divorce case. Baker v. Baker , 2013 Ark. App. 543, 429 S.W.3d 389. A circuit court's decision to allocate debt to a particular party or in a particular manner is a question of fact and will not be reversed on appeal unless clearly erroneous. Id. A finding of fact is clearly erroneous if, after reviewing all of the evidence, the appellate court is left with a definite and firm conviction that a mistake has been made. Brice v. Brice , 2013 Ark. App. 620, at 1, 2013 WL 5872290.
Tarrance's briefing of this issue is disorganized and difficult to follow, but he seems to assert that even though Brandi paid her agreed portion of the lease, he should not be responsible for his portion of the payments because Brandi "knew he couldn't afford it by himself." The circuit court's decision regarding the lease arrearage reflects Brandi's testimony that pursuant to the agreed temporary order, she paid her portion of the lease
directly to Tarrance, who was responsible for paying the leasing agent. The circuit court found that Tarrance had not made the lease payments, and he could not explain where the money Brandi paid him had gone; thus, it would be inequitable to punish Brandi for fulfilling her obligation and reward Tarrance for disregarding his promise to pay the lease. The circuit court expressed its intention to make an equitable decision in regard to the lease arrearage, and we hold that the circuit court did not clearly err by assigning this debt solely to Tarrance.
Tarrance also argues that the parties agreed to file taxes separately to lessen Brandi's student loan payment, which led to Tarrance's losing certain tax credits and his choosing not to file his taxes for three years; thus, Tarrance argues, the circuit court erred by not finding that Brandi should be responsible for his tax debt. The crux of Tarrance's argument seems to be that he and Brandi agreed that she would help him pay any delinquent taxes that arose from their arrangement and that she encouraged him not to file; however, Brandi testified at the hearing that she never suggested that Tarrance not file his taxes, and in fact, she encouraged him to file. Brandi testified that she was not sure what the tax consequences would be for Tarrance when they agreed to file taxes separately and that "I had wanted to go meet with the C.P.A. to learn this, to talk about this, and figure out a plan for our family, but he never went back with me. It never happened." We give due deference to the circuit court's superior position to determine the credibility of witnesses and the weight to be given their testimony.
Fields v. Fields , 2015 Ark. App. 143, at 3, 457 S.W.3d 301, 304. In light of Tarrance's and Brandi's conflicting testimony regarding the handling of the tax issues that arose during the marriage, we cannot say that the circuit court erred in allotting Tarrance's personal tax debt to him.
C. The Tax Account
Tarrance asserts that the circuit court clearly erred by not equally dividing the $40,000 in the "tax account." We disagree.
Arkansas Code Annotated section 9-12-315(a)(1)(A) provides that "at the time a divorce decree is entered, all marital property shall be distributed one-half (1/2) to each party unless the court finds such a division to be inequitable." Nevertheless, our property-division statute does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. Williams v. Williams , 82 Ark. App. 294, 108 S.W.3d 629 (2003).
At the hearing, Brandi testified that because she is a contract physician, Pinnacle Point pays her $18,000 a month without any deductions. She explained that on the advice of her financial advisor, 30 percent of each paycheck is diverted to an LLC account that is not distributed to her and is solely for the purpose of paying taxes. Brandi stated that her plan is to pay the full tax amount due for 2017 by the end of the year, which at the time of the hearing was only two months away. The circuit court acknowledges in the order that Brandi's employer "does not withhold taxes from Plaintiff's paycheck. Plaintiff sets aside thirty percent (30%) of her income and puts it in a tax account. At the time of the hearing,
she had paid no estimates on her taxes, but reckoned there was about $40,000 in the tax set aside account." The circuit court's decision reflects Brandi's testimony that because taxes were not automatically deducted from her paycheck, she was required to independently prepare for tax payments. Tarrance's argument that "[i]f the court would have awarded the appellant $20,000 of the amount in the bank account, the appellee would have made that much additional monies by the time that the taxes were due" does not acknowledge that the account was earmarked for tax payments. The circuit court took into account that Brandi is required to keep up with a tax-payment fund, whereas Tarrance employs the more typical automatic tax deductions from each paycheck. The circuit court's order acknowledges that the sole purpose of the LLC account is to pay income tax, and the decision effects an equitable distribution of marital property. We find no error, and we affirm.
Affirmed.
Gladwin and Vaught, JJ., agree.
In the divorce decree, the circuit court ruled that the motion to abate was moot and denied the motion for contempt.
The circuit court erred in its finding that Brandi's monthly expenses are $11,740 "independent of her student loan debt, which she has not yet started to pay." The amount found by the court includes Brandi's student-loan expense and retirement expense, which Brandi designated as expenses she was not paying at that time. The circuit court's total is incorrect; however, the error is immaterial to the analysis regarding the circuit court's decision to allow Brandi to retain the tax account in full. | [
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JOHN DAN KEMP, Chief Justice
Richard Alan Davis seeks leave from this court to proceed with a belated appeal of a circuit court order that dismissed his pro se petition for writ of habeas corpus filed pursuant to Arkansas Code Annotated sections 16-112-101 to -123 (Repl. 2016). Because the record reflects that Davis timely filed a notice of appeal but did not tender the record to this court in a timely manner, we treat the motion as a motion for rule on clerk. Marshall v. State , 2017 Ark. 208, 521 S.W.3d 456 (When the notice of appeal was timely filed, but the record was not timely tendered to this court, a motion for belated appeal is treated as a motion for rule on clerk.). Inasmuch as it is clear from the record that Davis could not prevail on appeal if the appeal went forward, the motion is dismissed. An appeal of the denial of postconviction relief, including an appeal from an order denying a petition for writ of habeas corpus, will not be permitted to proceed when the appellant could not prevail. See Hill v. Kelley , 2018 Ark. 118, 542 S.W.3d 852, reh'g denied (May 24, 2018).
In his habeas petition, Davis contended that the writ should issue because his judgment of conviction entered in 1988 for capital murder, aggravated robbery, and theft of property was obtained in violation of the constitutional provision against self-incrimination, he was denied effective assistance of counsel at trial and in his proceeding under Arkansas Rule of Criminal Procedure 37.1 (1988), and his trial attorney did not perfect an appeal from the judgment of conviction in the case. None of the grounds is a basis for 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. Under our statute, a petitioner for the writ who does not allege his or her 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 or she is being illegally detained. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2006). A habeas proceeding does not afford a prisoner an opportunity to retry his or her case, and it is not a substitute for direct appeal or for seeking postconviction relief. Watkins v. Kelley , 2018 Ark. 215, 549 S.W.3d 908.
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. 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. Collier v. Kelley , 2018 Ark. 170.
Davis argues that the judgment in his case was illegal on its face and the trial court lacked jurisdiction to enter the judgment because he was not advised by police investigators during interrogations before trial of his right against self-incrimination as required by Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The issue concerns factual questions on the admissibility of evidence that could have been raised at trial and addressed there. It is a claim of a constitutional violation and trial error that does not implicate the facial validity of the judgment or the jurisdiction of the trial court. As such, the allegation is not within the purview of a habeas corpus proceeding. Anderson v. Kelley , 2018 Ark. 222, 549 S.W.3d 913, reh'g denied (Aug. 2, 2018); see also Ratliff v. Kelley , 2018 Ark. 105, 541 S.W.3d 408 (noting that assertions of trial error and due-process claims do not implicate the facial validity of the judgment or the jurisdiction of the trial court).
With respect to Davis's allegation that he was not afforded effective assistance of counsel, ineffective-assistance-of-counsel claims are not cognizable in habeas proceedings. McConaughy v. Lockhart , 310 Ark. 686, 840 S.W.2d 166 (1992). Such allegations are properly raised under Arkansas Rule of Criminal Procedure 37.1. A habeas proceeding is not a substitute for filing a timely petition for postconviction relief or an opportunity to raise the issue again if it has already been considered in a Rule 37.1 proceeding. Barber v. Kelley , 2017 Ark. 214.
As to Davis's contention that the writ should issue because his attorney failed to pursue a direct appeal from the judgment in his criminal case, the argument does not establish a ground for the writ. Davis's remedy for counsel's failure to pursue a direct appeal was a timely motion for belated appeal. In 2001, Davis filed a motion for belated appeal of the judgment, but it was denied because it was not timely filed within eighteen months of the date the judgment was entered as required by Arkansas Rule of Criminal Procedure 36.9, which was in effect at the time the judgment was entered. Davis v. State , CR-00-899, 2001 WL 43647 (Ark. Jan. 18, 2001) (unpublished per curiam). A habeas proceeding does not take the place of a motion for belated appeal timely filed in accordance with the prevailing rules of procedure.
Motion treated as a motion for rule on clerk and dismissed.
Hart, J., dissents.
Josephine Linker Hart, Justice, Dissenting.
Mr. Davis has not yet perfected his appeal. In fact, he has not even been allowed to file his appeal. Accordingly, this court's jurisdiction is limited to considering his motion for rule on clerk. Thus, while dismissing Mr. Davis's appeal might comport with due process, summary dismissal, purportedly on the merits, does not.
Motions for rule on clerk are governed by Arkansas Supreme Court Rule 2-2, which states:
(a) Record Tendered Late. Where a record is tendered which, on its face, appears to be outside the time allotted for docketing the case, it shall be the duty of the Clerk to notify the attorney representing the appellant and note on the record the date the tender was made.
(b) Docketing for Purpose of Presenting Request for Rule-Service of Motion. If the appellant contends that the Clerk is in error in refusing to file the record, then upon payment of the regular filing fee, the case shall be tentatively docketed and numbered. The appellant shall then file a motion in accordance with Rule 2-1 to require the Clerk to docket the case as an appeal. A copy of the motion shall be served by the appellant upon opposing counsel, and evidence of service shall be furnished to the Clerk with the motion at the time of filing.
(c) Procedure When Rule Granted. If the motion is granted, the case shall proceed in the regular manner for appeals without payment of any additional fee.
(d) Procedure When Rule Denied. If the motion is denied, the case shall be stricken from the docket, the jurisdiction of the Court terminated, and the filing fee forfeited.
In the case before us, Mr. Davis's record was only tendered pending the resolution of his motion for rule on clerk. Ark. Sup. Ct. R. 2-2(a). In order for this appeal to be considered on the merits, the motion for rule on clerk must be granted. Ark. Sup. Ct. R. 2-2(c). Thus it is patently absurd for this court to dispose of this case on a record that is not before it.
Regarding Mr. Davis's motion for rule on clerk, he alleges irregularities in the handling of his notice of appeal by the Lee County Circuit Clerk. Given the recent history of how inmate filings were handled by circuit clerks in this state, see, e.g. , Halfacre v. Kelley , 2016 Ark. 171, in my view, it is incumbent on this court to treat such accusations with a little more circumspection. Under the Arkansas Constitution, all persons, including prison inmates, have a constitutional right to an appeal. Ark. Const. amend. 80 § 11. This court should safeguard the constitutional rights to due process and access to the courts of all persons.
I dissent.
Arkansas Rule of Appellate Procedure-Civil 5(a) (2017) provides that "[t]he record on appeal shall be filed with the clerk of the Arkansas Supreme Court and docketed therein within 90 days from the filing of the first notice of appeal," unless the time is extended. See State v. Bragg , 2016 Ark. 242, at 6, 2016 WL 3346350. The record in this case contains no motions or orders for extension of time. Davis filed his notice of appeal on April 9, 2018, and he tendered the record on appeal and filed his motion to proceed with the appeal here on September 25, 2018, which was 169 days after he had filed the notice of appeal.
In 2005, the judgment reflecting the convictions entered in 1988 was amended as the result of Davis's having filed a petition for postconviction relief that was granted in 1991 on the ground that the aggravated-robbery and theft-of-property convictions were underlying offenses to the charge of capital murder. (The cause of the delay in amending the judgment is not clear from the record.) Also in 1988, Davis was found guilty by a jury in a separate case of an additional aggravated robbery. A direct appeal was not perfected from any of the judgments. | [
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N. MARK KLAPPENBACH, Judge
On November 29, 2017, appellant Larry David Davis appeared before the Clark County Circuit Court to enter a negotiated plea of no contest to the crimes of commercial burglary, theft of property, and breaking or entering, as charged in circuit court case number CR-17-70. The State had accused Davis of breaking into the office of the Southfork Truck Stop in Clark County and stealing money on April 4, 2017. At the conclusion of the plea hearing, the trial court sentenced Davis, as a habitual offender, to concurrent prison terms for a total of thirty years to be served in the Arkansas Department of Correction. A sentencing order was filed to memorialize the plea and sentencing. Davis filed a petition for postconviction relief in case number CR-17-70 pursuant to Arkansas Rule of Criminal Procedure 37. The circuit court entered an order denying Davis's petition without conducting an evidentiary hearing. Davis filed a timely notice of appeal from that order. We affirm.
When reviewing the trial court's ruling on a Rule 37.1 petition, the appellant is limited to the scope and nature of the arguments that he made below that were considered by the trial court in rendering its ruling. Pedraza v. State , 2016 Ark. 85, 485 S.W.3d 686. We do not address new arguments raised for the first time on appeal, nor do we consider factual substantiation added to bolster the allegations made below. Thornton v. State , 2014 Ark. 113, 2014 WL 1096263 ; Bridgeman v. State , 2017 Ark. App. 321, 525 S.W.3d 459.
We do not reverse the denial of postconviction relief unless the circuit court's findings are clearly erroneous. Johnson v. State , 2018 Ark. 6, at 2, 534 S.W.3d 143, 146. A finding is clearly erroneous when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that the circuit court made a mistake. Id. The trial court has discretion pursuant to Rule 37.3(a) to decide whether the files or records are sufficient to sustain the court's findings without a hearing. Wood v. State , 2015 Ark. 477, 478 S.W.3d 194. Davis does not argue on appeal that the circuit court's decision not to hold an evidentiary hearing on his postconviction petition was in error.
"The benchmark for judging a claim of ineffective assistance of counsel must be 'whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' Strickland [v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ]." Mancia v. State , 2015 Ark. 115, at 4, 459 S.W.3d 259, 264 (citing Henington v. State , 2012 Ark. 181, at 3-4, 403 S.W.3d 55, 58 ). Pursuant to Strickland , we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance of counsel must show that his counsel's performance fell below an objective standard of reasonableness. Mancia , 2015 Ark. 115, at 4, 459 S.W.3d at 264. A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Osburn v. State , 2018 Ark. App. 97, 538 S.W.3d 258. Second, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Id. The petitioner must show there is a reasonable probability that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. Additionally, conclusory statements that counsel was ineffective cannot be the basis for postconviction relief. Id.
The Strickland standard applies to allegations of ineffective assistance of counsel pertaining to possible prejudice in guilty-plea and sentencing proceedings. Mancia , 2015 Ark. 115, at 5, 459 S.W.3d at 264. There is no distinction between guilty pleas and pleas of no contest for purposes of Rule 37.1. See Seaton v. State , 324 Ark. 236, 920 S.W.2d 13 (1996) ; Harris v. State , 2017 Ark. App. 381, 526 S.W.3d 43. To establish prejudice and prove that he or she was deprived of a fair trial due to ineffective assistance of counsel, a petitioner who has pled guilty must demonstrate a reasonable probability that, but for counsel's errors, the petitioner would not have so pled and would have insisted on going to trial. Jones v. State , 2015 Ark. 119, at 5, 2015 WL 3484687. Further, "on appeal from the denial of a Rule 37 petition following pleas of guilty there are only two issues for review-one, whether the plea of guilty was intelligently and voluntarily entered, [and] two, were the pleas made on the advice of competent counsel." Mancia , 2015 Ark. 115, at 11, 459 S.W.3d at 267.
Davis argued in his Rule 37 petition that he was arrested without a valid warrant; that he was deprived of a preliminary or omnibus hearing; that Clark County has a corrupt and crooked judicial system that framed him for these alleged crimes; that he was forced or tricked into entering this plea; and that his privately retained attorney did not represent his interests but was instead assisting the State in acquiring convictions.
At the plea hearing, the trial court went over the written plea statement and the written negotiated plea agreement with Davis. Both documents were filed of record and bear the signatures of Davis and his attorney. Davis was advised by the court of the crimes with which he had been charged and the range of possible punishments for each crime. Davis affirmed that he understood that he was pleading no contest, acknowledged that he was waiving his right to a trial and to appeal, and acknowledged the possible range of sentences. Davis was asked if he had discussed this case completely with his attorney and whether he was satisfied with his attorney's services, and Davis said yes. Davis said that he had not been threatened, coerced, or pressured into entering a plea, nor had anyone promised him anything other than what his attorney had negotiated for him. Davis acknowledged that the circuit court did not have to follow the recommended sentence. When asked if he had "any doubts about your plea," Davis said no. He affirmed that he was not under the influence of any drugs or intoxicants, and he affirmed that he had a high school education and could read. The circuit court asked whether it could rely on the affidavits for arrest as the factual basis for what he did to commit the crimes, and Davis said yes. Davis's attorney recited that the agreement with the prosecutor was that Davis would be sentenced effectively to a thirty-year prison term by running the sentences concurrently, and Davis affirmed that this was what he expected.
During the plea hearing, Davis never asserted dissatisfaction or distrust regarding any acts or omissions of his privately retained attorney, and he has failed to offer anything other than bare assertions that his counsel was working against him in getting him to enter a plea. In the absence of an actual conflict, a petitioner alleging that counsel's performance was deficient due to another form of conflict must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A bare contention that counsel had a conflict of interest is insufficient to establish the existence of an actual conflict of interest, which generally requires a showing that counsel was actively representing the conflicting interests of third parties. Stover v. State , 2016 Ark. 167, 489 S.W.3d 674. Davis has failed to make such a demonstration.
Based on the transcript of the plea hearing, we hold that the circuit court did not clearly err in denying Davis's postconviction petition for relief. Davis stated that he was not forced or threatened to enter into the plea agreement; Davis expressed satisfaction with his private attorney's representation; and Davis agreed to the exact sentence that he received. Nothing in the transcript of the plea hearing demonstrates that Davis felt threatened or forced by his counsel, or any other party, to plead guilty. To the contrary, both the transcript of the plea hearing and Davis's acknowledged and signed plea statement confirm that he was not threatened or forced into pleading guilty. See Osburn v. State , 2018 Ark. App. 97, 538 S.W.3d 258. Davis failed to prove that he was deprived of a fair trial due to ineffective assistance of counsel in connection with his no contest plea. Moreover, Davis has not alleged or established that he would have insisted on going to trial but for his attorney's errors. Therefore, we hold that Davis has failed to meet the Strickland standard, and we affirm the circuit court on this point.
Davis's remaining arguments are that he was arrested without a valid warrant; that he was deprived of a preliminary or omnibus hearing; and that Clark County has a corrupt and crooked judicial system that framed him for these crimes. These claims hold no merit.
Claims of constitutional deprivation that occur prior to the entry of a guilty plea are not pertinent since the focus of inquiry in a collateral attack on a guilty plea is on the question of voluntariness of the plea as it relates to the advice rendered by counsel. Huff v. State , 289 Ark. 404, 711 S.W.2d 801 (1986). Any other defenses, except jurisdictional defects, are considered waived by the appellant. Id. Thus, additional arguments alleging prosecutorial or judicial misconduct and due-process violations are procedurally barred. See Pedraza v. State , 2016 Ark. 85, 485 S.W.3d 686 ; Jamett v. State , 2010 Ark. 28, 358 S.W.3d 874. Generally speaking, a challenge to the validity of an arrest warrant is not cognizable under Rule 37.1. Lewis v. State , 2013 Ark. 105, 2013 WL 865580. By pleading no contest to these offenses, appellant waived any claim that he was not guilty of the charges. Sherman v. State , 2014 Ark. 474, 448 S.W.3d 704.
In summary, we affirm the circuit court's order and hold that Davis is entitled to no postconviction relief.
Affirmed.
Whiteaker and Hixson, JJ., agree.
Appellant makes claims about a separate criminal case to which he pleaded no contest in the same plea hearing. That case, CR-17-46, concerned a commercial burglary and theft that occurred on a different date, April 9, 2017, at a Caddo Valley Shell Station in which $280 was stolen. Any claims and appended documents related to CR-17-46 are not properly before us in this postconviction appeal of CR-17-70. | [
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ROBIN F. WYNNE, Associate Justice
Appellants Arkansas Oil and Gas Commission (AOGC); Lawrence Bengal, in his official capacity as director of the AOGC; the AOGC commissioners in their official capacities (collectively, the AOGC); and separate appellant SWN Production (Arkansas), LLC (SWN), appeal from an order of the Pulaski County Circuit Court (1) dismissing with prejudice, based on sovereign immunity, this administrative appeal from final orders of the AOGC; (2) declaring the adjudicatory provisions of the Arkansas Administrative Procedure Act (APA) unconstitutional; (3) declaring the AOGC orders at issue void ab initio; and (4) dismissing the petition for review. The petitioners before the circuit court (appellees/cross-appellants, hereinafter referred to as appellees) cross-appealed. We reverse the circuit court's dismissal order in its entirety and remand for further proceedings pursuant to the APA.
I. Background
Appellees are the owners/lessors and lessees of mineral interests in Sections 25 and 36, Township 9 North, Range 11 West, Cleburne County, Arkansas. The mineral interests at issue, which lie in the Moorefield Shale Formation (below the Fayetteville Shale Formation), are integrated into SWN's drilling units by virtue of integration orders issued by the AOGC in March 2017. SWN subsequently filed supplemental applications with the AOGC seeking a determination of "the reasonable royalty rate consistent with royalty negotiated for depth-limited leases below the base of the Fayetteville Shale formation, made at arm's length in the [same] general area." In essence, SWN argued that the oil and gas leases between the mineral owners and Hurd Enterprises and Killam Oil were "self-dealing, non-arm's length" transactions and that the 25 percent royalty rate was "grossly excessive." Appellees objected to the supplemental application and contended, among other things, that the AOGC did not have the authority to disregard the royalty rate in an existing lease when the lessee elects to go non-consent. After a public hearing, the AOGC ordered that "[t]he leasehold royalty payable to the parties ... by the Consenting Parties during the recoupment period shall not exceed 1/7th." Thus, the AOGC reduced the royalty rate agreed to by Hurd Enterprises and Killam Oil and the mineral owners.
On July 28, 2017, appellees filed a petition for review in the Pulaski County Circuit Court pursuant to the APA, Arkansas Code Annotated section 25-15-212 (Repl. 2014), and the Arkansas Oil and Gas Conservation Act, Arkansas Code Annotated section 15-72-110 (Repl. 2009). They alleged that the AOGC lacks statutory authority to (1) disregard the royalty rate in an existing lease when a lessee is forcibly integrated into a drilling unit and then elects to go non-consent; (2) single out in its orders "leases negotiated at non-arms-length between affiliated parties"; or, (3) by virtue of the language of the supplemental orders, authorize SWN as the operator to make the practical determination of which leases in the unit were "negotiated at non-arms-length between affiliated parties." Among other claims, appellees alleged that the AOGC's actions were ultra vires. Pursuant to Arkansas Code Annotated section 25-15-212(g), appellees requested that the circuit court set a briefing schedule and hear oral argument; ultimately, appellees sought to have the supplemental orders regarding royalty rates vacated and reversed.
On January 18, 2018, this court issued a decision concerning the doctrine of sovereign immunity in Board of Trustees of the University of Arkansas v. Andrews , 2018 Ark. 12, 535 S.W.3d 616. On January 21, 2018, the AOGC filed a motion to dismiss the petition for review for lack of subject-matter jurisdiction. The AOGC argued that, under Andrews , it has sovereign immunity from suit in this matter and that the action should be dismissed. Appellees filed a response the following day, on which a hearing was scheduled, arguing that the complaint stated a valid claim for an ultra vires and illegal act that was not subject to the sovereign immunity doctrine. At the hearing, the circuit court considered the parties' arguments regarding sovereign immunity as set out in the motion to dismiss and response, allowed the parties to make any further arguments for the record, and announced its decision to grant the AOGC's motion to dismiss and declare the orders that were the subject of the petition for review void ab initio and of no force and effect. In its February 12, 2018 order, the circuit court wrote:
On January 22, 2018, came on for hearing the motion to dismiss of separate Respondents, the Arkansas Oil & Gas Commission, Lawrence Bengal, W. Frank Morledge, Mike Davis, Lee Dawkins, Jerry Langley, Jim Phillips, Chris Weiser, Timothy Smith, Charles Wohlford and Thomas McWilliams ("Agency Respondents") and the response of the petitioners, J.R. Hurd, Sara Smith Hurd, Patricia Hurd McGregor, Victoria Hurd Goebel, David W. Killam, Adrian Kathleen Killam, Tracy Leigh Killam-Dileo, Hurd Enterprises, Ltd., and Killam Oil Co., Ltd. ("Petitioners"), and from the pleadings and the arguments of the parties, the Court hereby finds and concludes as follows:
1. On January 22, 2018, the Agency Respondents filed a Motion to Dismiss based upon the recent decision of the Arkansas Supreme Court in the case of Board of Trustees of the University of Arkansas v. Andrews , Supreme Court Case Number CV-17-168 issued on January 18, 2018. Petitioners responded to the motion the same day.
2. The Andrews case did not specifically address the interaction of Article 2, Section 13 of the Arkansas Constitution about whether the State had waived sovereign immunity, or to what extent sovereign immunity and Article 2, Section 13 might work together.
3. In this administrative appeal the Court has seen nothing that the State has done that would constitute a fact-based waiver of sovereign immunity. As soon as reasonably possible after the Supreme Court announced a sea change in the parameters of sovereign immunity, the Agency Respondents brought the issue of sovereign immunity to the Court's attention and addressed it in a motion to dismiss. In the event that was something left open in the Andrews case, it is not open in this case.
4. Both Article 2, Section 13 of the Arkansas Constitution and the due process clause of the United States Constitution require both a procedural and a substantive remedy for every alleged injury, wrong, or taking.
5. This matter is not an original action. It is an administrative appeal under the adjudicatory provisions of the Arkansas Administrative Procedures Act. The adjudicatory provisions are not the entire act. The specific statutes are Ark. Code Ann. §§ 25-15-206, 207, 208, 209, 210, 212, 213, and 214. Those statutes together create a specific, seamless adjudicatory framework that has always satisfied the procedural and substantive requirements of due process because there was an administrative provision, and then there was an opportunity to appeal. By statute, the appeal of an agency decision was to circuit court for any party who felt aggrieved by an agency's administrative action. The General Assembly, in the Administrative Procedures Act, specifically legislated in A.C.A. § 25-15-2 14 that any appeal of an agency decision must go to circuit court.
6. The Court is not aware of any statutory authority allowing any administrative appeals to be heard by the Arkansas State Claims Commission. Ark. Code Ann. § 19-10-204(b)(2)(A) does give the Claims Commission jurisdiction over claims which are barred by the doctrine of sovereign immunity from being litigated in a court of general jurisdiction. But as previously noted, the present matter is not an original claim; it is an administrative appeal that is part of a seamless process set up by the General Assembly.
7. To the extent that the Arkansas Supreme Court's decision in Andrews is applicable to administrative appeals under the Arkansas Administrative Procedures Act, the adjudicatory provisions of the Arkansas Administrative Procedures Act are now violative of Article 2, Section 13 of the Arkansas Constitution and violative of the due process clause of the United States Constitution until such time as the General Assembly can meet and amend the APA to be in conformity with both the Andrews case, Article 2, Section 13, and the due process clause.
8. The Defendants' Motion to Dismiss is granted with prejudice, and this case is dismissed. Ark. Code Ann. §§ 25-15-206, 207, 208, 209, 210, 212, 213, and 214 that are the adjudicatory provisions of the Arkansas Administrative Procedures Act are declared to be unconstitutional as written under the Andrews case because of the Arkansas Supreme Court's decision in Andrews. This means that the orders that are the subject of the petition for review are void ab initio. They are null and void as if they had never been entered.
9. Petitioners' petition for review also alleged jurisdiction under Ark. Code Ann. § 15-72-110. Petitioners have also argued that the Andrews case noted that "acting illegally" is an exception to sovereign immunity and that the whole issue on appeal is that the Agency Respondents were without statutory authority to rule as they did, making the orders appealed from ultra vires. They further argue that the Arkansas Supreme Court in Andrews did not overrule that exception. To that extent, the Court grants the Agency Respondents' Motion to Dismiss that they were not acting illegally, that they were not acting ultra vires , based upon the pleadings that the Court read. The Court makes a fact-based determination that there is no indication in the appeal record that the Agency Respondents were acting ultra vires , illegally, or without authority of law. The Court declines each of the Petitioners' individual arguments to the extent that the Court hasn't granted any of them. Dobson v. Oil and Gas Commission case, 218 Ark. 160, 235 S.W.2d 33 (1950), cited by the Petitioners, has been overruled by implication with the Andrews case.
10. Petitioners also argued in their petition for review and in their response to Respondents' motion to dismiss that their property rights are affected by the orders that are the subject of the petition for review. Petitioners cite Article 2, Section 13, as a further ground for their petition for review and as an exception to the Court's reading of the holding in Andrews. The Court agrees that property rights are involved. However, without the Supreme Court specifically addressing the interplay of sovereign immunity and Article 2, Section 13, as a trial judge, the Court concludes based on its reading of Andrews that if the sovereign immunity clause of the constitution and Article 2, Section 13 are read together, the Article 2, Section 13 applies to everything and everybody unless the matter is a party against the State of Arkansas and then the sovereign immunity clause means the State of Arkansas cannot be brought into court.
11. Based on Andrews and the lack of a right of review of Respondents' orders, the Court concludes that there is a clear violation of both procedural and substantive due process.
12. The Court is not making a decision about the factual elements of the parties' arguments, other than the Agency Respondents' actions were not ultra vires. If the case is remanded and the Court has jurisdiction, the Court will allow the parties to make further arguments on other issues raised.
13. This leaves the parties to those contracts at issue in the order back talking to each other and puts the Arkansas Oil and Gas Commission out of adjudicatory business until something is resolved by the Arkansas Supreme Court, or the General Assembly addresses the issue.
14. The Court's oral ruling and the bases therefor are incorporated herein.
15. SWN Production (Arkansas), LLC is made a party respondent herein.
IT IS THEREFORE ORDERED that the Agency Respondents' motion to dismiss is granted with prejudice, that the orders that are the subject of the petition for review of J.R. Hurd, Sara Smith Hurd, Patricia Hurd McGregor, Victoria Hurd Goebel, David W. Killam, Adrian Kathleen Killam, Tracy Leigh Killam-Dileo, Hurd Enterprises, Ltd., and Killam Oil Co., Ltd., are void ab initio and of no force and effect, and that Petitioners' petition for review is dismissed.
From this order, the AOGC and SWN filed notices of appeal, and appellees filed a notice of cross-appeal.
II. Direct Appeal
On appeal, the AOGC argues that the circuit court correctly held that the petition for review was barred by sovereign immunity but erred by invalidating the APA's adjudicatory provisions and AOGC's orders. The AOGC contends that after holding that the petition was barred by sovereign immunity, the circuit court lacked jurisdiction to do anything but dismiss the petition. Further, the AOGC argues that even if the circuit court's sovereign-immunity analysis was incorrect, the court's award of substantive relief must still be reversed because the circuit court's basis for declaring provisions of the APA unconstitutional and voiding AOGC's administrative orders would no longer exist. In its brief, separate appellant SWN argues that judicial review of state administrative actions is not barred by the Andrews decision for several reasons, and that even if the circuit court's sovereign-immunity ruling is affirmed, the substantive rulings of the circuit court must be reversed. Appellees respond by arguing that judicial review of an agency action under the APA is not unconstitutional; judicial review of an agency action alleged to be ultra vires is not unconstitutional; and the AOGC exceeded its authority, i.e., acted in an ultra vires manner. Accordingly, all parties agree that the circuit court's order should be reversed insofar as it declared the adjudicatory portions of the APA unconstitutional.
We begin our analysis with article 5, section 20 of the Arkansas Constitution, which provides: "The State of Arkansas shall never be made defendant in any of her courts." Sovereign immunity is jurisdictional immunity from suit, and jurisdiction must be determined entirely from the pleadings. Bd. of Trustees of Univ. of Ark. v. Andrews , 2018 Ark. 12, at 5, 535 S.W.3d 616, 619. A suit against the State is barred by the sovereign-immunity doctrine if a judgment for the plaintiff will operate to control the action of the State or subject it to liability. Id.
In Andrews , this court held that that the General Assembly cannot waive the State's immunity pursuant to article 5, section 20. The plaintiff had filed a claim against the college for failing to compensate him for overtime in violation of the Arkansas Minimum Wage Act. This court examined the history of sovereign immunity in the Arkansas Constitution and our precedent, and we concluded that the General Assembly cannot waive the State's immunity pursuant to article 5, section 20. Id. at 11-12, 535 S.W.3d at 623. This court recognized that some cases had previously stated that a claim of sovereign immunity may be surmounted "when an act of the legislature has created a specific waiver of sovereign immunity," and overruled any cases conflicting with the holding in Andrews . Id. Since Andrews , this court has cautioned that the opinion should not be read too broadly. Ark. Cmty. Corr. v. Barnes , 2018 Ark. 122, at 3, 542 S.W.3d 841, 843 ("We emphasize here, as in Andrews , that the only issue before this court is whether the General Assembly's choice to abrogate sovereign immunity in the AWBA is prohibited by the constitution."); Ark. Dep't of Veterans Affairs v. Mallett , 2018 Ark. 217, at 2 n.2, 549 S.W.3d 351, 352 n.2 ("We caution that Andrews should not be interpreted too broadly.").
Now, the question before this court is whether article 5, section 20 of the Arkansas Constitution prohibits suit against the AOGC in the context of an appeal to circuit court under the APA, i.e., whether sovereign immunity prohibits suits seeking judicial review of agency adjudications. Relying on Andrews , the circuit court concluded that it does. We generally review a circuit court's decision on a motion to dismiss by treating the facts alleged in the complaint as true and by viewing them in the light most favorable to the plaintiff. Andrews , 2018 Ark. 12, at 4, 535 S.W.3d at 619. When the circuit court is presented with documents outside the pleadings, we treat the case as an appeal from a summary judgment and view the evidence in the light most favorable to the party opposing the motion. Id. However, when the issues on appeal do not involve factual questions but rather the application of a legal doctrine, we simply determine whether the moving party is entitled to judgment as a matter of law. Id.
Pursuant to the APA, "[i]n cases of adjudication, any person ... who considers himself or herself injured in his or her person, business, or property by final agency action shall be entitled to judicial review of the action under this subchapter." Ark. Code Ann. § 25-15-212(a). " 'Adjudication' means an agency process for the formulation of an order." Ark. Code Ann. § 25-15-202(1)(A). Section 25-15-212 further provides in pertinent part as follows:
(g) The review shall be conducted by the court without a jury and shall be confined to the record, except that in cases of alleged irregularities in procedure before the agency not shown in the record, testimony may be taken before the court. The court shall, upon request, hear oral argument and receive written briefs.
(h) The court may affirm the decision of the agency or remand the case for further proceedings. It may reverse or modify the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency's statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
Ark. Code Ann. § 25-15-212(g), (h). Appellees also cited in their petition for review Arkansas Code Annotated section 15-72-110 regarding appellate procedures for proceedings brought under the Arkansas Oil and Gas Conservation Act. Section 15-72-110, titled "Appellate procedures," provides in pertinent part:
In all proceedings brought under authority of this act, of any oil or gas conservation statute of this state, or of any rule, regulation, or order issued thereunder and in all proceedings instituted for the purpose of contesting the validity of any provision of the act, of any oil or gas conservation statute, or of any rule, regulation, or order issued thereunder, appeals may be taken in accordance with the general laws of the State of Arkansas relating to appeals.
The present case is distinguishable from Andrews and other recent cases concerning sovereign immunity because it concerns an appeal of an agency adjudication. The AOGC is a named defendant, but its role in the proceeding is that of a tribunal or a quasi-judicial decision-maker rather than a real party in interest. It is akin to a trial court in an appellate proceeding; it has no vested interest in the outcome of the appeal other than whether its decision is upheld. The subject of the adjudication-the amount of royalty to be paid by SWN to the appellees-does not affect the State's coffers or control its actions. See Duit Constr. Co., Inc. v. Ark. State Claims Comm'n , 2015 Ark. 462, at 5, 476 S.W.3d 791, 795 ("In determining whether the doctrine of sovereign immunity applies, the court must decide if a judgment for the plaintiff will operate to control the action of the State or subject it to liability."). Appellees sought judicial review of the AOGC's final agency action; they alleged no additional claims against the AOGC or any other state actor. Under these circumstances, sovereign immunity is not implicated because the AOGC is not "made a defendant" as contemplated by article 5, section 20, of the Arkansas Constitution. There is no need to address "exceptions" to sovereign immunity because the doctrine simply does not apply in this case. We acknowledge the AOGC's argument that the circuit court reviewed the administrative record and made a "fact-based determination" that the AOGC was not acting ultra vires, illegally, or without authority of law. However, we find the circuit court's order to be ambiguous such that remand is necessary to ensure that appellees' arguments-which are based in statutory interpretation-are considered.
Because the circuit court erred in concluding that the doctrine of sovereign immunity barred its consideration of the petition for review of the AOGC orders, it follows that the rulings declaring the adjudicatory provision of the APA unconstitutional and the AOGC's orders void ab initio must also be reversed. Accordingly, we reverse the circuit court's order in its entirety and remand for further proceedings pursuant to the APA.
III. Cross-Appeal
On cross-appeal, appellees/cross-appellants argue that the AOGC exceeded its authority. Essentially, their argument is that none of the statutes cited by the AOGC actually provide a sufficient basis for the AOGC's asserted jurisdiction over the royalty SWN must pay the royalty owners. Alternatively, they argue that this court should remand for full consideration of whether the AOGC exceeded its authority. We agree with the alternative argument, and for the reasons outlined above, remand to the circuit court for consideration of the petition for review in accordance with the APA.
IV. Conclusion
Reversed and remanded on direct appeal and on cross-appeal.
Hart, J., concurs.
Wood and Womack, JJ., concur in part and dissent in part.
Baker, J., dissents.
Josephine Linker Hart, Justice, concurring.
I concur. I agree with the majority's conclusion that the role of the Arkansas Oil and Gas Commission in this case was that of a quasi-judicial forum; the commission was not "made defendant" within the meaning of art. 5, § 20 of the Arkansas Constitution. I write separately because Justice Baker's dissent raises issues that demand action from this court. The untenability of our current sovereign immunity jurisprudence, demonstrated by cases like the one currently before us, is lost neither on the parties to this case nor on the rest of the Arkansas legal community. The fallout from Board of Trustees of the University of Arkansas v. Andrews , 2018 Ark. 12, 535 S.W.3d 616 has manifested in all forms of state court litigation related to government affairs, with litigants from both the public and private spheres clamoring to either weaponize or escape from Andrews and its undefined limitations, and our law is suffering because of it. This court must "wipe the slate" on sovereign immunity, in lieu of continuing this tired and awkward endeavor to develop our jurisprudence within Andrews and its progeny. See, e.g. , Walther v. FLIS Enters., Inc. , 2018 Ark. 64, 540 S.W.3d 264 (sovereign immunity is an affirmative defense that must be raised in a responsive pleading) and Arkansas Dep't of Veterans Affairs v. Mallett , 2018 Ark. 217, 549 S.W.3d 351 (without overruling FLIS , failure to raise sovereign immunity as affirmative defense in responsive pleading simply does not matter).
We cannot keep doing this. The Andrews decision was improvident for its profound lack of any actual constitutional analysis. See Arkansas Community Correction v. Barnes , 2018 Ark. 122, 542 S.W.3d 841 (Hart, J., dissenting). The notion that the drafters of our constitution intended to allow our state government to assert sovereign immunity against the citizens of Arkansas in cases like Andrews and Barnes , where the government is accused of acting illegally and unconstitutionally, is simply wrong. Furthermore, the failure by the majority in Andrews to define the majority opinion's limitations, especially when the dissent so desperately endeavored to point out the majority opinion's dangerous implications, has made this situation far worse. It is time for this court to simply acknowledge as much, so we can move forward.
Rhonda K. Wood, Justice, concurring and dissenting.
I concur with the result on direct appeal. Sovereign immunity is not applicable in a petition for review from an agency decision. For the following reasons, however, I must respectfully dissent from the majority's decision to remand the cross-appeal.
The cross-appeal concerns an issue of statutory interpretation that was fully briefed to the circuit court and on appeal. The circuit court ruled on the issue, albeit without explanation. And on appeal, the parties unanimously entreat this court to rule on the merits without remanding. Procedurally, remanding the cross-appeal here accomplishes no more than eliciting a more detailed legal interpretation that we will ultimately afford no deference. E.g. , Dep't of Ark. State Police v. Keech Law Firm, P.A. , 2017 Ark. 143, at 2, 516 S.W.3d 265, 267 ; State v. Thomas , 2014 Ark. 362, at 4, 439 S.W.3d 690, 692 (explaining that we give no deference to the circuit court's statutory interpretation). In practicality, however, the majority's decision unnecessarily delays resolution, which undoubtedly induces continued financial strain on every party involved. Because we are more than capable of interpreting the law at this stage in the case, I respectfully dissent from the majority's decision not to do so.
The majority opinion implies that the circuit court only made a factual determination, not a legal one. But the opposite is true. Although the circuit court factually reviewed the administrative record, as the majority cites, it did not decide any facts. The order expressly stated that it "is not making a decision about the factual elements of the parties' arguments, other than the Agency Respondents' actions were not ultra vires." But the ultra-vires issue is purely a matter of statutory interpretation. There are simply no factual issues at play.
The circuit court plainly and repeatedly stated it was denying the appellees' legal argument in their petition for review. The court concluded, both on the record and in its order, that the AOGC did not act "ultra vires, illegally, or without authority of law." The parties agree that there are no material facts in dispute. They also agree that the appellees' petition for review sought only a legal determination regarding the scope of the AOGC's statutory authority. After appellees specifically requested that the circuit court rule on the ultra-vires issue, the court stated in its written order,
Petitioners have also argued that the Andrews case noted that "acting illegally" is an exception to sovereign immunity and that the whole issue on appeal is that the Agency Respondents were without statutory authority to rule as they did, making the orders appealed from ultra vires .... To that extent, the Court grants the Agency Respondents' Motion to Dismiss that they were not acting illegally, that they were not acting ultra vires , based upon the pleadings that the court read.
(Emphasis added.) Finally, the circuit court's order "declines each of the Petitioners' individual arguments to the extent the Court hasn't granted any of them." This resulted in a final order. By granting the State's motion to dismiss as to the merits of the petitioners' underlying claim, the circuit court issued a final ruling on the matter of law that was the only issue in the matter.
Despite all of this, the majority finds "the circuit court's order to be ambiguous such that a remand is necessary to ensure that appellees' arguments-which are based on statutory interpretation-are considered." Yet, it is unclear what will be accomplished on remand. The issue was briefed below, the circuit court is not required to hold a hearing, and the court is not required to make specific findings on a matter of statutory interpretation. In fact, the circuit court could conceivably enter a one-sentence order on remand, simply stating again that the AOGC did not act "ultra vires, illegally, or without authority of law."
The issue on cross-appeal is purely a matter of statutory interpretation, which is ultimately for this court to decide. See Brock v. Townsell , 2009 Ark. 224, at 9, 309 S.W.3d 179, 185. While remand may afford the circuit court an opportunity to clarify any ambiguities in its order and consider its interpretation further, such clarification and interpretation becomes immediately inconsequential in the subsequent appeal. Id. (explaining that we review issues of statutory construction de novo and are not bound by the circuit court's legal interpretation).
For the sake of judicial economy, I dissent.
Womack, J., joins in this opinion.
The AOGC Commissioners are W. Frank Morledge, Mike Davis, Lee Dawkins, Jerry Langley, Jim Phillips, Chris Weiser, Timothy Smith, Charles Wohlford, and Thomas McWilliams.
The petitioners are J.R. Hurd, Sara Smith Hurd, Patricia Hurd McGregor, Victoria Hurd Goebel, David W. Killam, Adrian Kathleen Killam, Tracy Leigh Killam-Dileo, Hurd Enterprises, Ltd., and Killam Oil Co., Ltd.
Because this appeal comes to us on the grant of a motion to dismiss based on the doctrine of sovereign immunity and the circuit court has not considered the petition for review on its merits, we believe it prudent to remand for consideration by the circuit court in the first instance as contemplated by the APA.
As noted by the majority, appellees alternatively argue that should the court fail to address the merits, they would prefer remand over an outright ruling against them. | [
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RITA W. GRUBER, Chief Judge
Justin Chatley appeals from the Benton County Circuit Court's order denying his request to set aside an adoption. The court denied Justin's petition based on its determination that he had failed to provide adequate information to establish that he had standing. On appeal, he contends that there was insufficient evidence to support the denial of his petition and that the adoption violates his right to due process. We hold the circuit court did not err in concluding that Justin lacked standing to challenge the adoption, and we affirm its order denying his petition.
The child adopted in this case, ZK, was born on July 6, 2015, to Dawn and Allen Williams. The Williamses were married when ZK was conceived. On June 26, 2016, almost a year after ZK's birth, Dawn and Allen each signed a relinquishment, termination, and consent to adoption. In Allen's relinquishment, he specifically stated that he and Dawn were married "prior to and during the time of conception" of ZK and that he was ZK's biological father. On June 29, 2016, Brandy and Nathan Key filed a petition to adopt ZK. On August 9, 2016, after a favorable home study had been conducted on the Keys' home, the circuit court entered an order granting the adoption.
Nine months later, on April 3, 2017, Justin filed a petition to vacate the final decree of adoption and a supporting brief claiming that he was ZK's biological father and had maintained a significant custodial, personal, and financial relationship with the child when Dawn and ZK lived with Justin from August 2015 through mid-May 2016. The circuit court did not rule on the petition for four months, allowing Justin a reasonable time to establish standing to proceed in the matter.
On July 24, 2017, Justin filed an additional brief in support of his petition and attached the following documents. He filed an affidavit stating that he and Dawn had an on-and-off relationship from 2014 through sometime in 2016; Dawn told him in December 2014 that she was pregnant with his child; they "broke up" in February 2015; in August 2015, several weeks after ZK's birth, Dawn moved in with Justin and he provided financial support; Justin performed a "home paternity test" on ZK in March 2016; at some point thereafter, he claims that he unsuccessfully attempted to register with the Arkansas Putative Father Registry; and in June 2016, Justin hired an Oklahoma lawyer for "visitation and custody." He attached the results from the home paternity test purporting to indicate that he was the father of ZK. He attached a "Petition for Judicial Order Determining Paternity, Custody and Visitation" that had been filed in Oklahoma on September 20, 2016. He also attached an affidavit from his Oklahoma attorney, stating that Justin had diligently attempted to provide service information for Dawn but was unable to discover Dawn's whereabouts in Texas until August 2016, at which point Dawn was served with Justin's Oklahoma petition for paternity. The attorney also stated that Justin did not discover that ZK had been adopted until Dawn filed an answer in the paternity lawsuit so stating. Finally, Justin filed the affidavit of his parents, confirming that Justin and Dawn had a relationship and that Dawn and ZK had lived with Justin for a period of nine months. Justin did not produce any evidence that he had registered with the Arkansas Putative Father Registry or any other putative-father registry, filed a petition for paternity in any Arkansas court, or obtained an order from any court establishing his rights as the father of ZK.
On July 31, 2017, the circuit court denied Justin's petition to vacate, finding that he had failed to establish standing to proceed, providing specifically:
1. The Final Decree of Adoption was filed in this matter on August [9], 2016.
2. The Court allowed a period of time for the Petitioner to provide the Court with adequate proof of his good faith efforts to register as a putative father and to provide adequate information to establish standing to proceed.
3. The Court has reviewed all information provided by the Petitioner and has determined that it is not adequate to establish standing nor is it adequate for the Court to find a reasonable basis to allow Petitioner to proceed.
We are reviewing the circuit court's finding that Justin did not have standing to pursue his petition. Only a person who has a personal stake in the outcome of a controversy has standing. Pulaski Cty. v. Ark. Democrat-Gazette, Inc. , 371 Ark. 217, 220, 264 S.W.3d 465, 467 (2007). The question of standing is a matter of law for this court to decide, and the appellate courts review questions of law de novo. Hinton v. Bethany Christian Servs. , 2015 Ark. App. 301, at 3, 462 S.W.3d 361, 362. In making a determination regarding standing, we must interpret several statutes. We review issues of statutory construction de novo, as it is for this court to decide what a statute means. DaimlerChrysler Corp. v. Smelser , 375 Ark. 216, 289 S.W.3d 466 (2008). In this regard, we are not bound by the circuit court's decision; however, in the absence of a showing that the circuit court erred, its interpretation will be accepted as correct on appeal. Id. With these standards in mind, we turn to the arguments presented on appeal.
I. Statutory Law
We find it helpful to first set forth the relevant Arkansas statutes. Arkansas Code Annotated section 9-9-206 provides in pertinent part as follows:
(a) Unless consent is not required under § 9-9-207, a petition to adopt a minor may be granted only if written consent to a particular adoption has been executed by:
(1) The mother of the minor;
(2) The father of the minor if:
(A) The father was married to the mother at the time the minor was conceived or at any time thereafter;
(B) The minor is his child by adoption;
(C) He has physical custody of the minor at the time the petition is filed;
(D) He has a written order granting him legal custody of the minor at the time the petition for adoption is filed;
(E) A court has adjudicated him to be the legal father prior to the time the petition for adoption is filed;
(F) He proves a significant custodial, personal, or financial relationship existed with the minor before the petition for adoption is filed ; or
(G) He has acknowledged paternity under § 9-10-120(a);
Ark. Code Ann. § 9-9-206(a)(1), (2) (Repl. 2015) (emphasis added).
Arkansas Code Annotated section 9-9-207 provides:
(a) Consent to adoption is not required of:
(1) a parent who has deserted a child without affording means of identification or who has abandoned a child;
(2) a parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree;
(3) the father of a minor if the father's consent is not required by § 9-9-206(a)(2) ;
(4) a parent who has relinquished his or her right to consent under § 9-9-220;
(5) a parent whose parental rights have been terminated by order of court under § 9-9-220 or § 9-27-341;
(6) a parent judicially declared incompetent or mentally defective if the court dispenses with the parent's consent;
(7) any parent of the individual to be adopted, if the individual is an adult;
(8) any legal guardian or lawful custodian of the individual to be adopted, other than a parent, who has failed to respond in writing to a request for consent for a period of sixty (60) days or who, after examination of his or her written reasons for withholding consent, is found by the court to be withholding his or her consent unreasonably;
(9) the spouse of the individual to be adopted, if the failure of the spouse to consent to the adoption is excused by the court by reason of prolonged unexplained absence, unavailability, incapacity, or circumstances constituting an unreasonable withholding of consent;
(10) a putative father of a minor who signed an acknowledgement of paternity but who failed to establish a significant custodial, personal, or financial relationship with the juvenile prior to the time the petition for adoption is filed; or
(11) a putative father of a minor who is listed on the Putative Father Registry but who failed to establish a significant custodial, personal, or financial relationship with the juvenile prior to the time the petition for adoption is filed.
(b) Except as provided in §§ 9-9-212 and 9-9-224, notice of a hearing on a petition for adoption need not be given to a person whose consent is not required or to a person whose consent or relinquishment has been filed with the petition.
Ark. Code Ann. § 9-9-207.
II. Standing
The issue before us is whether Justin has standing to pursue his petition to vacate the adoption. In other words, was he a person entitled to notice or whose consent was required before the circuit court could enter an adoption decree regarding ZK? He did not register with the Arkansas Putative Father Registry or sign an acknowledgement of paternity, both of which would have triggered the notice provisions of Ark. Code Ann. § 9-9-212(a)(4)(C). He argues, however, that his consent was required, and thus that he was entitled to notice pursuant to Ark. Code Ann. § 9-9-206(a)(2)(F) as a "father" who had proven "a significant custodial, personal, or financial relationship existed" with ZK before the adoption petition was filed. We express no opinion regarding the significance of the relationship between Justin and ZK and assume for purposes of this appeal that he has established, or could establish, that a significant relationship existed. We hold, however, that Justin has not demonstrated that he is a "father" within the purview of subsection 206(a)(2).
Turning to the relevant consent statutes, we note that in Ark. Code Ann. § 9-9-207(a), providing from whom consent is not required for adoption, our legislature used the terms "parent," "father," "legal guardian or lawful custodian," "spouse," and "putative father" in each of the eleven separately enumerated subsections, suggesting that it perceived a difference between the terms putative father and father for purposes of the adoption code. In Ark. Code Ann. § 9-9-206(a)(2), which Justin claims to fall within, the statute uses the term "father." Thus, we must determine what is meant by the term "father" and whether Justin presented evidence to satisfy the statute and thereby demonstrate standing to proceed with his petition.
A "putative father" is defined throughout the Arkansas Code as any man not legally presumed or adjudicated to be the biological father of a child but who claims or is alleged to be the biological father of the child. See, e.g. , Ark. Code Ann. § 9-9-501(11) (Repl. 2015); Ark. Code Ann. § 16-43-901(h) (Repl. 1999). Justin claims to be the biological father of ZK, but he is not legally presumed, nor has he been adjudicated, to be ZK's biological father. Thus, by statutory definition, Justin is a putative father. Further, and of particular importance in this case, ZK was born with a presumed father, Allen. The fact that ZK was adopted a year after his birth, and that Allen consented to that adoption, does not change that fact. At the time ZK was conceived and born, Dawn and Allen Williams were married. It is a general principle of Arkansas law that a child is presumed legitimate if the parents were married at the time of the child's conception or birth. R.N. v. J.M. , 347 Ark. 203, 211, 61 S.W.3d 149, 153 (2001).
A putative father has a right to file a petition for paternity even when the child was conceived during marriage, and the presumption that the father of the child is the man married to the mother may be rebutted. See R.N., supra . We do not decide today whether or to what extent that right exists after the child has been adopted because the presumption has never been rebutted in this case. Here, the child was born to a married couple, and there has been no paternity action to rebut the presumption that Allen was the father before ZK was adopted. A child may have only one legal father. Howerton v. Ark. Dep't of Human Servs. , 2016 Ark. App. 560, at 10-11, 506 S.W.3d 872, 878-79. That was Allen, and he consented to the adoption.
In an attempt to demonstrate that he had standing, Justin produced three affidavits-his, his parents', and his lawyer's-alleging that he was ZK's father and had developed a relationship with ZK. He also provided a report from a "home paternity test" that he claimed resulted from samples taken from him and ZK, but the report Justin provided did not name the individuals tested and specifically made the following disclaimer:
Since the samples were not collected under a strict chain of custody by a third neutral party, and the Laboratory cannot verify the origin of the samples, this test result may not be defensible in a court of law for the establishment of paternity and other legally related issues. The tested parties expressly understand that the result from this test is only for personal knowledge and curiosity.
Justin cites In re Adoption of Baby Boy B , 2012 Ark. 92, 394 S.W.3d 837, as authority for his argument that a father who establishes a significant relationship with the child is "protected" and fits within the consent requirements of section 9-9-206(a)(2)(F) even if he has not registered with the putative-father registry. First, we do not read the court's opinion for that proposition. Moreover, the facts in that case are distinguishable from those here. The mother in Baby Boy B was not married when the child was conceived or born. Therefore, the child was not born legitimate in that case, unlike ZK. Further, the only father in Baby Boy B was JEM, the appellant in that case, and his biological connection to the child was not disputed. Finally, unlike Justin, who failed to register with any putative-father registry either before or after ZK's birth, JEM filed with the putative-father registries in Missouri, Texas, Arkansas, and Illinois before the child was ever born, and he filed two separate paternity and custody actions before the adoption petition was filed. Baby Boy B does not hold that a putative father may establish parental rights to a child and be entitled to challenge an adoption without first demonstrating that he is, in fact, the child's "father" for purposes of Ark. Code Ann. § 9-9-206(a)(2), and Justin has cited no other case so holding. Indeed, our research of recent adoption cases regarding the rights of putative fathers all involved unmarried mothers. Under a plain reading of Arkansas Code Annotated section 9-9-206(a)(2)(F), not just "anyone" who proves the existence of a significant relationship with the child is required to consent; rather, the statute requires only a "father" who proves the existence of such a relationship to consent. When the child already has a presumed legal father because his mother is married, another man who had a sexual relationship with the mother during the time of conception and a relationship with the child after birth is not, without more, entitled to notice of an adoption. He must fall within the statute's purview.
Although he knew Dawn was pregnant with his child, knew Dawn was married before the child's birth, and claims to have established a relationship with ZK after his birth, Justin failed to file with the putative-father registry of Arkansas (or any state) and failed to file a paternity petition in Arkansas to establish his interest in ZK either before or after the adoption. This is in spite of the circuit court's request that he provide proof that he had made a good-faith effort to register and that he had standing to contest the adoption. There are specific legal avenues to establish paternity, and there are specific statutes governing notice and consent in an adoption. These statutes are designed to protect the State's interest in ensuring the child's need for permanence and stability. A putative father's interest must be balanced against this important goal. Recognizing these competing interests, Justice Brown quoted the following passage from the Vermont Supreme Court:
To conclude that petitioner acted promptly once he became aware of the child is to fundamentally misconstrue whose timetable is relevant. Promptness is measured in terms of the baby's life not by the onset of the father's awareness. The demand for prompt action by the father at the child's birth is neither arbitrary nor punitive, but instead a logical and necessary outgrowth of the State's legitimate interest in the child's need for early permanence and stability.
Escobedo v. Nickita , 365 Ark. 548, 559, 231 S.W.3d 601, 609 (2006) (Brown, J., concurring) (quoting In Re C.L., Juvenile , 178 Vt. 558, 878 A.2d 207, 211 (2005) (quoting Robert O. v. Russell K. , 80 N.Y.2d 254, 590 N.Y.S.2d 37, 604 N.E.2d 99 (1992) ) ).
ZK has now been with his adoptive parents, the Keys, for over two years. We hold that Justin failed to establish that he was ZK's "father" within the meaning of Ark. Code Ann. § 9-9-206(a) ; thus, he was not required to consent to ZK's adoption.
We do not address Justin's argument that the adoption violated his right to due process because he neither argued this to the circuit court nor obtained a ruling on the issue. Brookewood, Ltd. P'ship v. DeQueen Physical Therapy & Occupational Therapy, Inc. , 2018 Ark. App. 204, at 13, 547 S.W.3d 461, 469 (holding that we will not review arguments not raised below or on which the circuit court has not ruled).
Affirmed.
Glover and Murphy, JJ., agree.
We recognize that any putative father who has registered with the Putative Father Registry is entitled to notice of an adoption petition and hearing pursuant to Ark. Code Ann. § 9-9-212(a)(4)(C). We note, however, that only in adoptions involving a child "born to a mother unmarried at the time of the child's birth" is there a requirement that a certified statement regarding information about the child contained in the Putative Father Registry, or the absence of any such information, be obtained before entry of an adoption decree. Ark. Code Ann. § 9-9-224 (Repl. 2015). | [
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PHILLIP T. WHITEAKER, Judge
A Garland County Circuit Court jury found Kenny Lemont Danner guilty of first-degree murder in the death of Mark Turner. Danner appeals his conviction and argues that the evidence was circumstantial and was therefore not sufficient for a finding of guilt beyond a reasonable doubt. Because substantial evidence supports a conviction, we affirm.
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. Cluck v. State , 365 Ark. 166, 226 S.W.3d 780 (2006). We will affirm a conviction if substantial evidence exists to support it. Id. 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. When a theory of accomplice liability is implicated, we affirm a sufficiency-of-the-evidence challenge if substantial evidence exists that the defendant acted as an accomplice in the commission of the alleged offense. Cook v. State , 350 Ark. 398, 86 S.W.3d 916 (2002).
Taking the evidence in the light most favorable to the State, as we must do, the following evidence substantially supports Danner's conviction. On May 29, 2016, Mark Turner failed to show up for work. He was later found dead in his apartment. Law enforcement was notified.
Law enforcement responded to Turner's apartment to investigate his death. Turner's fatal injuries appeared to have been inflicted by the use of three different weapons: possibly a hammer, a knife, and a phillips-head screwdriver. He had suffered multiple blunt-force and sharp-force injuries. The apartment was processed for evidence, and certain items were collected, including blood samples and a piece of carpet containing a bloody shoe print.
The police eventually focused on Danner as a suspect in Turner's murder. The investigation into Turner's death revealed that Danner, his brother Korean, James Marshall, and Alvin Smith had gathered at Turner's apartment in the early morning hours of May 28, 2016. Turner, Danner, Korean, and Smith began drinking, smoking marijuana, and shooting dice, while Marshall sat on the couch watching videos and texting on his phone. Turner had a backpack with an extra set of clothes, some marijuana, and a gun. He also had a large amount of money from an insurance settlement. He was betting on the dice game with some of the money but did not have it all out. Turner generally carried the money in his wallet or in the backpack.
Smith left the apartment at approximately 3:45 a.m. Marshall left five or ten minutes later, leaving Danner and Korean with Turner. At approximately 5:00 a.m., Melissa Clenney, Turner's downstairs neighbor, was awakened by the sound of "thumps and bumps" coming from Turner's apartment. Danner and Korean were the last-known persons to have seen Turner alive.
After leaving Turner's apartment, Danner and Korean walked to the apartment of their sister. Danner and Korean's route to the apartment was captured on surveillance video between 5:45 and 6:00 a.m. Both Danner and Korean were carrying backpacks. Surveillance video from his sister's apartment complex later that morning captured Danner placing a large black trash bag in the apartment complex trash bins. In that video, Danner is seen wearing blue argyle socks and Converse tennis shoes.
The police searched the apartment where Danner had been staying with his sister. Of note, the police collected a pair of size 9 Converse tennis shoes, a pair of gray Hanes underwear, and a pair of blue argyle socks. The shoes collected matched two bloody footprints located in Turner's apartment in terms of both pattern and size and matched a third in pattern only. An examination of the shoes showed discoloration and some reaction to testing, but it could not be definitively confirmed as blood. However, Turner's blood was found on the socks and the underwear seized by the police. The underwear also contained Danner's DNA, thereby linking him to that article of clothing. Additionally, Danner was interviewed by the police. During the interview, he had a black eye, indicative of his involvement in some altercation. Danner advised that he had received the injury from his nephew's hitting him with a broom on May 27, but Marshall and Smith both testified that Danner did not have a black eye when they saw him at the apartment in the early morning hours of May 28 prior to Turner's death.
On appeal, Danner asserts that the above-recited evidence was insufficient to support his conviction because the evidence presented was circumstantial. He specifically claims that there were no identifiable eyewitnesses to the murder, and the State was unable to produce or identify the murder weapons. With regard to the time frame and nature of the attack on Turner, Danner contends that the only evidence the State offered came from Ms. Clenney, the downstairs neighbor, claiming she heard "thumps and bumps" coming from Turner's apartment. He argues that those noises could reasonably have come from innocent conduct, such as footsteps, and it was possible that someone killed Turner after Danner had left the apartment. He also challenges the State's suggestion that he was attempting to destroy evidence by depositing items in a dumpster at the apartment complex the next morning. He notes that no trash was recovered or produced at trial linking him to the murder and that there is an equally innocent explanation for his actions. Thus, it also is not sufficient to rule out all other reasonable conclusions. He asserts that while the circumstantial evidence presented might be sufficient to prove that he was present at the time of the attack, it is not sufficient to prove that he participated in Turner's murder. He notes that presence alone at the scene of the crime is insufficient to establish guilt.
Danner is correct that if circumstantial evidence provides the basis to support a conviction, it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. See Edmond v. State , 351 Ark. 495, 95 S.W.3d 789 (2003). Whether the evidence excludes every other hypothesis is left to the jury to decide. Carmichael v. State , 340 Ark. 598, 12 S.W.3d 225 (2000). The credibility of witnesses is an issue for the jury and not the court. Burley v. State , 348 Ark. 422, 73 S.W.3d 600 (2002). 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.
As noted above, Danner challenges the sufficiency of the circumstantial evidence by taking the evidence presented and examining each fact in isolation. Yet jurors do not and need not view each fact in isolation; rather, they may consider the evidence as a whole. Duren v. State , 2018 Ark. App. 68, at 4, 544 S.W.3d 555, 558. The jury is entitled to draw any reasonable inference from circumstantial evidence to the same extent that it can from direct evidence. Id.
Here, Danner was one of the last-known persons to see Turner alive. He is seen on surveillance videos after leaving Turner's apartment, setting the time frame for his departure shortly after unusual "thumps and bumps" woke Turner's downstairs neighbor. His shoes match bloody footprints found at the scene, and Turner's blood is found on Danner's socks and underwear. On appeal, Danner asserts that the presence of blood on his socks and clothing does not prove that he actively participated in the murder, but only suggests he was present at the crime scene. Likewise, he contends the bloody shoe prints are insufficient because, while he wears a size 9 Converse shoe that matches the shoe prints found at the scene, Converse sells 270,000 pairs of that type of shoe every day; therefore, that evidence cannot rule out the possibility that someone else wearing a size 9 Converse shoe participated in Turner's murder. Thus, even if the shoe prints were found to have belonged to him, those prints do nothing more than show his presence at the scene. He claims that given the violent and bloody nature of Turner's murder, it would be entirely possible that he stepped in blood while leaving the apartment even though he did not participate in the murder. Thus, the shoe prints are not physical evidence that he killed Turner.
Danner's arguments on appeal that he could have been present at the scene but did not participate in Turner's murder directly contradict his statements to law enforcement during its investigation and his testimony at trial. Danner informed the police and testified at trial that Turner was alive and well when he left the apartment. In fact, he specifically testified that Turner was not bleeding when he left the apartment. Despite this, Danner could offer no explanation at trial for how Turner's blood could be found on his socks and underwear. He most certainly did not offer as an explanation his presence at the scene but a lack of participation in the crime.
When the evidence supporting the conviction is taken as a whole and in the light most favorable to the State, the foregoing evidence, while circumstantial, was sufficient to show that Danner was present at the time Turner was murdered and that he actively participated in the crime, either alone or with his brother, or joined its subsequent coverup. Thus, we affirm Danner's conviction for first-degree murder.
Affirmed.
Vaught and Murphy, JJ., agree.
This case is before us for the second time. We previously ordered a supplemental addendum in Danner v. State , 2018 Ark. App. 447, 2018 WL 4610851.
In addition to the lethal injuries, Turner also sustained roughly seventy puncture wounds in the shape of an "X" on his chest and left armpit.
In the investigation of the crime scene at Turner's apartment, no backpack was found by law enforcement.
One of the surveillance videos was time stamped 4:59 a.m., but the system had not been adjusted for daylight savings time. | [
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RAYMOND R. ABRAMSON, Judge
Tabatha Black appeals from the Scott County Circuit Court order terminating her parental rights to her son, S.N. On appeal, Black argues that it was not in S.N.'s best interest to terminate her parental rights. Specifically, Black asserts that because S.B., a sibling of S.N.'s, remained in her custody, the circuit court's potential-harm finding was in error. Black does not contest the statutory grounds for termination. For the following reasons, we affirm.
An order forever terminating parental rights must be based on clear and convincing evidence that termination is in the child's best interest. Ark. Code Ann. § 9-27-341(b)(3)(A) (Supp. 2017). In determining whether termination is in the child's best interest, the circuit court must consider the likelihood that the child will be adopted if the termination petition is granted and 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, parents, or putative parent or parents. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) and (ii). Additionally, the Arkansas Department of Human Services (DHS) must prove by clear and convincing evidence at least one statutory ground for termination. Ark. Code Ann. § 9-27-341(b)(3)(B). We do not reverse a termination order unless the circuit court's findings of clear and convincing evidence were clearly erroneous. Meriweather v. Ark. Dep't of Health & Human Servs. , 98 Ark. App. 328, 255 S.W.3d 505 (2007). Because Black makes no challenge to the statutory grounds found by the circuit court to terminate her parental rights, the statutory-grounds decisions must be affirmed. See Benedict v. Ark. Dep't of Human Servs. , 96 Ark. App. 395, 409, 242 S.W.3d 305, 316-17 (2006).
In May 2014, S.N., who was four years old at the time, was removed from the custody of Black. S.N. was subsequently adjudicated dependent-neglected because Black "could not provide adequate supervision or housing for the juvenile as a result of her substance abuse." S.N. was eventually placed with his father, Jeffrey Newell. Black complied with the case plan only in part, and the circuit court found that her compliance was insufficient for reunification with S.N. Custody was awarded to Newell with supervised visitation to Black, and the case was closed.
Four months after the case had been closed, S.N. was removed from Newell on an emergency basis after he was arrested concerning a fatal stabbing, thus leaving S.N. without a caretaker. Black appeared at the probable-cause hearing, as well as the adjudication hearing, without an attorney, and no appeal was filed from the adjudication order. However, the circuit court found that although Black, as the noncustodial parent, was not present when the incident that led to S.N.'s removal occurred, she was not a fit parent for purposes of custody at that time.
At the first review hearing in March 2017, the circuit court found that Black was not in compliance with the case plan and court orders in that she was unemployed, was behind in child support, had failed to take the steps necessary to attend counseling with her son, and had tested positive for marijuana. Her compliance had not improved significantly as of the July 2017 permanency-planning hearing, and the court questioned whether she could parent S.N. because she had stated in court that it took her a week to function after attending court. Black had custody of another child--S.N.'s younger sister, S.B., throughout all the proceedings concerning S.N.
On August 22, 2017, DHS filed a petition for termination of parental rights alleging that Black was unfit to take custody, that she had failed to provide support, and that further services would not benefit her. DHS also alleged that termination would be in S.N.'s best interest. Eight weeks later, DHS filed a motion for continuance of the termination hearing, asserting that Black had shown "significant improvement over the last couple months and [had] completed most of her services." DHS sought additional time to allow Black to show consistency in her improvement. The court held a hearing on the motion and denied the continuance. As a result, DHS moved for dismissal of its petition, which the court granted. In the resulting order, the court ordered that the case be referred to DHS's Division of Children and Family Services (DCFS) central office and recommended that a new caseworker be assigned who was "independent of the case."
On January 9, 2018, the court held a review hearing and found in the resulting order that Black had an appropriate home and lived with her two-year-old daughter, S.B., and that she had been employed through a temporary service. The order also noted that Black had testified that she had just started a full-time job at the humane society. The circuit court found that a church had been assisting Black in paying her bills and that she was to pay it back at $100 a month; the order also recognized that Black had a driver's permit and a vehicle, that she was visiting S.N. regularly and was attending family counseling, and that she had completed parenting classes. Black also underwent a psychological evaluation and a drug-and-alcohol assessment and completed a drug-and-alcohol safety program for a DWI conviction. However, the circuit court still found that it could not place S.N. with Black, despite commending her for being drug-free, because "she has issues of instability in her parenting and in finances and employment."
On January 10, DHS filed another petition for termination of parental rights, alleging that while Black had been complying with the case plan and testing negative on her drug screens, Black had been relying on her church and its members for financial support and had opened a crowdfunding account on GoFundMe with an underlying falsified story seeking further financial support. DHS also alleged that while S.B. remained in Black's custody, Black had an "inability to parent two children" and that her psychological evaluation indicated "parenting issues."
On March 27, 2018, the court held a hearing on the petition for termination of parental rights. The testimony reflected the history of the case as delineated in the court's orders, although the caseworker added that Black had recently tested positive for marijuana. The caseworker acknowledged, however, that S.B. was left in Black's care and custody even after S.N. had been removed from his father and that S.B. remained there at the time of the termination hearing.
The psychological examiner, Lewis Spray, testified that in his opinion, Black could possibly have issues parenting on a consistent basis--specifically that she might have trouble parenting small children. Charlotte Kraiger, S.N.'s therapist, testified that Black could not meet S.N.'s emotional needs at the time of termination.
Black testified in her defense, presenting a lease agreement and other certificates of completion, such as for a parenting class and a drug-and-alcohol education class stemming from a previous DWI. Black's mother also testified, noting that three-year-old S.B. lived with Black and always had, that Black was her primary caretaker, and that when Black visited with her other children in her home (other children who were not a part of the case), the visits went well.
After the hearing, the circuit court entered an order terminating Black's parental rights. The circuit court found that termination was warranted under three statutory grounds and that termination was in S.N.'s best interest because he would likely find permanency through adoption. The court also found that allowing Black to have custody would subject S.N. to potential harm. Black now appeals.
We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep't of Human Servs. , 344 Ark. 207, 40 S.W.3d 286 (2001). However, we will not reverse the circuit court's finding of clear and convincing evidence unless that finding is clearly erroneous. Krecker v. Ark. Dep't of Human Servs. , 2017 Ark. App. 537, 530 S.W.3d 393. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, considering the entire evidence, is left with a definite and firm conviction that a mistake has been made. Id. When determining the clearly erroneous question, we give due deference to the opportunity of the circuit court to judge the credibility of witnesses. Id. The appellate court is not to act as a "super factfinder," substituting its own judgment or second-guessing the credibility determinations of the circuit court; we reverse only in those cases in which a definite mistake has occurred. Harris v. Ark. Dep't of Human Servs. , 2015 Ark. App. 508, at 7, 470 S.W.3d 316, 320.
Black's appellate argument that it is not in S.N.'s best interest for her parental rights to be terminated is twofold: she argues that the record does not "demonstrate that S.N.'s health or safety would be at risk if he was placed in his mother's custody and care"; she also asserts that because S.B. remained in Black's custody for the entire case, it cannot be said that returning S.N. to Black would expose S.N. to potential harm. Neither argument is persuasive. The connection that Black attempts to draw between S.N. and S.B. and their best interests is unavailing and speculative. Black asserts, without citation to authority, that "when the bases of the potential harm finding would apply equally to both children--the child out of the home, and the child in the home--and the parent is sufficiently fit to maintain custody of one, then the parent should be given custody of the other."
The case law does not support this assertion. Rather, "when making its best-interest analysis, the circuit court must make an individual determination whether termination is in each child's best interest and cannot treat the children as an amorphous group in which the best interest of one will meet the interests of all." Weatherspoon v. Ark. Dep't of Human Servs. , 2013 Ark. App. 104, at 10, 426 S.W.3d 520, 526 (citing Dominguez v. Ark. Dep't of Human Servs. , 2009 Ark. App. 404 ). This case concerned only S.N. S.N. was first placed in foster care from May 2014 to July 2016 due to Black's substance abuse and inadequate supervision. S.B. was born in 2015 while S.N. was in foster care. We cannot say it was reversible error for the circuit court to give no weight to Black's relationship with S.B. when making its best-interest finding for S.N.
The intent of the Arkansas termination-of-parental-rights statute is to provide permanency in a juvenile's life in all instances in which return to the family home is contrary to the health, safety, or welfare of the child, and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time as viewed from the juvenile's perspective. Ark. Code Ann. § 9-27-341(a)(3). A parent's rights may be terminated if a circuit court finds by clear and convincing evidence that it is in the best interest of the juvenile. Ark. Code Ann. § 9-27-341(b)(3)(A). The court must consider the likelihood that the juvenile will be adopted if the termination petition is granted and the potential harm caused by returning the child to the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i)-(ii). In the present case, the court, after much consideration, determined that there was a clear likelihood that S.N. would be adopted and that there was a risk of potential harm if returned to Black. Black makes no challenge to the court's finding that S.N. is adoptable; therefore, it is waived on appeal.
When making the decision whether to terminate parental rights, the circuit court has a duty to look at the case as a whole and how the parent has discharged her parental duties, the substantial risk of serious harm the parent imposes, and whether the parent is unfit. In re Adoption of K.M.C. , 62 Ark. App. 95, 969 S.W.2d 197 (1998). The potential-harm analysis is to be conducted in broad terms. Sharks v. Ark. Dep't of Human Servs. , 2016 Ark. App. 435, 502 S.W.3d 569. A court is not required to positively identify a specific harm or to find that actual harm would result. Reid v. Ark. Dep't of Human Servs. , 2011 Ark. 187, at 14, 380 S.W.3d 918, 925. Black asserts that the court "did not delineate any factual basis to support its potential harm finding ... presumably relying on the facts set out in its findings regarding grounds." It was perfectly proper, however, for the circuit court to simply refer to "the evidence" in its order as the basis for its potential-harm finding. The statutory-grounds portions of the order set out in detail all the evidence against Black, and the same evidence used to support statutory grounds can also support potential harm. See Miller v. Ark. Dep't of Human Servs. , 2017 Ark. App. 396, at 14, 525 S.W.3d 48, 57.
The record demonstrates that Black consistently failed to comply with the circuit court's orders and the case plan. For example, Black was ordered to undergo a drug-and-alcohol assessment, which recommended that she attend outpatient drug treatment. Black did not attend outpatient treatment. She instead took a twelve-hour "safety" course that was not focused on individual sobriety. Over an eighteen-month period, Black was unable to complete the minimum requirements to qualify for outpatient treatment, which included attending twelve individual counseling sessions, attending twelve group sessions, and passing six drug screens.
The circuit court also ordered Black to obtain stable employment and income. But at the time of the termination hearing, she still did not have income sufficient to support two children. She instead was attempting to solicit GoFundMe donations under false pretenses, claiming that she had four or five children, that her house was broken into when the children were home, and that she had been attacked.
A parent's failure to comply with the circuit court's orders in a dependency-neglect case is evidence of potential harm. L.W. v. Ark. Dep't of Human Servs. , 2011 Ark. App. 44, at 13, 380 S.W.3d 489, 497. Partial or even full completion of the case plan is not determinative of the outcome of the termination proceeding. Wright v. Ark. Dep't of Human Servs. , 83 Ark. App. 1, 115 S.W.3d 332 (2003). What matters is whether completion of the case plan achieved the intended result of making a parent capable of caring for the child; mere compliance with the orders of the court and DHS is not sufficient if the roots of the parent's deficiencies are not remedied. Lee v. Ark. Dep't of Human Servs. , 102 Ark. App. 337, 345-46, 285 S.W.3d 277, 282-83 (2008). Black also continued to test positive for drugs throughout the case. As late as two months before the termination hearing, she was still testing positive for marijuana. Case law is clear that a parent's continuing use of illegal drugs during a dependency-neglect case poses a risk of harm to a child. Howell v. Ark. Dep't of Human Servs. , 2017 Ark. App. 154, at 6, 517 S.W.3d 431, 435. There is ample evidence to support the circuit court's best-interest finding that allowing Black to have custody would subject S.N. to potential harm. Accordingly, we affirm.
Affirmed.
Harrison and Brown, JJ., agree.
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ROBERT J. GLADWIN, JUDGE
Ashley Cordell appeals the Baxter County Circuit Court's order changing custody of the parties' children to appellee Joshua Cordell. The circuit court also found Joshua in contempt for failing to pay Ashley $12,500 in retirement proceeds pursuant to the parties' property-settlement agreement (PSA) and ordered that Joshua's child-support arrearage and the retirement proceeds he owed be partially offset from Ashley's new child-support obligation. On appeal, Ashley contends that the circuit court erred by changing custody and by failing to require Joshua to pay the amounts he owed. We affirm.
I. Facts
Ashley and Joshua were divorced on June 18, 2015, and Ashley was awarded custody of their three children, HC1 (born July 7, 2003), AC (born September 16, 2004), and HC2 (born July 25, 2007). Incorporated into the decree was the parties' PSA providing that Joshua would pay $947 per month in child support, and visitation would be agreed on by the parties. Also, among other obligations, the PSA stated that Joshua had cashed his Eaton retirement account in the amount of $25,000 and that he would pay Ashley one-half in the amount of $12,500 no later than 90 days from the date of filing, June 18, 2015.
On October 4, 2016, Joshua filed a petition to modify custody based on a change in circumstances. Joshua alleged that Ashley and the children were moving to Bryant, Arkansas, with Donnie Ramsey, Ashley's boyfriend. Ashley pled unclean hands and laches and sought dismissal of Joshua's petition.
A temporary order filed March 2, 2017, reflects that a change in circumstances had been demonstrated that temporarily modified the visitation. The circuit court provided specific instructions regarding visitation exchanges for the parties' children through March 2017 and ordered a paternity test be performed on HC3, a child born after the parties' divorce decree was filed.
A week after entry of the temporary order, Ashley filed a motion for contempt against Joshua alleging that he was $9042 in arrears on child support, and she asked that Joshua be ordered to pay the arrearage and remain current. She also alleged that Joshua had not paid the $12,500 owed to her for half of his retirement account under the PSA. She asked that Joshua be ordered to pay her the $12,500 "immediately."
At a hearing held June 29, 2017, the parties' three children testified, giving positive statements about both parents. Each child described living in Bryant with their mom and Donnie. HC2, age 9, said that he wanted to live with his dad. He said that when he had been with his dad, he had a wreck on the four-wheeler and had to have surgery on his arm because his elbow had been shattered. He said that it was after midnight when he had wrecked and that he had not been wearing a helmet.
AC, age 12, testified she did not like Bryant Middle School because she was being bullied. She said her grades were good in both Bryant and Mountain Home. She said she helped HC2 with his homework, and when they were with their dad, he would help with homework. She said that if she lived in a perfect world, she would live in Mountain Home. She said that her mother and Donnie sometimes argued, but not much. She said that she had to skip school to babysit her baby sister, HC3, while living in Bryant. AC said that she was involved in competitive cheerleading and that her dad tried to go to all of her performances. She said that she would rather live with her dad, but she did not want to leave her mom. She said that she had come home from her dad's house with lice on two occasions. She said that she had been in competitive cheerleading in Mountain Home too.
HC1, age 14, testified that she liked Bryant Middle School and that she had not been bullied. She said that her sister helps HC2 with his homework and that her mother and Donnie did not argue much. She also said that she had to skip school to babysit her baby sister, HC3. She said that she had to blow into her maternal grandmother's, Pam O'Dea's, Breathalyzer when she rode with her. She said that she cheered in competitions and had been doing so for six years. She said that she got lice two times while at her dad's home and that she would choose to live with her mother.
Ashley testified that she works in human resources for SA Pharmaceuticals and began working there October 3, 2016. She said that she had moved to Bryant the last week of September 2016 and that she had decided to move because she got a better job offer. She was dating Donnie at the time, and he lived in Bryant. She said she was currently married to Donnie, whom she met at a bar in Mountain Home, and that she did not plan to have children with him.
Ashley said that Joshua had a hard time during the divorce, and that caused him to get a DWI in January 2015 when he had overdosed on prescription medication and tried to leave their house in his truck. She said that Joshua had hit a tree, neighbors called police, and Joshua had been arrested. She said that he spent three days in ICU and was discharged to a psychiatric hospital for a week rather than going to jail.
Ashley said that she had received the paternity test on HC3 and that Joshua is not the child's father. She said that even though the temporary order required that she have the paternity test done as soon as possible, it had been hard for her to make the time to do it because she worked full time. She said HC3's father is Dan Owens and that she had a relationship with him while she had been separated from Joshua. She said that Joshua had always had known that he was not HC3's father and that after their divorce in June 2015, she and Joshua tried to work things out, so he moved back in October. She said Joshua had known she was pregnant and that the child was not his. After she gave birth in December, Joshua wanted HC3 to be "no different than the other kids." She said that they finally split up in March 2016.
Ashley said that she and Donnie never argued and that they only had slight disagreements. She said that the children had a good relationship with Donnie and that they felt comfortable with him. She said that she would "absolutely describe him as being active in their lives." She said that she had moved to Bryant for a better-paying job and to provide a better life for her children. She said that their grades had significantly improved, especially HC2's, who is an A and B student now. She said that the girls are in "cheer" for which she pays $255 per month. She said that each season costs $1000 per child for uniforms, shoes, and accessories and that Joshua does not pay for that. She said that the children are currently on ARKids insurance but that her recent pay raise would disqualify them for that program, and she would be putting them on her work insurance.
Ashley said that she was against the children riding four-wheelers and dirt bikes without adult supervision and without helmets. She described HC2's four-wheeler accident as happening at 2:30 a.m. and said that she was notified when they arrived at the emergency room "roughly at 2:30 in the morning." She said that she was not told about the dirt-bike wreck that happened during spring break until she picked up the children on Friday and saw scrapes all over HC2. She said that he had not been wearing a helmet. She said that she cannot communicate with Joshua about the four-wheeler and dirt bike because he is argumentative.
Ashley said that cleanliness was an issue at Joshua's house because the children had come home with lice "several times." She said that they knew it is coming from Joshua's house because they did not have it when they went, and they had it when they returned. She said that she wanted the children to continue to reside with her because she took good care of them, she had a very good job, and the children were used to living with her.
She said that Joshua had been ordered to pay child support and that he was behind $9,877.99. He was supposed to pay $948 per month, and his garnishment began in September 2016. She asked that he be ordered to pay her the $12,500 pursuant to the PSA and be held in contempt for nonpayment.
Joshua testified that he lived in a five-bedroom, three-bath home in Mountain Home. He said that the home sits on ten acres and that he had room for his children; each child had a bed and a dresser, and the bathrooms were segregated for boys and girls. He introduced photographs of a stocked freezer, pantry, and refrigerator, and other pictures of the house, both indoor and out.
Joshua said that he was married to Tina. He said that after the divorce he had seen his children quite a bit, especially before and during the move Ashley had made to Bryant because he had kept the children with him. He said that after they moved to Bryant, there was a big change. Now he only sees them according to the court order and at Ashley's whim. He said that when they had lived in Mountain Home, he was included in the school and extracurricular activities. Now he does not know about the school year except for when the children call. He said he had learned the day before the hearing that he was not HC3's father. He said that he and Ashley had been married to each other when HC3 was conceived and that he and Ashley remained together after the divorce. He said he had thought there was a good possibility that the child was his and that they had discussed it. He said that the paternity test was "retaliation" for wanting to spend time with his children. He said that HC3 called Donnie "Dad" and that he quit picking her up for visitation because he did not want to confuse her.
Joshua said that he worked at Meeks Lumber making ten dollars per hour. His gross income for 2016 was $14,989. He pays his child support through wage withholding, and he did not know if he paid the full amount. At the end of each pay period, he is left with between eighty and ninety dollars. He said that his wife also helped him with the children. He said that he had been working at Eaton when child support was first established, and he had not been able to get another job that paid as well. He said that when he left Eaton he cashed out his retirement. He said that he and Ashley spent the retirement money during the time they had been together, during and after the divorce, and that they had spent the money on household bills and vehicle repairs.
Joshua admitted that HC2 had a four-wheeler accident but said that it seemed worse than it really was. He said that he immediately took HC2 for medical attention. He said that if the judge were to tell him to get helmets for the kids, he would do it. He also said that if he were to get custody, he would not ask for child support and that he would never keep the children from their mother. He denied that he had ever had lice and said that his house remained clean.
On cross-examination, Joshua said that he married Tina on February 19, 2017, and that they lived in her house. He said that he had moved in while her husband still lived there. "He left and I continued to live there. We did not have a relationship until after." He said he did not know how long he had lived with Tina before she divorced her husband.
After the hearing but before an order was filed, Joshua filed a verified emergency petition for change of custody with attached affidavits from HC1 and AC. In the affidavits, the girls stated that their mother was dating a married man named Kelly Webb and had been since before the last court hearing. They stated that their mother had told them not to say anything about Kelly to the court at the prior hearing, and they alleged that their mother was moving them to an apartment in Cabot to be closer to Kelly Webb. The children stated that they would be forced to go to Bryant schools for three weeks then be moved to Cabot schools. They claimed that they had been keeping HC3 while their mother went out with Kelly and that they sometimes went to hotel rooms with their mother and Kelly.
At the hearing on the emergency motion, the children testified. HC1 said that Kelly had been her mother's boyfriend even during the last court hearing and that she had been married to Donnie then. She said that her mother had called her a "whore," but she thought it had been out of anger because they had been fighting. She stated that her mother and Kelly did not leave them alone at home but took them when they stayed at hotels; or they stayed at their home in Bryant, and Kelly stayed there too. She said they had moved to Cabot because they did not like Bryant. She said that she liked Cabot schools and that they lived closer to Kelly. She said that she thought Kelly was married and that she had driven by his house but had not gone inside. She said that her mother took them to spend the night with her and her boyfriend. "Sometimes it was together in the same room, and sometimes it was separate. Yes, I've slept in the same room as both of them before." She said that she did "cheer" in Cabot and that she was afraid if she went to her father's she would not get to do it. She said that she wanted to live with her mother and that she had written the affidavit because she had been upset with her mother. She said that her father had told them he was taking them shopping for school but instead took them to his lawyer's office and that he had told them what to write.
AC testified that she did not know if her mother was married "right now" and that her mother was dating Kelly. She said her mom had been having a relationship with him the last time they were in court. She said her mother used to leave them home alone and go with Kelly, but she did not do that anymore. She said that her mother sometimes stayed out overnight while the kids stayed at the apartment. She said that she never went to a hotel with them overnight but that they did go there to talk to Kelly. She said that her sister skips school to watch HC3 sometimes. She said that she liked Cabot better than Bryant but that she still wanted to go to Mountain Home schools.
AC said that her mother had told her not to say anything about her relationship with Kelly at the last hearing and that her mother told her sister the same thing. She said that she felt guilty for lying and realized that it was wrong. She said that they had moved to Cabot to be closer to Kelly and also because they did not want to be in Bryant schools. She said that her mother and Kelly worked together. She said that their apartment had three bedrooms and that they each had a room except HC2, who shared with his mom "whenever Kelly is not there." She said that Kelly did not live with them and that he is married. She said that it upset her that her mother was dating a married man "because I don't know what he's going to do to my mom and cheat on her or something. Yes, that worries me quite a bit."
AC said that she wanted to live with her dad in Mountain Home. She said she had not been able to speak to her father because her mother had taken her phone and blocked her dad's number. She said she was to use her mother's phone to call her dad. "It doesn't matter to me if my mom marries Kelly, just I wish he wasn't married and dating my mom at the same time." She stated, "Yes, last time I was in court I said I felt like [HC3's] mom. I don't feel that way as much as I used to. But it's gotten better. Yes, that's because I don't have to stay home anymore and watch her. Yes, that's [HC1's] job now." She said that HC2 had been wearing a helmet since the last court date.
HC2 said that they had been in Cabot about a month, that he did not like the new school, that he liked Bryant better, and that he liked Mountain Home more. He would like to live with his dad. He said that he wears a helmet when riding the four-wheeler. He said that he had known Kelly during the last court hearing, but his mother had wanted to keep that a secret. He said that he did not talk to Kelly much but that Kelly seemed like a nice guy. He said that his mom and Kelly had left him home alone to go out. He said he had stayed the night with them at a hotel. He said that he had not seen Donnie since Donnie helped them move into the apartment at Cabot. He said that he slept on the couch. He said that he knows a lady named Rachel, his mother's friend, and that she had stayed with them in Cabot. He said that Rachel and his mother went out for fun and that Rachel slept in the bed with his mother and Kelly. He said that they kept the bedroom door locked. He said that his mother had blocked his dad's number from his sisters' phones, so he could not talk to his dad as often as he would like.
Ashley testified that she was still married to Donnie but that they were separated. She said that she knew Kelly from work, and their relationship developed after she separated from Donnie. She said that "a divorce has been filed this week." She said that Joshua had an affair while she had been married to him and that he had an affair with his current wife while she had been married. She said that her kids may not have known what was going on with their dad and Tina. She said that the children had stayed the night with their dad and Tina before they were married. She said that she did not know what the difference would be with "what I'm doing with Kelly than what he did with Tina." She said that she believed it was okay to leave her children with her mother and asked, "Why does it matter how many DWIs she has? She has one. I have no idea if she is working on her second one right now, and I don't know what this pertains to my case and my children."
The circuit court ruled from the bench stating,
The parties were divorced by a decree of this court on June 18th of '15. And Ashley was awarded custody. Since that time, there has been a change of circumstances in that the parties have new families and new homes. And the children are older and not doing so well in school, some of them, at any rate. Both parties have engaged in improper conduct in front of the children that no person, parent or anyone else, should be involved in. But Ms. Ramsey has recently, in fact, been engaging in immoral conduct openly in front of the children. If there's any hope that the children are raised with any morals it will have to be with Josh. And I hope that can happen. I guess we'll see. So, I'll find that there's a change of circumstances, including this openly immoral conduct, and change custody to Josh.
If the kids are going to ride a four-wheeler or a motorcycle, they'll do it with a helmet. They'll not be riding after dark or without supervision. The children will not be allowed to ride in a vehicle driven by Ms. O'Dea.
....
Mr. Cordell is in arrears of child support. The last figure I had was $9,042. He also owes Ashley $12,500 as was part of the divorce settlement, which he hasn't paid. Again, he is in contempt. Ms. Ramsey will submit an affidavit of financial means within 10 days. The attorneys will look over it and calculate the amount of child support she owes. I'm going to deviate from the chart and require her to only pay one-half of the chart amount. The one-half Josh doesn't receive will be credited against the sum he owes Ashley until that sum is paid in full. Josh can claim the children for child support purposes.
A formal order encompassing the circuit court's bench ruling was filed on December 11, 2017. Ashley filed a timely notice of appeal, and this appeal follows.
II. Standard of Review and Applicable Law
This court recently reviewed a change-of-custody decision and set forth our standard of review and the applicable law as follows:
On appeal 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. Hodge v. Hodge , 97 Ark. App. 217, 219, 245 S.W.3d 695, 697 (2006). 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. Due deference is given to the circuit court's superior position to judge the credibility of the witnesses. Id. The Arkansas Supreme Court has held that there is no other case in which the superior position, ability, and opportunity of the circuit court to observe the parties carry a greater weight than one involving the custody of minor children. Taylor v. Taylor , 345 Ark. 300, 304, 47 S.W.3d 222, 224 (2001).
The best interest of the children is the polestar in every child-custody case; all other considerations are secondary. Id. Factors a court may consider in determining what is in the best interest of the child include the psychological relationship between the parents and the child, the need for stability and continuity in the child's relationship with the parents and siblings, the past conduct of the parents toward the child, and the reasonable preference of a child. Rector v. Rector , 58 Ark. App. 132, 947 S.W.2d 389 (1997).
For custody-modification cases, courts impose more stringent standards than they do for initial determinations of custody in order to promote stability and continuity in the life of the child and to discourage the repeated litigation of the same issues. Geren Williams v. Geren , 2015 Ark. App. 197, at 10, 458 S.W.3d 759, 766. The party seeking to modify the custody order has the burden of showing a material change in circumstances. Id. In order to change custody, the circuit court must first determine that a material change in circumstances has occurred since the last custody order; if that threshold requirement is met, it must then determine who should have custody, with the sole consideration being the best interest of the children. Id. Determining whether there has been a change of circumstances requires a full consideration of the circumstances that existed when the last custody order was entered in comparison to the circumstances at the time the change of custody is considered. Id. at 10-11, 458 S.W.3d at 766.
Buskirk v. Buskirk , 2018 Ark. App. 417, at 3-4, 559 S.W.3d 285, 287-88.
It is well settled that this court gives "due deference to the superior position of the trial court to view and judge the credibility of the witnesses. This deference is even greater in cases involving child custody, as a heavier burden is placed on the trial court to use the fullest extent of its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children." Lowder v. Gregory , 2014 Ark. App. 704, at 14-15, 451 S.W.3d 220, 229.
On appeal of child-custody cases, this court will consider the evidence de novo, but it will not reverse a circuit court's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Hewett v. Hewett , 2018 Ark. App. 235, at 4, 547 S.W.3d 138, 140. The Arkansas Supreme Court has held that "[a] judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that were either not presented to the chancellor or were not known by the chancellor at the time the original custody order was entered." Id. at 3, 547 S.W.3d at 140 (quoting Jones v. Jones , 326 Ark. 481, 491, 931 S.W.2d 767, 772 (1996) ). Moreover, in determining that the circumstances have changed, a court is required to fully consider the circumstances that existed when the last custody order was entered and should compare it to the circumstances existing at the time the subsequent change-of-custody request is considered. Geren Williams , 2015 Ark. App. 197, at 10-11, 458 S.W.3d at 766.
Buskirk , 2018 Ark. App. 417, at 8, 559 S.W.3d at 290.
III. Change of Custody
Ashley alleges that the change of circumstances relied on by the circuit court were the parties' new homes and families, the change in academics of the children, and her recent alleged immoral conduct. She contends that both parties had remarried since the original custody order. She had married Donnie and moved from Mountain Home to Bryant at the time of the first hearing, and at the second hearing, she had separated from Donnie and moved to Cabot.
She also contends that HC2 testified that he was doing well in school except for spelling, and AC testified that her grades were the same in Bryant as in Mountain Home. HC1 testified that her grades were better in Bryant than Mountain Home. At the second hearing, neither daughter testified that their grades had suffered in Cabot. Thus, Ashley contends that there was no material change in circumstances regarding academics.
Ashley argues that "the only issue" regarding immoral conduct was that she is dating a married man. She states that while it "may not be" proper for the children to be exposed to such behavior, it was not the first time they had been subjected to such behavior by a parent. She argues that after their divorce, Joshua moved in with his best friend's wife while the wife was still married. She claims that Joshua admits he did the very same thing, which he claims is the reason Ashley should not have custody. Thus, she argues that the alleged immoral conduct around the children is not a change of circumstances but is a double standard.
She claims that even if there were a change in circumstances, it is not in the children's best interest to change custody. She argues that the circuit court did not consider that she is the primary caretaker. See Wise v. Wise , 2010 Ark. App. 184, 374 S.W.3d 704. She contends that the children did not complain that she was not providing for their needs. She maintains she was doing so despite Joshua's nonpayment of child support.
She argues that the circuit court should also have considered the preference of the child. Ark. Code Ann. § 9-13-101(a)(1)(A)(ii) (Repl. 2015) (In determining the best interest of the child, the court may consider the preferences of the child if the child is of a sufficient age and mental capacity to reason, regardless of chronological age.). She contends that HC2 said that he wanted to live with his dad because he gets to ride four-wheelers and dirt bikes, which led to his injury because he was not supervised. AC said that she wanted to live with her dad. However, HC1 said that she wanted to live with her mom. Ashley cites Atkinson v. Atkinson , 72 Ark. App. 15, 32 S.W.3d 41 (2000), for the proposition that separation of siblings is not in the best interest of children. She contends that their separation from HC3 should also prevent a change of custody.
Ashley argues that Joshua's house is not best for the children because there are eight children there and he has insufficient funds. She argues there is no set bedtime and that HC2 said it was normal for him to be outside at 2:00 a.m. Thus, she argues that it was not in the children's best interest to change custody. She contends that, at most, the court should have prohibited immoral conduct in the children's presence.
Joshua argues that the circuit court appropriately found a material change in circumstances and that it was in the children's best interest to be placed with him. A de novo review reveals that the facts developed from both hearings showed that Ashley was dating a married man, Kelly, while still living with her new husband, Donnie, and the children knew it. She was allowing Kelly to stay overnight in the house with the children present. Sometimes her friend Rachel would also stay overnight in the bedroom with Ashley and Kelly. At least some of the children stayed overnight in a single hotel room with Ashley and Kelly. Further, the children were uprooted and moved the second time in two years to follow their mother and her boyfriend. Also, Ashley was not honest with the circuit court at the first hearing regarding the status of her relationship with her husband Donnie because, as the children stated at the second hearing, Ashley was in a relationship with Kelly at the time of the first hearing. And, Ashley asked the children to keep her relationship with Kelly from the circuit court.
Ashley's argument that the circuit court employed a double standard in regard to her behavior is not well taken. The issue is not a weighted evaluation of moral failings. See Cranston v. Carroll , 97 Ark. App. 23, 242 S.W.3d 643 (2006) (stating that child-custody awards are not to reward or punish either parent). The issue is what is in the children's best interest. Moix v. Moix , 2013 Ark. 478, 430 S.W.3d 680. The Arkansas Supreme Court has considered immoral conduct to be a factor in determining whether circumstances have changed in cases that involve modification of custody. See Alphin v. Alphin , 364 Ark. 332, 219 S.W.3d 160 (2005) (citing Taylor v. Taylor , 353 Ark. 69, 110 S.W.3d 731 (2003) (noting that our supreme court has held that a parent's unmarried cohabitation with a romantic partner or a parent's promiscuous conduct in the presence of a child cannot be abided); Taylor v. Taylor , 345 Ark. 300, 47 S.W.3d 222 (2001) ; Hamilton v. Barrett , 337 Ark. 460, 989 S.W.2d 520 (1999) ; Word v. Remick , 75 Ark. App. 390, 58 S.W.3d 422 (2001) ); see also Stibich v. Stibich , 2016 Ark. App. 251, 491 S.W.3d 475 (holding that the circuit court properly considered the custodial parent's living with someone out of wedlock and having sex with that person in front of the children in determining that a material change in circumstances had occurred that warranted a change in custody).
Contrary to Ashley's contention, Joshua argues that Atkinson , supra , stands for the proposition that a party cannot use a finding that it is in one child's best interest that his custody be awarded to a parent to infer that it is in the sibling's best interest to be awarded to the same parent. We agree and note that the circuit court's consideration of the children's wishes is not required, but permissive. See Malone v. Malone , 4 Ark. App. 366, 631 S.W.2d 318 (1982).
A de novo review allows this court to affirm for any reason so long as it is correct. See Alphin , supra. Joshua argues that the children with him receive more consistent care, a more predictable living environment, clearly segregated sleeping arrangements, a clear school schedule that does not require any child to skip school for their parents' convenience, and a home in an area where they are intimately familiar. Accordingly, with the record before us, we hold that the circuit court was not clearly erroneous in finding that it was in the children's best interest to change custody to their dad.
IV. Contempt
The PSA required that Joshua pay Ashley $12,500 within 90 days following the decree. Ashley filed a motion for contempt for nonpayment of child support and the nonpayment of $12,500 owed to her pursuant to the PSA. The circuit court found Joshua in contempt on the PSA money and applied the amount owed as a partial offset to future child-support payments to be made by Ashley. Ashley must pay Joshua half of her child-support obligation with the other half being offset by the balance of the arrearage and the retirement payment owed to her.
Ashley argues that (1) the circuit court was without authority to modify the arrearages in child support by limiting her ability to collect, and (2) the circuit court was without authority to modify the arrearages that accrued prior to Joshua filing a motion. She contends that when the child support became due and payable, it became a judgment that could not be modified. She also claims that the circuit court should have reduced the arrearages to a judgment and that she should be allowed to take whatever steps available to collect the past-due child support. Ashley also argues that the circuit court erred in allowing a setoff in child support for the payment of the $12,500 that Joshua owes her under the PSA. Citing Tiner v. Tiner , 2012 Ark. App. 483, 422 S.W.3d 178, she argues that the circuit court did not have the authority to modify the PSA to allow payments rather than a lump-sum payment. As in Tiner , Ashley contends that the modification gave Joshua relief rather than coercing him into paying a lump sum to purge his contempt.
However, Ashley did not object to the circuit court's ruling on these issues; thus, the arguments are not preserved for our review. Unless a party has no opportunity to object to a ruling of the circuit court, an objection must be made at the time of the ruling, and the objecting party must make known to the court the action desired and the grounds of the objection. Olson v. Olson , 2014 Ark. 537, at 7, 453 S.W.3d 128, 133. Accordingly, the circuit court's order regarding the child-support offset is affirmed.
Affirmed.
Virden and Vaught, JJ., agree.
Ashley gave birth to HC3 on December 5, 2015, and the final order reflects that Joshua is not her biological father; thus, the children subject to the custody dispute are HC1, AC, and HC2. | [
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LARRY D. VAUGHT, Judge
Appellant Brian Newton appeals the September 21, 2017 order entered by the Saline County Circuit Court denying his motion to modify child support. On appeal, Brian first argues that the circuit court abused its discretion in excluding evidence of his 2015 income that he alleged was used by the circuit court in 2016 to calculate his base child-support obligation and that he claims is required to prove a change in circumstances to support his motion to modify child support. Brian also argues that the circuit court clearly erred in denying his motion to modify child support by ordering him to pay appellee Rebecca Newton additional child support in the amount of 21 percent of retained earnings that he claims were included in his 2015 income and had already been accounted for in his base child-support obligation awarded by the circuit court in 2016. We reverse and remand.
There were two hearings in this case relevant to this appeal. The first hearing was Brian and Rebecca's divorce hearing, which took place in February 2016. At this hearing, Gary Cox, a certified public accountant, testified that he had been preparing tax returns for Brian, Rebecca, and their companies for the past nine or ten years. Cox stated that one of Brian and Rebecca's companies was Newton Medical, Inc. (Newton Medical), an S corporation. According to Cox, Newton Medical's 2015 tax returns reflected retained earnings of $66,465 and that Brian and Rebecca throughout the course of the year had received distributions from those earnings to pay their household and personal living expenses.
At the conclusion of the divorce hearing, the circuit court orally granted the divorce, and Brian was ordered to purchase Rebecca's interest in Newton Medical. With respect to child support, the court stated that "[f]uture child support will be paid monthly and will continue to be based upon the amount, as has been done in the past, that as an average over 12 months of what has been taken out for personal use." Brian's counsel then reported to the circuit court that Brian had been paying monthly child support of $2,012.67. The court responded:
I will add in - - because Mr. Newton has so much control over his income - - and I don't really expect anything underhanded, but I have to be careful. If there is a ten percent change in that from year to year, there should necessarily, in order for a modification of support, be some type of justification for that to be able to be provided. And to put that in a little bit more common English, if Mr. Newton were to reduce his take-home pay by more than ten percent, which would kick in the child support modification provision of the law, and yet his overall business income either went up or did not change by a very, very similar amount, the Court would probably not even come close to considering lowering child support.
Further, at the preparation of taxes each year, Mr. Newton will provide Ms. Newton with a copy of his full tax return. Both state and federal. During the time that both children are of minority age from this point on - - obviously not dealing with the money that's being divided equally - - but from this point on, he will pay child support in the amount of 21 percent after taxes of any retained earnings.
Thereafter, on April 6, 2016, the circuit court entered a divorce decree. Paragraph nine of the decree provides:
9. [Brian] shall pay [Rebecca] child support in the amount of $2,021.67 per month. In addition to the above amount, [Brian] shall pay twenty-one percent (21%) of any excess retained earnings, distributions, bonuses or other earnings not otherwise taken as salary.... In setting support, the Court has considered the income of [Brian's] business as well as [Brian's] earning potential. The Court considers this amount fair and equitable under the circumstances present although it may represent a deviation from the Arkansas Supreme Court Child Support Guidelines. A reduction will only be considered if [Brian's] income and retained earnings or other resources that may be considered as income decrease by more than ten percent (10%) and is otherwise justifiable under the circumstances. When considering an increase in support [Brian's] net income and retained earnings shall be considered.
Thereafter, Brian paid Rebecca monthly child support of $2,012.67. In mid-2017, Brian provided his 2016 tax returns to Rebecca. The returns reflected that Brian had a salary of $88,500 and retained earnings of $101,833. When Rebecca requested that Brian pay her 21 percent of the retained earnings as per paragraph nine of the decree, Brian filed a motion to modify child support. He alleged that his current child-support obligation of $2,021.67 should be increased to $2,312.77 because his 2016 net income (salary plus retained earnings) had increased. In response, Rebecca moved for contempt, arguing that the circuit court in the decree ordered Brian to pay additional child support of 21 percent of retained earnings not otherwise taken as salary, which totaled $21,384.93.
A hearing was held on Brian's motion in August 2017. Brian sought to introduce the testimony of his accountant and two documents to attempt to establish his income basis for the $2,012.67 child-support award set forth in the decree. When Brian moved to introduce this evidence, counsel for Rebecca objected. Her counsel argued that the decree had been entered in April 2016 and that any question as to the income basis for the child-support calculation in the decree should have been raised and resolved before the circuit court at that time or on appeal, but it was not. Therefore, Rebecca's counsel argued that deconstructing the child-support amount stated in the 2016 decree was irrelevant and inadmissible.
In response, Brian's counsel contended:
[T]here's no basis number-wise set forth in the - - in Paragraph 9 of the Decree, we have to come up with where that number came from. Where did the $2,012.67 come from. By establishing what his income actually was in our evidence that was already presented to the Court, we believe we can deconstruct the number and show the Court that child support was based on not only his salary but also his earning - - S Corp earnings for the 2016 decree. It was based on his 2015 income.... [The decree] is supposed to have a basis number in it. And this one does not.
Brian further stated that he did not disagree with the $2,012.67 child-support amount set forth in the decree. Rather, he was attempting to demonstrate what 2015 income the court had used to arrive at that figure so he could establish that the monthly child support of $2,012.67 included his salary and retained earnings from Newton Medical and that his 2016 income had increased.
The circuit court acknowledged that the decree was silent as to the income basis or methodology used in arriving at the court-ordered child-support amount of $2,012.67 but that there was no appeal of that finding and it was now the law of the case. Accordingly, the circuit court found that evidence concerning what income the circuit court used in 2016 to calculate the base amount of child support was irrelevant and excluded it.
Brian proffered the evidence and proceeded to introduce evidence of his 2016 income, arguing that his child-support obligation should be increased because his income (salary and retained earnings) had increased. He also contended that because the circuit court in 2016 had already applied retained earnings to his income in calculating the monthly base child support owed, it would be error to require him to pay 21 percent additional child support on the same retained earnings. Rebecca argued that she was seeking what the decree awarded her and that the circuit court in 2016 deviated from the child-support chart when it issued its decree. The circuit court took the matter under advisement.
On September 21, 2017, the circuit court entered an order denying Brian's motion to modify child support, finding that the $101,833 in retained earnings was "excess retained earnings, distributions, bonuses or other earnings not taken as salary" as stated in paragraph nine of the decree; therefore, he was required to pay Rebecca additional child support in the amount of $21,384.93 (21 percent of the retained earnings). The court also awarded Rebecca attorney's fees and costs and found Brian in contempt for failure to pay the additional child support. This appeal followed.
Brian first argues that the circuit court abused its discretion in excluding evidence of his 2015 income (testimony of his accountant and two documents) that he alleged was used by the circuit court in 2016 to calculate his base child-support obligation and that was required for him to prove a change in circumstances to support his motion to modify child support. Our standard of review for evidentiary rulings is well settled. The circuit court makes the determination as to the admissibility of testimony. Woods v. Woods , 2013 Ark. App. 448, at 3, 2013 WL 4558126. The circuit court must determine the relevancy, competency, and probative value of the testimony. Id. The admissibility of testimony is within the circuit court's discretion, and the circuit court will not be reversed absent an abuse of that discretion. Id. We hold that the circuit court abused its discretion in excluding evidence of Brian's 2015 income for three reasons.
First, the law-of-the-case doctrine does not apply. "[T]he venerable doctrine of law of the case prohibits a court from reconsidering issues of law and fact that have already been decided on appeal." Rogers v. Rogers , 90 Ark. App. 321, 328, 205 S.W.3d 856, 862 (2005) (citing Cadillac Cowboy, Inc. v. Jackson , 347 Ark. 963, 970, 69 S.W.3d 383, 388 (2002) ). The doctrine serves to effectuate efficiency and finality in the judicial process. Id. , 205 S.W.3d at 862. It provides that a decision of an appellate court establishes the law of the case for the circuit court on remand and for the appellate court itself on subsequent review. Id. at 328-29, 205 S.W.3d at 862. Because there has been no prior appeal in this case, law of the case does not apply.
Second, despite not appealing the 2016 decree, Brian is entitled to seek modification of child support because a circuit court always retains jurisdiction over child support as a matter of public policy, and no matter what an independent contract states, either party has the right to request modification of a child-support award. Martin v. Scharbor , 95 Ark. App. 52, 57, 233 S.W.3d 689, 693-94 (2006) (citing McKinney v. McKinney , 94 Ark. App. 100, 105, 226 S.W.3d 37, 41 (2006) ). The case at bar was initiated by Brian's motion to modify child support.
Third, the evidence Brian sought to introduce was relevant. Our supreme court has stated that it is axiomatic that a change in circumstances must be shown before a court can modify an order for child support. Martin , 95 Ark. App. at 54, 233 S.W.3d at 692. The party seeking modification has the burden of showing a change in circumstances. Id. , 233 S.W.3d at 692. In determining whether there has been a change in circumstances warranting adjustment in support, the circuit court should consider remarriage of the parties, a minor's reaching majority, change in the income and financial conditions of the parties, relocation, change in custody, debts of the parties, financial conditions of the parties and families, ability to meet current and future obligations, and the child-support chart. Id. at 54-55, 233 S.W.3d at 692. Further, Arkansas Code Annotated section 9-14-107 (a)(1) (Repl. 2015) provides that a change in gross income of the payor in an amount equal to or more than twenty percent or more than one hundred dollars per month shall constitute a material change of circumstances sufficient to petition the court for modification of child support according to the family-support chart after appropriate deductions.
The only way for Brian to meet his burden of proving that he is entitled to a modification of child support is to introduce evidence of a change of circumstances. In this case, that means he was required to prove that there had been a change in the income and the financial conditions of the parties. Brian must present more than the current income conditions of the parties. He must also show what 2015 income the circuit court used in 2016 to calculate child support.
This information is missing in this case. The decree does not state Brian's income or explain how the circuit court arrived at the child-support figure of $2,012.67. Brian and Rebecca both testified at the 2017 hearing that they were unsure how the circuit court arrived at the $2,012.67 child-support figure. This is the gap Brian's proffered evidence attempted to fill. This evidence was relevant and admissible, and we hold that the circuit court abused its discretion in excluding it.
An evidentiary error must be prejudicial to justify reversal. Tanner v. Tanner , 2015 Ark. App. 668, at 7, 476 S.W.3d 832, 836. Therefore, we must next determine whether the evidentiary error was prejudicial. We hold that the circuit court's error was prejudicial to Brian because without this relevant evidence, the circuit court could not properly consider his motion to modify child support.
Administrative Order No. 10 provides that
[a]ll orders granting or modifying child support (including agreed orders) shall contain the court's determination of the payor's income, recite the amount of support required under the guidelines, and recite whether the court deviated from the Family Support Chart. If the order varies from the guidelines, it shall include a justification of why the order varies as may be permitted under Section V hereinafter. It shall be sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to the Family Support Chart is correct, if the court enters in the case a specific written finding within the Order that the amount so calculated, after consideration of all relevant factors, including the best interests of the child, is unjust or inappropriate.
Ark. Sup. Ct. Admin. Order No. 10(I) (2017); see also Ark. Code Ann. § 9-12-312(a)(3)(A)-(C). It is the ultimate task of the circuit court to determine the expendable income of a child-support payor. Martin , 95 Ark. App. at 55, 233 S.W.3d at 692.
The circuit court in the case at bar was tasked with the responsibility of determining Brian's expendable income in 2015 and 2016 in order to determine whether there had been a change in circumstances sufficient to warrant a modification of child support. The order from which Brian appeals fails to comply with Administrative Order No. 10 and section 9-12-312(a)(3) in that it does not contain the court's determination of Brian's 2015 income; it does not recite the amount of support required under the guidelines; it does not recite whether the court deviated from the Family Support Chart; and if it does vary from the guidelines, it does not include a justification of why the order varies. In failing to admit the relevant evidence on this issue, the circuit court failed to make these determinations, which resulted in prejudice to Brian.
Accordingly, we reverse and remand the circuit court's order denying Brian's motion to modify child support. On remand, we instruct the circuit court to consider Brian's motion using the guidelines set forth in Administrative Order No. 10 and section 9-12-312(a)(3)(A)-(C).
Reversed and remanded.
Virden and Gladwin, JJ., agree.
This hearing was held before a different circuit court judge.
The two documents are his 2015 income summary and his 2015 W-2 from Newton Medical.
According to Brian, his accountant's testimony, coupled with his 2015 income documents, illustrates that his salary plus retained earnings (less appropriate deductions) equals a net income that, when applied to the child-support chart, results in a child-support amount of $2,164.93, which is very close to the $2,012.67 base child-support figure stated in the decree.
Instead of considering Brian's motion to modify child support in light of Administrative Order No. 10 and section 9-12-312(a)(3), the circuit court incorrectly framed the issue before it as the interpretation and application of paragraph nine of the divorce decree, and all of the findings in the circuit court's order address this issue.
Based on our holding on Brian's first point on appeal, we need not address his second point on appeal-that the circuit court clearly erred in finding that the decree required him to pay Rebecca additional child support in the amount of 21 percent of retained earnings. | [
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KAREN R. BAKER, Associate Justice
Petitioner Jessie Buchanan brings this petition to reinvest jurisdiction in the trial court to file a petition for writ of error coram nobis in his criminal case. It is the second such petition filed by Buchanan. The first petition was brought before this court in 2010 and denied. Buchanan v. State , 2010 Ark. 285, 2010 WL 2210923 (per curiam).
In the petition now before us, Buchanan contends that the State violated Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose to the defense a serology report and the victim's death certificate. Because Buchanan's claims do not establish a ground for the writ, the petition is denied. The motion for appointment of counsel is rendered moot by the denial of the petition.
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 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. Newman, supra. 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. Howard v. State , 2012 Ark. 177, 403 S.W.3d 38. 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. Id.
III. Background
In 1992, a jury found Buchanan guilty of capital murder in the shooting death of Alfred Tobar during an argument at Buchanan's home. Buchanan was sentenced to a term of life imprisonment without parole. We affirmed. Buchanan v. State , 315 Ark. 227, 866 S.W.2d 395 (1993). At his trial, Buchanan testified that he shot at Tobar while in fear for himself, his fiancée, and their two children when Tobar advanced toward him. Evidence was adduced that Tobar was shot five times, twice from the front and three times from the back, with a .22-caliber semiautomatic rifle with a sawed-off stock that required someone to pull the trigger each time a shot was fired. Buchanan testified that he blacked out after the first shot was fired and that he did not intend to kill Tobar. On direct appeal, this court found the jury's decision that Buchanan intended to cause the death of Tobar was supported by the evidence.
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) the 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 first Brady violation alleged by Buchanan pertains to a serology report prepared in 1992. The report stated that Tobar's blood type was "O." Buchanan states that in the autopsy report dated one day before the serology report, Tobar's blood type was given as type "AB, Rh Positive." He asserts that the discrepancy indicates that either the crime laboratory or the medical examiner mixed up the blood samples, the samples were contaminated, the samples were lost, or the samples were fabricated. Buchanan argues that the State never proved who had died and that there was no testimony at trial to confirm that it was Tobar who had died. As support for the claims, Buchanan notes that Tobar's death certificate reflects that Tobar's body was disposed of by means of burial on January 16, 1991, which was one year before Tobar was alleged to have been killed by Buchanan on January 10, 1992. Buchanan contends that if he had that information from the original death certificate, which he did not obtain until November 2017, he could have shown at trial that he was actually innocent of killing Tobar. Buchanan did not deny at trial that he killed Tobar, and there was no contention at trial that it was not Tobar who had died. Even if there was an error as to Tobar's blood type and his date of burial, Buchanan has made no showing that the State withheld any exculpatory evidence from the defense in violation of Brady that prejudiced the defense as it was presented at Buchanan's trial.
Considering Buchanan's admission at trial that he shot Tobar, it appears that the crux of his claim of a Brady violation is not that the State withheld evidence that would have created a reasonable probability that the outcome of the trial would have been different--even though he conceded that he had shot the victim--but rather that he perjured himself at trial. That is, he might have asserted a different defense had he known that there was a discrepancy in the reports pertaining to the victim's blood type and the date of his burial. If that is his contention, Buchanan has not met the criteria for issuance of the writ because the allegations in a coram nobis petition must pertain to the trial in which the petitioner was convicted of the offense. Buchanan offered nothing to show that the State concealed any fact from the defense that affected Buchanan's core argument at trial that he acted in self-defense and did not intend to kill Tobar. The fact that Buchanan might have pursued an alternative defense in which he contended that he did not, in fact, kill Tobar had he known of errors in the medical report and the death certificate does not establish that a Brady violation occurred in his trial.
As stated, Buchanan also argues that the State did not present credible scientific evidence at trial that Tobar was actually dead. If it is Buchanan's intention to demonstrate that errors in the documentary evidence and the death certificate rendered the evidence adduced at his trial insufficient to prove that he was guilty, a challenge to the sufficiency of the evidence constitutes a direct attack on the judgment and is not cognizable in a coram nobis proceeding. Grady v. State , 2017 Ark. 245, 525 S.W.3d 1. Allegations that the evidence presented at trial was not sufficient to support a finding of the defendant's guilt are issues to be addressed at trial and, when appropriate, on the record on direct appeal. Jackson v. State , 2017 Ark. 195, 520 S.W.3d 242.
Petition denied; motion moot.
Buchanan's first petition to reinvest jurisdiction in the trial court to consider a coram nobis petition also concerned the scientific evidence adduced at trial. He alleged that the prosecutor violated Brady by deliberately not releasing to the defense the entire medical examiner's file, which Buchanan said he did not receive until March 2009. He further alleged that the state crime laboratory made the medical examiner's file available to the prosecution, including the victim's death certificate and the coroner's report, but never disclosed the file to the defense in the discovery process. He contended that upon examining the death certificate, he had discovered that it lacked the signature of the doctor who performed the postmortem examination and that the coroner's report also was unsigned. He asserted that the death certificate and report were "essential and favorable" and could have been used to impeach the State's witnesses and undermine the testimony of the medical examiner and that no medical examiner, coroner, or qualified physician testified at trial about the cause of the victim's death; nor was there testimony about the coroner's report. He contended that there was a reasonable probability that the outcome of the trial would have been different had the defense been given access to the death certificate and coroner's report, a claim rejected by this court. Buchanan , 2010 Ark. 285. | [
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KENNETH S. HIXSON, Judge
The appellant, Christopher Lee Paschall, has two minor children. The appellant murdered his children's mother, Casey Brace, and also murdered his children's maternal great-grandfather. This appeal stems from a guardianship case involving appellant's minor children after he was arrested and subsequently convicted of the murders. Appellant was incarcerated throughout the guardianship proceedings. After a series of other temporary placements, the Washington County Circuit Court granted permanent guardianship of the minor children to appellant's brother and his wife. Appellant disagreed with the circuit court's decision and appeals. We affirm.
I. Factual Summary
Appellant murdered his children's mother and their great-grandfather. On January 26, 2015, while appellant was incarcerated, John and Mary Paschall, appellant's parents, filed a petition for appointment of guardian of the person and for ex parte emergency guardianship. In their petition, the Paschalls alleged that appellant had been incarcerated and that appellant's minor children needed a guardian. They further alleged that the children were currently in the custody of Cathy Townsend, the children's maternal grandmother, who resided in Washburn, Missouri. Before their mother's death, the children had resided in Arkansas. The Paschalls also alleged that it was not in the children's best interest to remain in Cathy's care and custody in Missouri and that they had spent a considerable amount of time helping to raise the children.
A week later, on February 3, 2015, appellant, while incarcerated, filed a notarized waiver and consent in response to John and Mary Paschall's petition for appointment of guardian. Appellant alleged that he is the children's father and that he waived his time to file an answer, the formal statutory-notice requirements for all proceedings, and his appearance at such proceedings. Appellant further stated that he consented to the circuit court's appointment of John and Mary Paschall as his children's guardians. The circuit court thereafter appointed the Paschalls as temporary guardians.
A few days later, Amber Trammell, the children's maternal aunt, (sister of the children's murdered mother) and Cathy Townsend, the maternal grandmother, filed a motion and an amended motion to intervene and to set aside the order of temporary guardianship. Amber and Cathy alleged that they had already been issued letters of guardianship in Missouri. Thereafter, John and Mary Paschall, Amber Trammell, and Cathy Townsend reached a temporary settlement agreement, and the Washington County Circuit Court filed an agreed order. The circuit court ruled that Arkansas had jurisdiction pursuant to the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), codified at Arkansas Code Annotated sections 9-19-101 to -401. The parties agreed that John and Mary Paschall should continue their appointment as temporary guardians. Amber and Cathy were granted the right to intervene, and their motion and amended motion to set aside the order of temporary guardianship was dismissed. The parties additionally agreed that Amber and Cathy were entitled to visitation with the children and that the attorney ad litem for the children would set up counseling.
Shortly after Amber Trammell was granted the right to intervene, Amber filed her own motion with the circuit court to be appointed as the children's guardian. On April 24, 2015, appellant filed a pro se response to Amber Trammell's petition titled "Motion to Terminate Supervised Visitation, Petition for Restraining Order, Motion for Full Custody, & Motion to Dismiss Defendant's Filing for Co-Guardianship." In his response, appellant stated that he had signed over all rights concerning the minor children to his parents, John and Mary Paschall. He further alleged that Cathy Townsend was a drug dealer and violent and that Amber's husband, Justin, had killed his own father. Appellant prayed that the circuit court would "deem fit to terminate" any visitation given to Cathy Townsend; issue restraining orders against Cathy, Amber, and Justin; dismiss Amber's petition for guardianship; and grant John and Mary Paschall full custody.
After a trial, the circuit court filed an order appointing John and Mary Paschall as permanent guardians of the children. Amber Trammell was granted visitation. Additionally, Jeremy Paschall, appellant's brother and the children's paternal uncle, was granted visitation. The circuit court further ordered that there be no contact between appellant and the children until the children's counselor advised otherwise and all the parties agreed. If the parties could not reach an agreement, communication would not be allowed without a court order.
Less than a year later, on September 14, 2016, the children's attorney ad litem, Hadley M. Hindmarsh, filed an emergency motion for emergency substitution of guardians. The attorney ad litem alleged that Mary Paschall had allowed the children to have extensive telephone communication with appellant and that appellant had been "exerting a substantial and highly concerning level of control over the actions of the Guardian, Mary Paschall, concerning the minor children, the guardianship case, the children's counseling and other matters related to Christopher Paschall's numerous pending criminal cases." Therefore, based on over forty telephone recordings, the attorney ad litem stated she had serious concerns regarding the well-being and safety of the minor children in Mary and John Paschall's care and requested that the children be removed. She recommended that Jeremy and his wife, Crystal Paschall, the children's paternal uncle and aunt, be appointed as temporary or permanent guardians.
The participating parties, including John and Mary Paschall, Jeremy and Crystal Paschall, Amber Trammell, and the attorney ad litem, reached a temporary settlement agreement and agreed to allow Jeremy and Crystal Paschall to be appointed temporary guardians. Visitation with John and Mary Paschall and Amber Trammell was permitted but at the sole discretion of Jeremy and Crystal Paschall. The same parties later reached a final settlement agreement regarding all pending matters, and the circuit court adopted the agreement in a final order filed on January 31, 2017. Jeremy and Crystal Paschall were appointed as permanent guardians of the children. The order additionally addressed and set out the visitation restrictions agreed to by the parties.
About three months later, appellant, who is now represented by counsel, filed in May 2017 a pro se "Objection and Motion to Set Aside Final Order filed January 31, 2017, for Dismissal of the Emergency Temporary Guardianship and for Return of Guardianship of the Minor Children to John and Mary Paschall." In his motion, appellant acknowledged that he had signed a waiver of notice and consent to the guardianship in 2015; however, he alleged that his April 2015 pro se response to Amber Trammell's petition for guardianship "effectively terminated his previously filed Waiver and Consent." Appellant further alleged that even if the April 2015 response did not terminate his waiver and consent, his "[w]aiver was tied to his consent to John and Mary Paschall as guardians and [appellant] did not waive notice of any pleadings challenging John and Mary Paschall as the guardians." Mary Paschall thereafter filed a response that she had no objection to appellant's motion and that she was ready to resume her duties as guardian if the circuit court found the January 31, 2017 final order void.
A hearing was held on appellant's motion in which he reiterated his arguments. Jeremy and Crystal Paschall, Amber Trammell, and the attorney ad litem argued that appellant's arguments lacked merit and should be denied. Afterwards, the circuit court filed an order denying and dismissing appellant's motion on November 3, 2017. In its order, the circuit court made the following relevant findings:
2. The Court finds that Christopher Paschall filed a Waiver of Service of Process on February 3, 2015 which waived his time to answer the pleadings filed, waived his entitlement to formal statutory notice requirements for all proceedings and his appearance at such proceedings. In the same document, Christopher Paschall further consented to the appointment of John and Mary Paschall as guardians of the minor children.
3. That at no time prior to the filing of his Motion on May 23, 2017 did Christopher Paschall withdraw his previously executed Waiver nor did he file any pleading with this Court requesting that he be provided notice of all proceedings conducted in this matter. Further the Court finds Christopher Paschall's hand-written filing entered on April 24, 2015 was solely related to his objection to visitation occurring between the minor children and Cathy Townsend and other members of the children's extended maternal family.
4. The Court further finds that on November 16, 2016 all parties participating in this matter agreed to the entry of the January 31, 2017 order awarding Jeremy and Crystal Paschall permanent guardianship of the minor children in this matter.
5. Further, from the evidence adduced in this matter, including statements of Christopher Paschall's attorney, that Christopher Paschall was recently convicted of murdering the biological mother and great grandfather of the minor children who are the subject of this guardianship.
6. The Court finds that pursuant to the Waiver filed on February 3, 2015 Christopher Paschall was not entitled to notice of the proceedings in this matter thereafter; accordingly, the Court finds the Objection and Motion to Set Aside Final Order filed herein by Christopher Paschall on May 23, 2017, should be, and hereby is, dismissed and denied.
(Emphasis added.) This appeal followed.
II. Standard of Review
Guardianships are special proceedings that are governed by statute. Morris v. Clark , 2018 Ark. App. 73, 542 S.W.3d 191. We review probate proceedings de novo, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Donley v. Donley , 2016 Ark. 243, 493 S.W.3d 762. 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 proceedings, we give due regard to the opportunity and superior position of the circuit court to determine the credibility of the witnesses. Id.
III. Whether Appellant's Waiver of Notice Applied to All Future Proceedings
Appellant first argues that the circuit court erred in ruling that the waiver of notice he executed and filed in February 2015 applied to all future guardianship proceedings. Appellant argues in his brief that the intention of his notarized waiver and consent was to waive the time to file an answer and the notice requirements for "all proceedings necessary to carry out his consent to have Mary and John Paschall appointed as guardians." He further claims that he did not intend to waive notice and consent to any other parties being appointed as guardian. Appellant claims that because he was not notified in September 2016 when the attorney ad litem moved to terminate John and Mary Paschall as guardians and to substitute Jeremy and Crystal Paschall, the circuit court's orders "should be voided." We disagree.
The standard definition of "waiver" is the voluntary abandonment or surrender by a capable person of a right known by that person to exist, with the intent that he or she will forever be deprived of its benefits. Fewell v. Pickens , 344 Ark. 368, 39 S.W.3d 447 (2001). It is our duty to enforce contracts as they are written and in accordance with the ordinary meaning of the language used and the overall intent and purpose of the parties. Fry v. Fry , 2015 Ark. App. 339, 463 S.W.3d 738. Waiver is ordinarily a question of fact, and we do not reverse the circuit court's finding of fact unless it is clearly erroneous. Academy, Inc. v. Paradigm Building, LLC , 2017 Ark. App. 79, 513 S.W.3d 850 ; Travelers Cas. & Surety Co. of Am. v. Cummins Mid-South, LLC , 2015 Ark. App. 229, 460 S.W.3d 308.
A competent person in the person's own behalf or by his or her attorney may execute a waiver of notice to one or more hearings in a particular probate proceeding, and the statute specifically states that notice of the hearing for the appointment of a guardian need not be given to any person who has waived notice of the hearing in writing. Ark. Code Ann. §§ 28-1-113(c) and 28-65-207(a)(2). Additionally, although a petitioner is required to serve notice to a parent of a minor child of any temporary-guardianship order, notice need not be given to any person who has in writing waived notice of the hearing. Ark. Code Ann. §§ 28-65-218(b), (e) & 28-65-207(a)(2).
Here, on February 3, 2015, appellant filed the following written, notarized waiver with the circuit court:
I, Christopher Lee Paschall, am the father of the proposed wards, waive my time to answer and the formal statutory notice requirements for all proceedings , my appearance thereof, and I consent to the Court appointing John and Mary Paschall as the guardians of my children[.]
(Emphasis added.) The circuit court found that appellant's waiver of notice as written applied to "all proceedings" and that appellant did not intend it to be limited to only proceedings that involved the appointment of John and Mary Paschall as he contends. Although appellant could have limited under the statute his waiver to notice for specific hearings, he failed to do so. The clear and unambiguous language used by appellant in his waiver and consent is that he waived notice to "all proceedings" without any limitations. Under these particular circumstances, we cannot say that the circuit court's findings were clearly erroneous, and we affirm.
IV. Whether Appellant Revoked His Waiver of Notice
Appellant additionally argues that even if his waiver of notice applied to all future guardianship proceedings, the circuit court erred in ruling that he did not revoke his waiver of notice. Appellant specifically argues that his "Motion to Terminate Supervised Visitation, Petition for Restraining Order, Motion for Full Custody, & Motion to Dismiss Defendant's Filing for Co-Guardianship" filed on April 24, 2015, in response to Amber Trammell's petition for guardianship, made his intention clear, even though he admits not explicitly, to revoke his waiver of notice when he expressed his disapproval of Amber being appointed as guardian of his children. We disagree.
Appellant cites Hood v. Hood , 2016 Ark. App. 266, 493 S.W.3d 779, as support for his arguments; however, appellant's reliance is misplaced. Hood involved the issue of a parent's consent and a fit parent's right to terminate a guardianship when it is no longer necessary. The circuit court there had granted the grandparents' petition for emergency guardianship. Id. A hearing was scheduled, but the mother later agreed to an order of continuance. Id. Several months later, the mother filed a motion to set aside and terminate the emergency temporary guardianship and return custody of the children to her. Id. The circuit court denied the motion, and the mother timely appealed. Id. We reversed for two reasons. Id. First, we held that the circuit court erred in continuing the emergency temporary guardianship indefinitely in contravention of the statute. Id. Second, even if it could be said that the mother consented to the continuation, she withdrew her consent to the continuance when she sought to terminate the emergency temporary guardianship and have the children returned to her custody. Id.
Those are simply not the facts here. Appellant's April 2015 response did not seek to terminate his consent to the guardianship and return custody to him, as in Hood ; nor did it state anything to indicate that he was revoking or withdrawing his waiver of notice, which is the issue before us. In fact, appellant could not regain custody of the children due to his incarceration.
Here, the circuit court specifically found that appellant failed to either revoke or withdraw his written waiver of notice, and we cannot say that the circuit court's findings were clearly erroneous under these circumstances. In his April 2015 response, appellant reiterated that he had signed over all rights concerning his children and that he objected to the children having any contact with members of their maternal family. He further requested that John and Mary Paschall be granted permanent guardianship, which the circuit court did initially until the attorney ad litem filed a motion for emergency substitution of guardians based on Mary's noncompliance. Thereafter, the participating parties, including Mary Paschall, reached a settlement agreement that Jeremy and Crystal should serve as substituted permanent guardians.
Appellant's April 2015 response never mentioned any objection or indication that he was revoking or withdrawing his waiver of notice in the event Mary Paschall eventually agreed that Jeremy and Crystal Paschall should be substituted as guardians. Additionally, pursuant to Arkansas Code Annotated section 28-65-209, appellant could have at any time requested written notice of any hearings, including any hearings on petitions for the removal, suspension, or discharge of the guardian; however, he failed to do so. Thus, on these facts, we affirm.
Affirmed.
Klappenbach and Whiteaker, JJ., agree.
Jeremy Paschall had already been awarded visitation rights over the minor children in a previous order of the court.
Appellant Christopher Paschall was not given notice of the emergency hearing and did not participate in the settlement agreement. | [
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LARRY D. VAUGHT, Judge
Micah Kenton Krol appeals his conviction by a Washington County Circuit Court jury of three counts of sexual indecency with a child, a Class D felony, in violation of Arkansas Code Annotated section 5-14-110(a)(2)(A) (Repl. 2013). On appeal, Krol argues that there was insufficient evidence to support his conviction because the statute should be interpreted as requiring proof that the child consciously observed the indecent exposure of the defendant's genitals. He also argues that his conviction violates the Arkansas and federal constitutions' protections against double jeopardy. We disagree with his arguments and affirm his conviction.
At trial, Austin Lewallen testified that he was working at the Walmart store in Springdale, Arkansas, on February 2, 2016. Lewallen was an asset-protection associate, and he testified that he watched Krol on the store's surveillance cameras walk up behind two young children who were alone in an aisle and lift up his shirt, exposing his penis. Krol then walked to another aisle where one child was present and again lifted his shirt and exposed his penis while standing behind the child. Lewallen testified that no one ever reported the incident to the store. Lewallen also testified that, shortly after exposing himself, Krol left the store without purchasing anything, and Lewallen used the surveillance cameras in the parking lot to obtain his license-plate number. Lewallen's coworker reported the incident to police, who later identified and arrested Krol.
Tommy Wooten testified that he is a detective for the Springdale Police Department. He stated that no one made any report to the Springdale Police Department that they or their children had seen a man expose himself at the Walmart store. The children in the video were never identified and had not been interviewed as a part of the investigation. Wooten stated that he could not tell, from the video, whether the children had seen Krol's exposed genitals. The surveillance video was introduced into evidence and played for the jury several times.
Before trial, Krol filed a memorandum of law arguing the case should be dismissed because there was no evidence that the children actually saw him expose his genitals. The State responded that our statute contains no requirement that the child view or witness the exposure, only that it be made "to" a child. The court set a pretrial hearing on the issue, but that hearing was later continued, and the record does not reflect that it ever occurred.
Krol did not obtain a pretrial ruling on whether the statute requires proof that the exposure was viewed by the child.
At trial, the issue arose when Krol's counsel objected to Detective Wooten's testimony, given while watching the surveillance video, that "[h]e is exposing himself to those children." Krol's counsel argued, among other things, that the witness was "trying to suggest that this is what the jury instruction says - what the law says" and "that's a mischaracterization of the law in this case." The State responded that "that is the law in this case. That's how the statute reads." (Emphasis added.) The court ruled that "the line of questioning is going to the fact that Mr. Krol exposed his penis to these children as opposed to adults who were in the store as well," concluding that the detective could testify to what he saw on the screen and that Krol could cross-examine him on it.
The issue of what exposure "to" a child means under the statute came up again when the State asked Detective Wooten whether, based on his "common experience" and based on the angle of the child's head in the video, it was possible that the child could have noticed Krol out of her peripheral vision, turned to the left, and seen his exposed penis. Krol's counsel objected to the question as calling for speculation, and the court sustained the objection, explaining, "I believe this is something that the jurors are going to have to use their common sense to determine." Detective Wooten ultimately testified that he did not know if the children had seen Krol's exposed genitals, and no witness testified that the children either had or had not seen the exposure.
After the State rested, Krol moved for directed verdict, which incorporated his memorandum of law, arguing that the statute required proof, as an essential element of the crime, that the child view the exposure. He argued that the State had failed to introduce sufficient proof on that element and that the charges should therefore be dismissed. He also argued that, if conscious observation on the part of the child victim was not an element, the court should dismiss one of the three counts of sexual indecency with a child, since Krol had lifted his shirt only twice to expose his genitals. The State argued that the statute does not contain an element requiring proof that the exposure be witnessed or viewed, that the focus of the statute was on the defendant's conduct not the child's awareness, and that three counts were appropriate because Krol had intentionally exposed his genitals to three children.
In arguing the motion for directed verdict, both sides cited numerous cases from both Arkansas and other jurisdictions to support their interpretation of the statute, and they often relied on the same cases, reaching different understandings of the fundamental holdings of those cases. For example, both sides heavily relied on Malvin v. State , 2014 Ark. App. 584, 446 S.W.3d 208, in which we affirmed a conviction for sexual indecency with a child based on the defendant's sending of a photo of his penis to a child via electronic communication. The State argued that Malvin defines "expose" as "laying open to view," which the State argued hinges only on the defendant's conduct and does not contain an awareness element on the part of the victim. The defense argued that Malvin hinged on the fact that the child actually saw the defendant's genitals in the photo just as she would have seen if he had exposed himself in person. The circuit court ruled that it had read the relevant cases and was most persuaded by Malvin v. State and quoted a portion of the Malvin opinion in which we stated that "expose is defined as laying open to view.... His penis is what he exposed to [T.H.]. A photograph was simply the manner he selected for her to view it." The court then restated the elements of the crime, but regarding the element that the exposure be made "to" a child, the court did not clarify whether Malvin required proof that the child actually viewed the exposure. The court concluded by saying "[T]he State has made a prima facia case, that raises issues of fact for the jury to consider, as to all elements of the charged offense and the motion for directed verdict is denied." At the close of all evidence, Krol renewed his motion, which was again denied.
Krol also submitted proposed jury instructions that included, as a necessary element of the crime, a finding that the child viewed his exposed genitals. The court rejected his proposed jury instructions and instead gave the model version of those instructions, as advocated for by the State, which simply tracked the language of the statute, requiring the jury to determine whether Krol had exposed himself "to" a person less than fifteen years of age. Krol proffered his proposed jury instructions to the court. The jury convicted Krol of three counts of sexual indecency with a child, and this appeal follows. On appeal, Krol has challenged only the denial of his motion for directed verdict.
This court reviews a motion for a directed verdict as a challenge to the sufficiency of the evidence and will affirm the circuit court's denial of a motion for directed verdict if there is substantial evidence, either direct or circumstantial, to support the jury's verdict. Williamson v. State , 2009 Ark. 568, at 3-4, 350 S.W.3d 787, 789 (citing Flowers v. State , 373 Ark. 127, 282 S.W.3d 767 (2008) ). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. , at 3-4, 350 S.W.3d at 789. In reviewing the sufficiency of the evidence, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the State, without weighing it against conflicting evidence that may be favorable to the appellant, and affirm the verdict if it is supported by substantial evidence. Id.
Although sufficiency-of-the-evidence cases are generally reviewed under the substantial-evidence standard, de novo review applies to questions of statutory construction. E.g. , State v. Colvin , 2013 Ark. 203, at 6, 427 S.W.3d 635, 640. In interpreting a statute, the court is to give effect to the intent of the legislature. Id. We therefore construe the statute just as it reads, giving its words their "ordinary and usually accepted meaning in common language," resorting to rules of statutory interpretation only when the language is ambiguous or unclear. E.g. , Short v. State , 349 Ark. 492, 495, 79 S.W.3d 313, 315 (2002). Additionally, statutes are construed so that no word is left void, superfluous, or insignificant, and meaning and effect are given to every word in the statute, if possible. E.g. , First Ark. Bail Bonds, Inc. v. State , 373 Ark. 463, 465, 284 S.W.3d 525, 527 (2008). "When a statute is clear ... it is given its plain meaning," and the legislative intent "must be gathered from the plain meaning of the language used." Magness v. State , 2012 Ark. 16, at 3-4, 386 S.W.3d 390, 393.
Pursuant to the rule of lenity, "penal statutes are to be strictly construed, and all doubts are to be resolved in favor of the defendant." Colvin , 2013 Ark. 203, at 6, 427 S.W.3d at 640. It is well settled, however, that the rule of lenity applies only when the statute in question is ambiguous; the rule cannot be used to alter the plain meaning of a statute and is inapplicable when it would lead to an absurd result. Id. at 6, 9, 427 S.W.3d at 640-41 ; see also, e.g., Robers v. United States , 572 U.S. 639, 134 S.Ct. 1854, 1859, 188 L.Ed.2d 885 (2014) ("[T]he rule of lenity applies only if, after using the usual tools of statutory construction, we are left with a grievous ambiguity or uncertainty in the statute.").
Pursuant to Arkansas Code Annotated section 5-14-110(a)(2)(A), a person commits the offense of sexual indecency with a child if, "[w]ith 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." Krol raises two arguments challenging the circuit court's denial of his motion for directed verdict. He argues that the circuit court applied an incorrect interpretation of Arkansas Code Annotated section 5-4-110(a)(2)(A) when it denied his motion and urges us to adopt an interpretation of the statute that requires proof that the child victim consciously observed the exposure of the defendant's genitals. We decline to do so because the plain language of the statute does not contain any explicit requirement that the child observe the act. This is in contrast to other criminal statutes that contain an awareness element, such as Arkansas Code Annotated section 5-14-112(a)(2), which states that "[a] person commits indecent exposure if, with the purpose to arouse or gratify a sexual desire of himself or herself or of any other person, the person exposes his or her sex organs ... [u]nder circumstances in which the person knows the conduct is likely to cause affront or alarm." We have repeatedly rejected reading additional requirements into a statute that were not placed there by the legislature. Heape v. State , 87 Ark. App. 370, 374-77, 192 S.W.3d 281, 284-86 (2004) (rejecting, based on the plain meaning of the word "solicit" in subsection (a)(1), Heape's argument that the victim must be shown to have believed the sexual solicitation was genuine and not a mere "rhetorical question"); Renderos v. State , 92 Ark. App. 293, 293-95, 213 S.W.3d 37, 38-39 (2005) (rejecting Renderos's argument "that the statute should be read ... as to require that inducement be expressed verbally where there is evidence of unambiguous nonverbal inducement").
Both the parties and the circuit court relied on Malvin v. State , which we agree is the most informative case on this issue. In Malvin , we said that " '[e]xpose' is defined as laying open to view." Krol focuses his reliance on Malvin on the following language from the opinion: "the manner in which T.H. viewed the exposure does not take appellant's conduct outside of that prohibited by the statute.... [W]hat she saw was no different than what she would have seen had appellant pulled down his pants while standing in front of her." Malvin , 2014 Ark. App. 584, at 4, 446 S.W.3d at 210. Both Krol and the State agree that the court in Malvin was interpreting the statute's use of the word "expose," and that Malvin did not address the meaning of the subsequent phrase "to another person who is less than fifteen (15) years of age." Even so, we find Malvin 's definition of "expose" helpful in determining the issue currently before us. By substituting Malvin 's definition of "expose" for the language in the statute, it reads in relevant part "lay open to view to another person who is less than fifteen (15) years of age." On its face, that reading makes clear that the legislature's intent was to focus on the conduct of the defendant in laying his genitals open to view by children. The plain language of the statute also perfectly captures the nature of Krol's actions as seen in the surveillance video that was introduced at trial.
We agree with the State's argument, made both at trial and on appeal, that the statute is aimed not at preventing children from viewing a penis but at apprehending predatory individuals who would seek out children for sexual gratification. To bolster this argument, the State cites the emergency clause to the 2016 amendment to Arkansas Code Annotated section 5-14-112(a)(2), which cites the urgent need for "protection of our children from sexual predators" and does not include any specific language about children viewing sex organs or sexually explicit material. See Act of May 23, 2016, No. 19, 2016 Arkansas Acts 448. Our interpretation of the statutory language in Malvin and our affirmation of the circuit court's ruling in the present case are in keeping with that goal.
While we note that Krol has relied heavily on out-of-state cases to support his argument that the statute should be read as requiring proof that the child witnessed the exposure of his genitals, we find those cases unpersuasive. Most of the cases he cites interpret state-specific statutory language that is different from our own. Moreover, when the statutory language at issue is the same, Krol's citation to such cases demonstrates that there is a split of authority as to whether such language requires proof that the child victim witnessed the exposure.
But even if we agreed with Krol's interpretation of Arkansas Code Annotated section 5-14-112(a)(2), his argument on appeal would nevertheless fail to warrant reversal because he cannot demonstrate prejudice related to the court's interpretation of the statute in its denial of his motion for directed verdict, which is the only decision he is challenging on appeal. First, we note that the denial of Krol's motion for directed verdict was not, as Krol argues, clearly and unambiguously based on the court's interpretation of the statute. Instead, it was based, at least in part, on the court's determination that the evidence presented by the State created a question of fact for the jury to decide. The court's ruling did not specify whether it was adopting Krol's or the State's preferred interpretation of the statute. It simply cited Malvin (a case on which both sides relied), restated that language of the elements as written in the statute without defining whether the word "to" required proof that the child saw the defendant's exposed genitals, and concluded that the State had made a prima facia case that presented a question of fact for the jury to decide. This ruling would have been correct under Krol's interpretation of the statute because there would still have been a question of fact as to whether the children in the video actually saw Krol expose his genitals. No witness testified conclusively on this point, and the jury would have been free to utilize its own judgment in watching the surveillance video to determine that fact.
Krol's second argument on appeal is that if the statute does not require proof that the child actually viewed the exposure of his genitals, it was improper to charge him with three offenses rather than two. While he exposed himself to three children, he only lifted his shirt and revealed his genitals twice. He claims that under the State's interpretation of the statute, his acts constitute only two instances of exposure, not three. To the extent that Krol argues that denial of his request to dismiss one count is a sufficiency issue, we see no error in affirming based on the interpretation of the statute discussed above, which prohibits a person from "laying [his genitals] open to view" "to another person less than fifteen (15) years of age." While Krol lifted his shirt twice, he laid his sex organs open to view to three children. As such, we affirm.
Alternatively, to the extent that he frames this issue as a double-jeopardy violation, it is unpreserved and was made prematurely. Krol raised this argument, very briefly, at the end of his motion for directed verdict, simply stating that if the court agreed with the State and found that no awareness element was required on the part of the child, "why did they charge three? Should it not have just been two?" He did not argue that charging three counts violated his right to be free from double jeopardy. Moreover, a defendant "cannot object to a double-jeopardy violation until he has actually been convicted of the multiple offenses, because it is not a violation of double jeopardy ... for the State to charge and prosecute on multiple and overlapping charges." Brown v. State , 347 Ark. 308, 317, 65 S.W.3d 394, 400 (2001). Krol raised no double-jeopardy argument after he was convicted.
Affirmed.
Virden and Gladwin, JJ., agree.
During cross-examination, Krol's counsel asked Detective Wooten if, when they previously talked, Detective Wooten had said, "It doesn't appear that the kid saw anything." Detective Wooten disagreed, stating that he did not recall saying that. Instead, he said that "I don't think any of us can say whether or not they did or didn't, but all we know is that they left from the area."
His second point, addressed later in this opinion, argues that it was error for the court to deny his request to dismiss one of the charges based on his argument that he committed two, not three, separate acts of exposure.
For example, State v. Stevenson, 656 N.W.2d 235, 239 (Minn. 2003) ; Clemens v. State , 318 Ga.App. 16, 733 S.E.2d 67, 70-71 (2012) ; and State v. Bryan, 281 Kan. 157, 130 P.3d 85, 91-92 (2006) all interpret statutes that use "in the presence of" language that is not akin to the "to" language in the Arkansas statute.
Moreover, we note that many of the statutes Krol cites as using similar "to" language actually have an additional subsection, not present in Arkansas law, requiring awareness on the part of the child. See, e.g. , State v. Jeffrey , 400 S.W.3d 303 (Mo. 2013) (interpreting Mo. Ann. Stat. § 566.083 ).
As a result, it appears that Krol did not obtain a ruling from the circuit court on the ultimate legal issue he now raises on appeal until much later in the trial when the circuit court rejected his proposed jury instructions listing observation of the genitals by the child as an essential element of the offense. While he proffered these instructions, he has not alleged on appeal that the court's denial of his proposed instructions was error. Krol therefore waived any challenge to the denial of his proposed jury instructions, which is the only instance in the record before us where the circuit court made a clear ruling as to the statutory-interpretation argument. Hill v. State , 278 Ark. 194, 201, 644 S.W.2d 282, 285 (1983). Because the denial of a motion for directed verdict is a challenge to the sufficiency of the evidence, it does not present us with the same underlying legal question as would be before us had Krol appealed the denial of his proposed jury instructions. Moreover, it is difficult to determine the prejudice Krol suffered from the court's denial of his motion for directed verdict when he does not claim any harm from the jury's ultimate use of that interpretation in deciding his guilt. | [
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JOHN DAN KEMP, Chief Justice
Appellant Kenneth Isom appeals an order of the Drew County Circuit Court dismissing his petition for writ of error coram nobis. For reversal, Isom contends that the circuit court abused its discretion in (1) dismissing the petition because the State suppressed evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ; (2) limiting discovery for the evidentiary hearing; and (3) denying his motion for judicial recusal. We affirm.
I. Factual & Procedural Background
On the evening of Monday, April 2, 2001, at approximately 7:45 p.m., a man knocked on the door of William "Bill" Burton's trailer home in Monticello, Arkansas. Burton was a seventy-nine-year-old man in the care of his sister-in-law, seventy-one-year-old Dorothy Lawson. Lawson answered the door, and the man pushed his way inside and demanded money. Wielding a pair of broken scissors, the man ordered Burton and Lawson to lie on the floor of the trailer. Burton was stabbed and bludgeoned. Lawson was raped, choked, and beaten. Burton and Lawson were discovered the next morning by a neighbor who called the police. Burton died, and Lawson survived.
Lawson later identified Isom as the attacker in a photographic lineup and again at trial. Two witnesses testified that they saw Isom and Lawson talking outside Burton's residence at around 7:00 p.m. on the night of the crimes. A black hair was recovered from Lawson's vagina during a rape-kit examination. A DNA analyst testified at trial that the profile from the hair was consistent with Isom's and would reoccur once in every 57 million African Americans.
Isom was convicted of capital murder, attempted capital murder, residential burglary, and two counts of rape, and he was sentenced to death for the capital-murder conviction. His convictions were affirmed on direct appeal. Isom v. State , 356 Ark. 156, 148 S.W.3d 257 (2004). Subsequently, this court affirmed the denial of Isom's Rule 37 petition and a petition for additional DNA testing. Isom v. State , 2010 Ark. 495, 370 S.W.3d 491 ; Isom v. State , 2010 Ark. 496, 372 S.W.3d 809. Isom later filed an application for a writ of habeas corpus in the United States District Court for the Eastern District of Arkansas. Pet. for Writ of Habeas Corpus, Isom v. Hobbs , No. 5:11cv47 BSM, 2011 WL 13318484 (E.D. Ark. Mar. 1, 2011). The federal district court ordered Isom to return to state court to exhaust his state remedies. Order at 6-7, Isom v. Hobbs , No. 5:11CV00047 JLH, 2013 WL 12380240 (E.D. Ark. Apr. 1, 2013).
Isom petitioned this court to reinvest jurisdiction in the circuit court to allow him to seek a writ of error coram nobis. We reinvested the circuit court with jurisdiction to consider Isom's Brady claims. Isom v. State , 2015 Ark. 225, 462 S.W.3d 662.
Isom filed a petition for writ of error coram nobis in the circuit court on June 12, 2015. The circuit court scheduled a hearing on the petition for December 8-9, 2015. Before the hearing, Isom moved for discovery and for the recusal of the judge. Both motions were denied. In its order denying discovery, the circuit court stated that any witnesses or evidence that counsel needed could be subpoenaed to the hearing. Following the hearing and the submission of posthearing briefs, the circuit court dismissed Isom's petition for writ of error coram nobis. Isom appeals.
II. Suppression of Eyewitness-Identification Evidence
Isom contends that the circuit court abused its discretion in dismissing his petition for writ of error coram nobis because the State suppressed evidence in violation of Brady , 373 U.S. 83, 83 S.Ct. 1194. Specifically, Isom asserts that the circuit court erred in finding (1) that there was no failed identification on April 4, 2001; (2) that Lawson's equivocation was not suppressed; (3) that a witness's prior statement was not impeaching; and (4) that any suppression was harmless.
A writ of error coram nobis is an extraordinary remedy that is available in compelling circumstances to achieve justice and to address fundamental errors, including Brady violations. See Larimore v. State , 327 Ark. 271, 938 S.W.2d 818 (1997). 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 that, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Martinez-Marmol v. State , 2018 Ark. 145, 544 S.W.3d 49. The denial of a coram nobis petition is reviewed for abuse of discretion. See Pelletier v. State , 2015 Ark. 432, 474 S.W.3d 500.
Under Brady , the State violates a defendant's right to due process if it withholds evidence that is favorable to the defense and material to the defendant's guilt or punishment. Brady , 373 U.S. at 87, 83 S.Ct. 1194. The duty to disclose exists even when there has been no request by the accused, United States v. Agurs , 427 U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and it extends to evidence known only to law enforcement officials and not to the prosecutor, Kyles v. Whitley , 514 U.S. 419, 438, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).
A successful Brady claim has three components: (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; and (3) prejudice must have ensued. Strickler v. Greene , 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). To assess the prejudice component of the Brady test, courts consider whether the withheld evidence is material. Evidence is material-and its suppression prejudicial-if there is a "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley , 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
In reinvesting the circuit court with jurisdiction to consider Isom's Brady claims, this court tasked the circuit court with resolving factual disputes raised in Isom's application. When acting as a fact-finder, the circuit court determines the credibility of witnesses, resolves conflicts and inconsistencies in testimony, and assesses the weight to be given the evidence. See Strom v. State , 348 Ark. 610, 74 S.W.3d 233 (2002). We review a circuit court's factual findings for clear error. Cloird v. State , 357 Ark. 446, 182 S.W.3d 477 (2004). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with a definite and firm conviction that a mistake has been committed. Newman v. State , 2014 Ark. 7, 2014 WL 197789.
A. Alleged Failed Identification
Isom asserted in his petition that Lawson was shown two photographic arrays that included his picture: a lineup of stock photographs on April 4, and a poster-sized lineup of enlarged photographs on April 5. He claimed that when Lawson was shown the stock photographs, she failed to identify him as her attacker. The circuit court disagreed.
On appeal, Isom contends that the circuit court erred in finding that there was no failed identification on April 4. To provide context for Isom's arguments and to facilitate the understanding of the issues before us, we quote extensively from the circuit court's order:
It is Petitioner's burden to convince the court that such a photo array was shown to Dorothy Lawson on April 4, 2001, by the police. The Petitioner has failed to convince the court that this in fact occurred. The court will explain why it reaches this conclusion. On this issue, the court finds the facts are these:
A photo lineup was in fact shown to Dorothy Lawson on April 5, 2001, at about 12:54 p.m. Ms. Lawson was then a patient in the Intensive Care Unit of Drew Memorial Hospital. Scott Woodward, a State Police Investigator working on the case, and John Dement, an investigator with the Monticello Police Department were present, as was another State Police Investigator, Rick McKelvey. The photo array for the lineup shown Ms. Lawson was prepared by Scott Woodard from photos he took that day. It was admitted at the trial of Petitioner as State's Exhibit 33 and is admitted in the record at the hearing on the Writ as Joint Exhibit 1. This is not the photo lineup complained of in this point of argument.
Defendant's argument that a photo lineup was shown by the police investigators to Dorothy Lawson on April 4, 2001, is based on a nurse's note. The note is on Petitioner's Exhibit 10, Page 125 from the Writ hearing. The time is 1500 hours or 3 p.m. It says:
Police here asking for Mrs. Lawson to ID suspect from photos. Attempts ID. Police officers to enlarge photos and bring them back tomorrow. Ms. Lawson agrees to view enlarged photos tomorrow.
The note was authored by Nurse Kristi Waxley who testified at the Writ hearing. (R. 124, et seq.) Nurse Waxley's testimony on the issue is contained on R. 136 and following. A reading of her testimony reveals that she had no independent memory of what occurred. She offered no testimony about what she meant by "attempt."
There is other evidence in the record the Court must consider on this particular issue as well. While neither party has chosen to outline the testimony of Dorothy Lawson from the trial on this issue, the Court has looked at it. It is contained in the trial transcript beginning at R. 1370. Beginning at R. 1422, Ms. Lawson was questioned on cross-examination by defense counsel about her identification and, specifically State's Exhibit 33, the photo line-up she viewed on April 5, 2001. At L 9, R. 1422, the following occurred:
Q: And you looked at the picture?
A: (Nodding affirmatively)
Q: Did you have your glasses on when you looked at the pictures?
A: I'm not sure about the day. They brought me some, a smaller sheet of pictures, and they told me to be sure that, to take time to look at them real good and everything. And I told them it might be better to wait till I got my, some glasses, you know, well, my glasses were all broke up at Bill's (murder victim's) house. And so Dr. Ferguson, Ricky Ferguson he fixed a pair of glasses for me. And so that's when I looked at the pictures again and I picked out, I picked out the man.
The initial emergency room report of Dorothy Lawson's admission to Drew Memorial Hospital is located at Petitioner's Exhibit 10, Page 7. It shows she was admitted to the emergency room on 4-3-2001 at 9:36 a.m. Other evidence reflects she was transported there by ambulance. The chief complaint being "assaulted." Other portions of the exhibit show she complained of sexual assault the night before. She had numerous injuries described in the exhibit, but they included multiple bruises and lacerations in her facial area, and facial fractures. She was attended by Dr. Paul Wallick and his first history and physical dictated on 4-4-01 (Pet. Exhibit 10, p. 5-6) note "Orbits are particularly swollen and known fractures are present. Her eyes are bloodshot and hemorrhagic conjunctivitis." He further notes an ophthalmic consultation would be obtained. The records further note such a consultation took place with Dr. Claycomb on 4-4-01 at 11:45 a.m. (Pet. Exh. 10, p. 9). The Court cannot read all of the note but can read enough to find that eye injuries were confirmed by the examination.
Prior to trial a motion was filed to suppress a photo line-up that was admitted into trial evidence. (R. 129-130). A hearing was held on the motion. (R. 129-130). At that hearing, Scott Woodward testified, as did Dr. Ricky Ferguson. Mr. Woodward's testimony concerned the photographic lineup actually admitted at trial. He testified that he was unaware of any other lineup being shown Mrs. Lawson, but there was some discussion in several places of a prior photographic array. (R. 311, L. 5-12). The proof showed that Mrs. Lawson had been assaulted on the evening of April 2. On April 5, Woodward and John Dement went to Drew Memorial Hospital to see her about 8:30-9 a.m. Woodward's testimony was that Mrs. Lawson had been given some medications to "calm her." They spoke with Mrs. Lawson, who could not see then because her eyes were swollen shut and she needed her glasses, so they decided to wait to show her the photographic array they later presented her.
During the delay the proof showed Dr. Ferguson's lab prepared another set of glasses for Mrs. Lawson, to replace the ones broken in her attack. Dr. Ferguson's testimony was that he took the new glasses to the hospital and fitted them on Mrs. Lawson because of the swelling on her facial area. He further testified that she stated after they were fitted she could see the clock on the wall across the hospital room, actually telling them the time from the clock.
Later after that fitting and about 12:54 p.m. Dement and Woodward, along with Rick McKelvey, another investigator, went back to the hospital and showed Mrs. Lawson the array at issue which was admitted at trial and from which the defendant was identified. The Court found the array was not unduly suggestive. (R. 341).
From all this evidence, both direct and circumstantial, the Court is of the firm conclusion that no second array, which is the basis of this argument, was shown to Mrs. Lawson on April 4 or April 5. Since the Court finds that this prepared array was not in fact shown to Mrs. Lawson, it follows that this was not in fact evidence favorable to defendant within the meaning of Brady . This argument is thus rejected.
Having set out the relevant findings, we turn to Isom's contention that the circuit court erred in finding that there was no failed identification on April 4. He argues that the circuit court erred in (1) discounting the nurse's note, (2) relying on Lawson's misquoted testimony, and (3) crediting Woodward's suppression-hearing testimony. We address each argument separately.
1. Nurse's note
First, Isom contends that the circuit court erred in discounting the nurse's note because Waxley did not define the word "attempt" in her testimony. He asserts that the word "attempt," as commonly used, is not ambiguous, and therefore, "attempts ID" in Waxley's note means that Lawson looked at the photo and was not able to make an identification. Here, the circuit court did not adopt Isom's definition of "attempts ID" or give great weight to the note. Determining the weight of the evidence is a matter for the fact-finder.
See Strom , 348 Ark. 610, 74 S.W.3d 233. Isom's disagreement with the weight given to evidence does not establish clear error.
2. Lawson's testimony
Next, Isom notes that the circuit court cited Lawson's trial testimony to support its finding that there was no failed identification on April 4. He contends that the circuit court misquoted Lawson's testimony and that her actual testimony supports the failed lineup theory. At trial, Lawson was asked, "Did you have your glasses on when you looked at the pictures?" The circuit court stated that Lawson responded, "I'm not sure about the day." Isom states that Lawson responded, "I'm not sure about that day." The transcript states,
Q: Did you have your glasses on when you looked at the pictures?
A: I'm not sure about that day. They brought me some, a smaller sheet of pictures and they told me to be sure that, to take time to look at them real good and everything. And I told them it might be better to wait till I got my, some glasses, you know. Well, my glasses was all broken up at Bill's house. And so Dr. Ferguson, Ricky Ferguson, he fixed a pair of glasses for me. And so that's when I looked at the pictures again and I picked out, I picked out the man.
Isom contends that Lawson used the word "that" because she was specifying one of two times when she looked at photographs of suspects. He states that she ended her answer with "that's when I looked at the pictures again ," also indicating that she looked at photographs twice.
Isom is correct that the circuit court misquoted Lawson's testimony. Based on our review of the record and the circuit court's order, we conclude that the misquotation was a typographical error that did not otherwise affect the circuit court's reasoning or decision. A fair reading of Lawson's testimony is that she was asked to look at photographs while in the hospital but declined to do so because she did not have her glasses.
3. Woodward's testimony
Isom asserts that the circuit court erred in relying on Woodward's testimony from the pretrial suppression hearing to support a finding that Lawson was shown only one photospread. Isom asserts that this testimony was "proven false" by other evidence in the record, including Woodward's own testimony at the coram nobis hearing. In support, he refers to Woodward's inconsistent testimony about the lineups. Woodward testified at the suppression hearing that he and Dement went to the hospital on April 5 between 8:30 and 9:00 a.m. But at the coram nobis hearing, Woodward testified that he and Dement went to the hospital on April 4. He stated that he did not recall previously testifying that it was April 5. Woodward testified at the suppression hearing that when he first went to see Lawson, he brought the handmade poster array to the hospital, not the lineup of stock photographs. But at the coram nobis hearing, he testified that he brought the lineup of stock photographs to the hospital on his first visit. Here, the inconsistencies within Woodward's testimony, or between his testimony and that of others, were matters for the circuit court to resolve when making credibility determinations. See, e.g. , Nance v. State , 2014 Ark. 201, 433 S.W.3d 872.
We will not reverse a circuit court's findings merely because we would have viewed the evidence differently. "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous."
Anderson v. City of BessemerCity, N.C. , 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) ; see Atchison v. State , 298 Ark. 344, 346, 767 S.W.2d 312, 313 (1989) ("Since there was evidence presented at the hearing to support a ruling either way, we cannot say the trial court's ruling is clearly against the preponderance of the evidence."). In this case, after hearing all the evidence, the circuit court concluded that there was no failed identification on April 4. We hold that the circuit court did not clearly err in finding that Lawson viewed only the enlarged photospread on April 5, 2001.
B. Equivocation in Identification
Isom contends that the State withheld favorable, material evidence when it concealed a report prepared by Arkansas State Police investigator Rick McKelvey that shows Lawson equivocated between persons one and three when viewing the poster array. Isom's claim that the "McKelvey Report" was suppressed is based upon the coram-nobis hearing testimony of two people: the office manager in the prosecuting attorney's office who stated that she was unable to locate the report in the prosecutor's file a decade after the trial, and the public defender's current office manager who stated that she was familiar with the Isom file and "did not recall the report in the file." The report stated,
INVESTIGATOR'S NOTES # 4
On April 05, 2001, Investigator JOHN DEMENT, Monticello Police Department, S/A SCOTT WOODWARD, ASP-CID, and I traveled to Drew Memorial Hospital to visit with victim DOROTHY LAWSON. The purpose of the visit was to show Ms. LAWSON a photo line-up that was put together by S/A WOODWARD and the Prosecuting Attorney's Office. These photos were placed on large poster board and presented to Ms. LAWSON at 12:54 p.m. At 1 p.m., Ms. LAWSON pointed to Photo # 3. She makes the following statement: "I seen that person next door. He is the person I talked to before it happened. I think he is the one that came in the house. It looks like him. He's the one that did that to us." Ms. LAWSON requested to take a second look. She studied each of the photos and at 1:02 p.m., she makes the statement, "it's 1 or 3." She states that # 1's face is a little round shaped like that. He was wearing a white shirt with something that looked like a lightning bolt on it. She indicated the lightning bolt would have been located in the chest area. ER nurses, KRISTY WAXLEY and ASHLEY MCKINSTRY, were present.
Isom contends that the McKelvey Report was not revealed to the defense until John Dement testified at trial. During redirect examination, the prosecutor asked Dement about Lawson's statement and instructed Dement to read through the investigator's notes to refresh his memory.
PROSECUTOR : You said that Rick McKelvey had your notes from this statement?
DEMENT : He has the investigator's notes from the, where we made the, when Ms. Lawson made the identification and what she said at the hospital.
PROSECUTOR : Can you go get those from them?
DEMENT : Yes, sir.
PROSECUTOR : Okay. You found them.
DEMENT : Yes.
PROSECUTOR : Would you read through them?
DEMENT : Yes.
PROSECUTOR : And not - - Don't read them out loud. I just want you to read through them to refresh your memory.
DEFENSE COUNSEL : May we approach the witness to see where he is and what he's reading?
THE COURT : Yes.
On cross-examination, Dement disagreed with the suggestion in the McKelvey Report that Lawson had equivocated in her identification. According to Dement, Lawson told investigators that the men shown in photos 1 and 3 shared a common attribute, that is, a round-shaped face. Following the cross-examination, defense counsel moved to admit the McKelvey Report as Defendant's Exhibit One:
DEFENSE COUNSEL : I'd like to introduce that statement as a Defense Exhibit Number One.
THE COURT : Okay. Do we have a copy of it?
DEFENSE COUNSEL : No, sir. I'm - -
THE COURT : Okay.
DEFENSE COUNSEL : -- sure I've got one - -
THE COURT : Well, just get us one. Any objection?
PROSECUTOR : No objection, Your Honor.
THE COURT : Okay. It'll be admitted as Defendant's One once it's procured and properly tendered.
(Whereupon, Defendant's Exhibit One was marked for identification and received in evidence).
Isom claims that the report was first disclosed during trial, when Dement testified. The record reveals that while Dement was looking at the report to refresh his recollection, defense counsel asked to approach and see what Dement was reading. The circuit court allowed defense counsel to approach. Then, defense counsel used information in the report while cross-examining Dement to impeach the certainty of Lawson's identification. Thereafter, defense counsel admitted the report into evidence. Defense counsel did not say that he had not seen the report before trial. Based on our review of the record, we hold that the circuit court did not clearly err in finding that Isom failed to prove that the McKelvey Report was newly discovered Brady evidence.
C. Field Notes of the Linda Kay Johnson Interviews
Isom alleged in his petition that the State failed to disclose handwritten notes from interviews with witness Linda Kay Johnson that would have impeached her trial testimony. He contends that the circuit court erred in finding that the notes were not impeaching.
Johnson lived across the street from Burton and Alfred Collins. She was interviewed twice by Rick McKelvey on April 3, at approximately 10:30 a.m. and then at approximately 4:00 p.m. According to McKelvey's 10:30 a.m. notes, Johnson told McKelvey that she "may have seen [Isom] over at Alfred's [on] Sunday. There [were] a lot of them out there then." She also told McKelvey that Isom "does hang out there." According to McKelvey's 4:00 p.m. notes, when he interviewed Johnson the second time, she told him that she "saw Dorothy and Zero talking in [the] yard yesterday" and stated that it "had to be after 7:00 p.m." when she "left to go get the kids at Ball Practice," and "got back a little after 8:00."
McKelvey reduced his field notes to a typewritten report. The report does not mention Johnson's statement from her first interview that she may have seen Isom at Collins's house on Sunday-the day before the attack. Only the typewritten report was turned over to the defense.
At trial, Johnson testified that on Monday night at around 7:00 p.m., she saw Isom on Collins's front porch talking with Lawson, who was standing in the yard. Johnson also testified that she did not know what Isom and Lawson were talking about and that she had never seen the two of them talking before, but it was not unusual to see Isom over at Collins's house. She testified on cross-examination that she had known Isom "a long time," but she was unaware that he had the nickname "Zero" until she was questioned by the police.
Johnson was cross-examined about why she failed to mention in her first interview that she had seen Isom talking with Lawson on Monday night. She testified that the police officer "didn't ask, so I didn't tell him." Johnson further testified that after she "found out what happened," she told the police officer that she had seen Isom and Lawson talking on Monday night.
The circuit court found that Johnson's undisclosed statement to McKelvey that she "may have seen" Isom at Collins's house on Sunday was not impeaching evidence. We agree. Whether Isom was at Collins's house on Sunday was not relevant to the murder. Moreover, the evidence that was impeaching was brought out at trial. The jury heard Johnson's testimony that in her first interview, she did not tell McKelvey that she had seen Isom talking with Lawson. We hold that the circuit court did not err in finding that the notes were not impeaching and thus not "favorable" evidence within the meaning of Brady .
III. Denial of Discovery
Isom contends that the circuit court abused its discretion in limiting discovery in conjunction with his evidentiary hearing. He asserts that the denial of discovery prevented him from proving his claim related to the suppression of physical evidence.
In Isom , 2015 Ark. 225, 462 S.W.3d 662, we noted that Isom had alleged that a pair of scissors, purportedly the murder weapon, may have been suppressed. Isom claimed that the scissors were found in the search of a trailer home pursuant to information supplied by Kevin Green, an inmate of the Drew County jail. At a pretrial hearing, Deputy Prosecuting Attorney Frank Spain testified that a search of a trailer pursuant to Green's tip failed to produce a pair of scissors. But at the Rule 37 hearing, Spain testified that scissors had been found in the search and submitted to the crime lab for testing. We reinvested the circuit court with jurisdiction to resolve this inconsistency. See id. at 5-7, 462 S.W.3d at 665-56 ("Given that Spain, under oath, has testified to two different versions of the facts, we are compelled to have the circuit court conduct an evidentiary hearing[.]").
Before the coram nobis hearing, police investigators were unable to find any of the scissors connected to the case. In the initial investigation, four pairs of scissors were found and submitted for testing, but none were forensically linked to the homicide. Isom asked the circuit court to order discovery of all evidence-submission forms received by the crime lab from the Monticello Police Department or the Arkansas State Police for Drew County between the crime and the trial. The circuit court issued an order finding that Isom was not entitled to prehearing discovery. At the hearing, the circuit court partially quashed a subpoena duces tecum to the crime lab for evidence-submission sheets and required the lab to search only for submissions under the names of Isom and Kevin Green. Counsel renewed the discovery motion, which the circuit court again denied.
Isom states that, because of the circuit court's ruling, he was unable to develop evidence that may have proved his claim at the hearing. Isom contends that his discovery request was closely linked to the question this court directed the circuit court to consider, which is whether the police uncovered evidence during the search of the trailer identified by Green. Isom states that he was able to question only Spain and Woodward about the search, and they both denied that it turned up any scissors. He claims that the requested discovery would have provided objective evidence as to whether a fifth pair of scissors had been found.
Isom cites Williams v. State , 2017 Ark. 20, 518 S.W.3d 653, for the proposition that the scope of the discovery that he proposes is authorized following this court's reinvestment of jurisdiction in the circuit court. However, in Williams , this court reversed the circuit court's denial of the writ when the circuit court merely entered an order denying relief on the same pleadings presented in the application to this court. Id. at 3, 518 S.W.3d at 655.
Here, the circuit court placed no limit on Isom's use of witness subpoenas for the coram nobis hearing. The circuit court modified the document request that sought every evidence-submission form submitted by the Arkansas State Police or Monticello Police Department that emanated from Drew County over a nine-month period in 2001. The circuit court narrowed the request to all evidence-submission forms that had some connection to either Kenneth Isom or Kevin Green. We conclude that the circuit court did not abuse its discretion in limiting discovery.
IV. Recusal
Isom contends that the circuit court judge should have recused himself as a matter of state and federal law. He bases his claim on actions that the judge took while he served as the elected prosecutor in unrelated cases against Isom; references in a pretrial order to Rule 3.1 of the Arkansas Rules of Professional Conduct and Rule 11 of the Arkansas Rules of Civil Procedure ; and comments made at the coram nobis hearing.
Rule 1.2 of the Arkansas Code of Judicial Conduct states,
A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.
"No Justice or Judge shall preside or participate in any case in which he or she might be interested in the outcome." Ark. Const. amend. 80, § 12. Arkansas Code of Judicial Conduct 2.11(A) states that a "judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned."
A judge's decision not to recuse is discretionary and will not be reversed on appeal absent an abuse of that discretion. Owens v. State , 354 Ark. 644, 128 S.W.3d 445 (2003). There is a presumption that judges are impartial. Turner v. State , 325 Ark. 237, 926 S.W.2d 843 (1996). To decide whether there was an abuse of discretion, we review the record to see if any prejudice or bias was exhibited. Davis v. State , 345 Ark. 161, 44 S.W.3d 726 (2001).
"Due process guarantees an 'absence of actual bias' on the part of a judge." Williams v. Pennsylvania , --- U.S. ----, 136 S.Ct. 1899, 1905, 195 L.Ed.2d 132 (2016) (quoting In re Murchison , 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955) ). Even absent "actual bias" and even if the judge would "do their very best to weigh the scales of justice equally," when there is an appearance of impropriety, recusal is required to preserve the "appearance of justice." Murchison , 349 U.S. at 136, 75 S.Ct. 623. "Recusal is required when objectively speaking, 'the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.' " Rippo v. Baker , --- U.S. ----, 137 S.Ct. 905, 907, 197 L.Ed.2d 167 (2017) (quoting Withrow v. Larkin , 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) ).
Before the coram nobis hearing, Isom moved for the circuit judge, Honorable Sam Pope, to recuse based on actual bias or an appearance of bias. He attached to his motion exhibits showing that Judge Pope, when serving as a prosecutor, had twice prosecuted him on serious charges and twice he was acquitted by a jury. Also attached to the motion was an exhibit showing that Prosecutor Pope was successful in obtaining a conviction against Isom for theft of property and a sentence of fifteen years in the Arkansas Department of Correction (ADC).
Isom acknowledges that this court has held that a circuit judge's previous prosecution of a defendant is insufficient under Arkansas law to require recusal. See, e.g., Irvin v. State , 345 Ark. 541, 552-53, 49 S.W.3d 635, 642-43 (2001). Still, he contends that the judge's actions related to Isom's release on parole demonstrate actual bias or an appearance of bias sufficient to warrant recusal. Specifically, Isom asserts that Prosecutor Pope was biased against him because after Isom was paroled in February 1994, Prosecutor Pope contacted the governor's office and attempted to have his parole rescinded.
Letters in the record detail the following sequence of events concerning Prosecutor Pope's actions. In preparation for the possible release of Isom, the Post Prison Transfer Board forwarded the required legal notices to the sentencing judges, prosecuting attorneys, and sheriffs in Drew, Jefferson, and Cleveland Counties. Isom was released on parole in February 1994. On March 2, 1994, Prosecutor Pope met with Jack Gillean, the Governor's executive assistant for Criminal Justice, to discuss Isom's parole. Prosecutor Pope told Gillean that he had not been notified of the possibility of parole for Isom or given a chance to oppose the parole. Prosecutor Pope also told Gillean that he was concerned that Isom had been improperly paroled given his lengthy sentence.
In a letter to Prosecutor Pope, Gillean addressed Prosecutor Pope's questions about notifications and parole eligibility. Gillean explained that he had contacted Larry Norris, director of the ADC, and asked him if the notifications had been mailed prior to Isom's release from prison. Gillean sent Prosecutor Pope a copy of Norris's response. Norris stated that a notification letter had been forwarded to Prosecutor Pope but noted that "on November 22, 1993, a Sheriff Jay Winters responded to 'no' to release on the Drew County prosecuting attorney's form. This may be where the confusion lies." Gillean further stated that Isom was eligible for parole after serving one third of his sentence and that counting good time credits, Isom was parole eligible in just over three and one-half years. Finally, Gillean stated, "I know you were hoping Mr. Isom could be returned to prison. After reviewing the facts, it appears his parole was proper, and I know of no way to rescind it."
Isom argued in his motion for recusal that Prosecutor Pope's efforts to meet with the governor's office after Isom had been properly paroled by the ADC and his stated desire to "return Mr. Isom ... to prison" went above his ordinary duties as a prosecutor and represented a sincere conviction that Isom belongs in prison regardless of his legal right to be free. Judge Pope declined to recuse himself from the case and ruled that "[w]hile nothing in the factual allegations regarding the judge's prior actions as prosecutor ... is incorrect, the conclusions and arguments drawn therefrom are incorrect." Judge Pope wrote that his actions were "not improvident or extraordinary" and were part of his role as an active and thorough prosecutor.
Here, it appears that the notice of the possibility of parole for Isom was received by a sheriff rather than by Prosecutor Pope. When Prosecutor Pope met with Gillean, he complained that he had not been given notice and an opportunity to be heard before Isom's parole, and he voiced his objection to Isom's release. Based on our review of the letters, we conclude that Prosecutor Pope was carrying out his ordinary duties as a prosecutor when he contacted the governor's office about Isom's parole eligibility. Under these facts, Isom has failed to demonstrate actual bias or the appearance of bias sufficient to require recusal.
Isom also contends that the judge should have recused himself because he appeared to exhibit bias in a pretrial order. Before the coram nobis hearing, Isom asked to depose several witnesses who refused to speak with his legal team and requested access to handwritten investigative notes and crime-lab documents. The circuit court denied the motion for discovery and implied that if counsel lacked evidence to support her claims she might be subject to Rule 11 sanctions for violating the Arkansas Rules of Professional Conduct. In the order, the circuit court stated,
Mr. Isom has made some serious allegations against the state which if true would constitute violations of the state's obligations under Brady v. Maryland . Rule 3.1 [of the] Arkansas Rules of Professional Conduct provide that a lawyer may only bring assertions on an issue if there is a factual reason to do so. Additionally, by reference only, Arkansas Rule of Civil Procedure, Rule 11(b)(3) requires a lawyer's signature on a pleading be based on a reasonable inquiry that the factual contentions in a pleading have evidentiary support.
Isom claims that at the time counsel moved for discovery, she had already filed a petition with the circuit court supported by thirteen exhibits, that much of the information regarding the claims was in the possession of State actors, and that most of the State actors refused to speak with Isom's legal team before the hearing. Isom states that counsel at every stage of a death-penalty case has a professional obligation to continue to investigate the case and that far from being sanctionable, requesting discovery was required by counsel's professional obligations.
Here, counsel appeared to be doing her job, and the judge's reference to sanctions was not warranted. Still, we disagree with Isom's contention that the judge's treatment of the discovery request "showed hostility" that requires recusal. The circuit judge acted within his discretion when he limited discovery, and his mention of Rule 11 did not compel his disqualification from the case.
Finally, Isom contends that the circuit court showed a lack of impartiality during the hearing. He states that at the hearing, counsel attempted to ask Rick McKelvey whether scissors were recovered by investigators following a tip from inmate Kevin Green. Isom states that McKelvey appeared to recall the search until Judge Pope inserted the idea that McKelvey's answers could be explained because "Mr. McKelvey has hearing problems sometimes." Isom further states that during the questioning of trial counsel, Bing Colvin, regarding the impact of an attempted identification, the judge interjected himself again. Colvin responded to a question from the prosecution with a rhetorical question of his own wondering why police were trying to speak to Lawson without first getting an update on her medical condition. Isom contends that the judge showed favor to the State when he responded, "That's simple Mr. Colvin. Called medical rights to privacy, you know ... She's got to consent to talk to them." Having reviewed the transcript, we conclude that the judge's interjections, while unnecessary, did not show bias against Isom.
V. Conclusion
Because Isom failed to demonstrate Brady violations, we hold that the circuit court did not abuse its discretion in dismissing his petition for writ of error coram nobis. We further hold that the circuit court did not abuse its discretion in limiting discovery. Finally, we hold that the circuit court did not abuse its discretion in denying the motion for recusal.
Affirmed.
Hart and Wood, JJ., dissent.
Josephine Linker Hart, Justice, dissenting.
The circuit judge's refusal to recuse in this case should be reversed. Not only is there an obvious appearance of impropriety, there was strong circumstantial evidence of actual bias in the circuit judge's prior dealings with Mr. Isom. I cannot overlook that all of the so-called "discretionary" calls discussed in the majority opinion, as well as the lack of judicial temperament by the circuit judge, seem to substantiate the allegation of bias made before the hearing. Accordingly, a new hearing should be ordered.
The majority's finding that "Based on our review of the letters, we conclude that Prosecutor Pope was carrying out his ordinary duties as a prosecutor when he contacted the governor's office about Isom's parole eligibility" is simply wrong. The majority's conclusion is unsupported by either law or fact.
Factually, the majority's finding that "it appears that the notice of the possibility for parole for Isom was received by a sheriff rather than by Prosecutor Pope," is pure speculation and not even suggested by Judge Pope when he denied Mr. Isom's recusal motion. Further, a letter, signed by "Jack Gillean, Executive Assistant for Criminal Justice," indicates that Prosecutor Pope was notified of Mr. Isom's pending parole hearing. The letter states,
On March 14, 1994, I received a letter from Mr. Norris which I have attached for your review. Mr. Norris informed me that notifications were forwarded to the persons named in the letter. Mr. Pope's name was among those listed. In addition, as noted in the letter, responses were returned by Drew and Jefferson counties; however, Sheriff Jay Winter responded "no" to the release on the Drew County prosecuting attorney's form.
Accordingly, there is no factual basis for the majority's conclusion that Prosecutor Pope was "carrying out his ordinary duties" when he made his extraordinary trip to Little Rock.
There is also no legal basis to support the majority's finding that Prosecutor Pope was "carrying out his ordinary duties." The State argues that Arkansas Code Annotated section 16-93-702(a) makes Prosecutor Pope's extraordinary trip to Little Rock as part of his statutory duties. However, a prosecutor's input is solicited "[b]efore the parole board shall grant any parole." Id. Obviously, before the parole board shall grant any parole does not mean after the parole board has made its decision. As Chief Justice Kemp noted in City of North Little Rock v. Pfeifer , 2017 Ark. 113, 515 S.W.3d 593, "The first rule of statutory construction is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language." Section 16-93-702(a) does not require a prosecutor to travel to Little Rock to use the power of his office to attempt to persuade the governor to annul a decision by the parole board. Accordingly, Prosecutor Pope's extraordinary efforts to reverse Mr. Isom's lawfully granted parole can only be attributed to some special animus that Prosecutor Pope held toward Mr. Isom.
Further, while I am mindful that a trial judge's previous prosecution of a defendant is insufficient under Arkansas law to require recusal, the circumstances of Judge Pope's prior involvement with Mr. Isom as a prosecutor are remarkable. Before successfully winning a conviction against Mr. Isom in the case that resulted in Prosecutor Pope's extraordinary efforts to get the governor to annul a lawful decision by the parole board, Prosecutor Pope twice failed. Acquittals in criminal trials are not common in Arkansas; a defendant's acquittal in two separate criminal trials is obviously even rarer. I decline to speculate whether these rare failures instilled in Prosecutor Pope an animus toward Mr. Isom, or whether a preexisting animus caused Prosecutor Pope to twice take Mr. Isom to trial without sufficient evidence. I am certain, however, that Judge Pope's prior dealings with Mr. Isom, including his extraordinary efforts to get the governor to annul a lawful decision by the parole board, made him especially familiar with Mr. Isom.
That familiarity with Mr. Isom continued when Judge Pope ascended to the bench. Judge Pope presided over Mr. Isom's criminal trial, which included the ruling on Mr. Isom's motion to suppress an identification made by Dorothy Lawson. Significantly, Judge Pope ruled that the photo array the police showed to Ms. Lawson was not unduly suggestive even though Mr. Isom was the only man in the array photos who did not have facial hair. Judge Pope also presided over Mr. Isom's Rule 37 hearing, and he denied Mr. Isom post-conviction relief.
It is standard practice in Arkansas for a circuit judge to preside over both the criminal trial and postconviction proceedings. As any reasonable person would recognize, inherent in this situation is a bias against a criminal defendant receiving postconviction relief because the circuit judge is responsible for ensuring that a criminal defendant receives a fair trial. Accordingly, in a Rule 37 hearing, the circuit judge is permitted to give himself his own report card. Due process would be better served if a judge who was not involved in the trial of the substantive charge would conduct the Rule 37 hearing.
However, the case before us presents an even more compelling reason why the judge who presided over the criminal trial and Rule 37 hearing should not preside over further proceedings. It involves a rare grant of permission for an inmate to pursue a writ of error coram nobis, as well as some highly unusual issues, the compelling state interest in avoiding the appearance of impropriety dictates that another judge be tasked with presiding. One of the issues that Mr. Isom raises concerns Ms. Lawson's identification of Mr. Isom on the photo array that the police presented to her at the hospital. Judge Pope was the finder of fact on the issue of whether the identification should have been suppressed. Judge Pope allowed himself to be placed in an untenable position. The hearing in large part concerned his decision, not as just a referee but also as the finder of fact. No member of the judiciary should have been placed in that position-the appearance of bias in this situation is impossible to avoid. That was exactly the situation in Ferguson v. State , 2016 Ark. 319, 498 S.W.3d 733, in which we reversed a circuit judges decision to sit on a case where her "impartiality might reasonably be questioned." Given the unique history of this case and the issues to be tried, Judge Pope's impartiality could reasonably be questioned.
Judge Pope's handling of the trial certainly did nothing to dispel questions of his impartiality. When Mr. Isom sought discovery as a means of uncovering some objective evidence to help determine which version of Frank Spain's testimony was closest to the truth, Judge Pope acted as an advocate opposed to Mr. Isom, not a neutral arbiter. As the majority notes, Judge Pope threatened Mr. Isom's attorney with Rule 11 sanctions in his written order:
Mr. Isom has made some serious allegations against the State which if true would constitute violations of the state's obligations under Brady v. Maryland. Rule 3.1 Arkansas Rules of Professional Conduct provide that a lawyer may only bring assertions on an issue if there is a factual reason to do so. Additionally, by reference only, Arkansas Rule of Civil Procedure, Rule 11(b)(3) requires a lawyer's signature on a pleading be based on a reasonable inquiry that the factual contentions in a pleading have evidentiary support.
The majority is correct when it opines that "[h]ere, counsel appeared to be doing her job, and the judge's reference to sanctions was not warranted." Inexplicably, the majority does not believe that such an intemperate and gratuitous threat "showed hostility" that requires recusal.
Likewise, Judge Pope's demonstrated what could reasonably be interpreted as a lack of impartiality-or outright bias-when Mr. Isom's counsel attempted to question Officer Rick McKelvey about whether scissors, suspected to be the murder weapon, had been recovered during a search. Initially, Officer McKelvey appeared to recall such an event but became confused during his testimony.
Q: During the course of your investigation into the Burton homicide, did you go on a search for a weapon with an inmate from the Drew County Detention Center?
A: We-I recall a search warrant being executed at someone's house. And I do believe there might have been a pair of scissors recovered from that search warrant.
Q: And then you recall a separate search that occurred with an inmate from the detention center where you recovered a pair or two pairs of scissors?
A: I don't-I don't recall how many were recovered, but I do recall there, as a result of a search warrant, there was one or two pairs of scissors.
Q: And in addition, to those four, you testified that you went on a search with an inmate from the Drew County Detention Center at a house and there were a number of scissors located, one or more. Correct?
A: That's correct.
However, Judge Pope interjected, asserting that Officer McKelvey's answers could be explained because "Mr. McKelvey has hearing problems sometimes." If Officer McKelvey's hearing was really a matter of concern, a reasonable person would expect a circuit judge to do nothing more than say, "Speak up counselor." Instead, Judge Pope declared a recess. I cannot fail to notice that after the break, the State recalled Officer McKelvey, who testified that his prior testimony was mistaken, he had misspoken earlier, and on further questioning repeatedly expressed inability to hear the questions from Mr. Isom's counsel. When a circuit judge, sitting as the finder of fact, takes it upon himself to rehabilitate a witness and then orders a recess that could reasonably be interpreted as giving the State a chance to wood-shed that witness, the judge's impartiality might reasonably be questioned.
Given the appearance of bias, if not the actual bias, and ample reason to question the impartiality of Judge Pope, all the close "discretionary" calls that he made must be questioned. Credibility determinations and the weight to be assigned conflicting evidence determined all the substantive issues in this case. This included an interpretation of and all assignment of weight to Nurse Wexley's notes regarding Ms. Lawson's "attempt" to make a photo identification of Mr. Isom at the hospital, which related to whether the State committed a Brady violation; inconsistencies in Woodward's testimony concerning the photo array; and whether Frank Spain was lying in the pretrial hearing or the Rule 37 hearing with regard to the scissors that were believed to be the murder weapon.
Resolving the question of what was behind Spain's inconsistent testimony was the principle reason why this court granted Mr. Isom permission to seek a writ of error coram nobis in the first place. Yet, as the majority notes, Judge Pope severely limited discovery and improperly threatened Mr. Isom's counsel with Rule 11 sanctions when she sought to uncover evidence that would be more substantive than Spain's self-serving explanation of why his testimony in the pretrial hearing and the Rule 37 hearing are irreconcilable.
When this court reviews a decision rendered by a lower tribunal, we grant great deference to the finder of fact to resolve questions of witness credibility and the weight to be afforded conflicting pieces of evidence. However, when this deference rests on a foundation of actual or perceived bias and lack of impartiality, the legitimacy of the decision crumbles under even the most cursory scrutiny. I would reverse Judge Pope's decision not to recuse and order a new hearing by a new judge.
I respectfully dissent.
Isom received additional sentences of life for aggravated robbery, forty years for residential burglary, sixty years for attempted capital murder, and a life sentence for each count of rape. All of his sentences were ordered to be served consecutively.
At the coram nobis hearing, defense counsel testified that he could not remember whether he had the McKelvey Report in his file. Defense counsel also testified that he could not remember whether he spoke with Rick McKelvey before trial.
After the search was conducted, Green was released from jail on a pending charge. See Isom , 2015 Ark. 225, at 4-5, 462 S.W.3d at 664-65.
Isom requested the forms from April 1, 2001 to December 21, 2001.
In Williams , we stated, "In granting Williams's petition, this court necessarily found that his petition for writ of error coram nobis appeared to be meritorious. As it now stands, the circuit court reviewed the exact same record as was before this court, determined that the petition did not have merit, and denied the petition without findings of fact." 2017 Ark. 20, at 3, 518 S.W.3d at 655. Under those circumstances, we agreed with Williams's argument that the circuit court was "required to do more than deny Williams's petition without allowing discovery, holding an evidentiary hearing, or making any findings of fact." Id. , 518 S.W.3d at 655.
For clarity, we refer to Judge Pope as Prosecutor Pope when describing his role as a prosecutor.
Exhibits to Isom's motion for judicial recusal included a letter dated March 7, 1994, from Larry Norris, director of the ADC, to Jack Gillean, the Governor's executive assistant for Criminal Justice, and a letter dated April 1, 1994, from Gillean to Prosecutor Pope and Tommy C. Free, sheriff of Drew County.
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RITA W. GRUBER, Chief Judge
Appellants, the unknown heirs of Nathaniel Neal and Emaline Neal, appeal from an order of the Sevier County Circuit Court that denied their motion for summary judgment and granted the motion for summary judgment filed by appellees Jerry and Judy Pickett (the Picketts) and Professional Land Title Company (ProLand). Appellants raise five points on appeal. However, we cannot reach the merits of the appeal because the order appealed from is not a final, appealable order. Accordingly, we dismiss the appeal.
We begin with a short discussion of the history leading up to this appeal. On December 16, 2009, Dorothy Vaughn and Gail Hamilton filed a petition for quiet title against Louis Willis, Homer Willis, and the unknown heirs of Nathaniel Neal and Emaline Neal. Vaughn and Hamilton alleged that they were the rightful owners of property situated in Sevier County, had exercised exclusive dominion and control over the property by paying taxes, and had held the property adversely to any claim of the defendants or any other persons. Homer and Louis filed an answer on February 3, 2010. Vaughn and Hamilton filed an affidavit for warning order on February 23, 2010, to serve the unknown heirs. The warning order was issued on February 23, 2010, and proof of publication was filed April 22, 2010, indicating that it had been published on March 11 and 18, 2010.
At the hearing on the petition to quiet title, the trial court indicated that only two lines of heirs were present, which were the named parties. The court further suggested it could either find adverse possession and give the land to Vaughn and Hamilton, or it could split the property 50/50 between the two lines of heirs present at the hearing. The court stated that the parties may have a problem with the "other ten heirs by not having personal service ... only two heirs of the children responded." After hearing the testimony, the court found that Vaughn and Hamilton did not hold the property adversely to the other heirs. Instead, recognizing that only two lines were present, the court found that the named parties owned the "property as tenants in common, meaning 50/50." The written decree quieting title was entered September 29, 2010, and an amended decree was filed October 21, 2010, to correct an error in the legal description of the land.
In 2011, Vaughn, Hamilton, Louis Willis, and Homer Willis, along with the spouses of those who were married, sold the property to Jerry and Judy Pickett. A warranty deed was filed March 15, 2011.
On March 11, 2016, the unknown heirs of Nathaniel Neal and Emaline Neal filed a petition for relief under the same case number and caption as the original quiet-title action, which resulted in the amended order quieting title filed October 21, 2010. The petition alleged that the decree was defective because (1) it granted relief that had not been requested; (2) the court's exclusion of unnamed defendants/heirs was based on the adoption of allegations proffered to it by the named parties, i.e., that all the defendants had been properly constructively summoned but that none appeared except Homer and Louis and that all the unknown heirs were residents of Arkansas as stated in the warning order; (3) the finding that no other heirs were before the court on August 20, 2010, was factually wrong because two of the unknown heirs had participated in formal discovery, pretrial preparations, and testified at the hearing; (4) the named parties failed to apprise the court of the identity of those witnesses as being unknown heirs even when the court ruled that the unknown heirs failed to appear; (5) the parties did not apprise the court of this misunderstanding of fact after the hearing and before the entry of the amended decree; and (6) the court mistakenly found the unknown heirs failed to appear as a result of the parties misrepresentation and fraud upon the court. Based on these allegations, appellants asked that the decree be set aside based on fraud or misrepresentation under Rule 60(c)(4) of the Arkansas Rules of Civil Procedure.
An amended petition for relief was filed by the unknown heirs on May 18, 2016, adding the Picketts and ProLand to the caption, alleging in part that the Picketts and ProLand "sought to complete the fraud" by attempting to obtain title insurance to the property in order to sell it to the Picketts; that the Picketts knew that the named parties lacked clear title; and that ProLand issued the title insurance in spite of the clear defects that were known to it. On June 20, 2016, ProLand filed a "Motion to Dismiss, or in the Alternative, Answer to the Amended Petition for Relief from Judgment" and an amended pleading on August 4, 2016. The Picketts filed an answer to the amended petition on June 28, 2016, also asking that the amended petition be dismissed. Appellants filed an amendment to the amended petition for relief from judgment on May 19, 2017, further alleging that the court's 2011 findings and ruling acted as a default judgment against the appellants.
On June 26, 2017, the Picketts filed a motion for summary judgment, asserting in part that appellants had not filed a "third party complaint or any pleading asserting a claim or affirmative relief against ProLand or the Picketts." The Picketts stated, "In this case, [appellants] have not filed a pleading as defined above [ Ark. R. Civ. P. 7 & 8 ] against the Picketts and ProLand. As such, a summons to appear should not have been issued to these parties, and they should be dismissed." (Emphasis supplied.) ProLand filed a motion to adopt the motion for summary judgment filed by the Picketts. Appellants then filed a motion for summary judgment on June 29, 2017, asking the court to enter an order setting aside the amended decree quieting title, arguing that the October 21, 2010 judgment was void or voidable because the named parties failed to provide notice to the "unknown heirs" even though many names and addresses were known to the named parties and that the amended decree was induced by fraud of the named parties, which inured to the benefit of the Picketts and ProLand.
The trial court issued a letter opinion filed September 5, 2017, indicating that it was granting ProLand and the Picketts' motion for summary judgment. Appellants filed a letter with the court on September 6, 2017, requesting findings of fact and conclusions of law. In an order entered October 2, 2017, the trial court granted ProLand and the Picketts' motion for summary judgment, agreeing that they were not properly brought into the case, and denied appellants' motion for summary judgment. The order also provided that "all claims or causes of action asserted by the parties that are not specifically addressed in this Order are denied." Appellants appeal from the October 2, 2017 order.
Although the parties do not raise it, we must address whether this appeal is properly before this court. Whether a final judgment, decree, or order exists is a jurisdictional issue that we have a duty to raise, even if the parties do not, in order to avoid piecemeal litigation. Clark v. Summers, 2018 Ark. App. 225, at 3-4, 547 S.W.3d 511, 513. When the order appealed from is not final, this court will not decide the merits of the appeal. Id. Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure-Civil provides that an appeal may be taken only from a final judgment or decree entered by a circuit court. For an order to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy.
In Cannady v. St. Vincent Infirmary Med. Ctr., 2018 Ark. 35, at 10-11, 537 S.W.3d 259, 265-66, the supreme court explained:
Generally, there is no basis for the review of a denial of interlocutory orders such as motions for summary judgment. Arkansas Ins. Dep't v. Baker, 358 Ark. 289, 188 S.W.3d 897 (2004). However, interlocutory appeals may be proper if the order in effect determines the action and prevents a judgment from which an appeal might be taken. Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369 (1986). We have allowed the appeal of the denial of a summary judgment motion when the circuit court in so ruling engages in fact finding that effectively rules on a party's defense. BPS, Inc. v. Parker, 345 Ark. 381, 47 S.W.3d 858 (2001). In some situations, consideration of an appeal of the denial of a motion for summary judgment may be proper when considered in conjunction with an appeal of an order granting summary judgment in order to determine if factual disputes remain for trial. Wilson v. McDaniel, 247 Ark. 1036, 449 S.W.2d 944 (1970). However, if a review of the denied motion is not necessary to sustain the motion that was granted, an appeal is not proper.
City of North Little Rock v. Garner, 256 Ark. 1025, 511 S.W.2d 656 (1974).
The present case does not involve competing motions for summary judgment. Appellants' motion argued the reasons why the 2011 order should be set aside, and ProLand and the Picketts' motion argued that they were not properly before the court because appellants failed to file a valid pleading stating a claim against them. In addition, appellants make no argument that the trial court erred in granting ProLand and the Picketts' motion for summary judgment. The purpose of a summary judgment proceeding is not to try the issues, but to determine if there are any issues to be tried. Buie v. Certain Underwriters at Lloyds of London, 79 Ark. App. 344, 348, 87 S.W.3d 832, 835 (2002). The denial of summary judgment in this case does not fall within any of the exceptions in which an appeal from a denial of summary judgment may be allowed. Therefore, we dismiss the appeal for lack of a final, appealable order.
Appeal dismissed without prejudice.
Glover and Murphy, JJ., agree.
We note that appellants' brief failed to comply with the briefing requirements set out in Arkansas Supreme Court Rule 4-2. Even after appellants were ordered to correct the addendum upon motions of the Picketts and ProLand, the two-part, corrected addendum filed by appellants was once again deficient, containing an index with numerous incorrect page numbers. Additionally, at least one item identified in the index was not actually contained in the addendum. Further, there are citations to the addendum in the appellants' brief that do not correlate with the corrected addendum. These deficiencies made it extremely difficult for our review.
Vaughn and Hamilton stated in the complaint that they are the daughters of the deceased B.W. Willis, also known as Henry B. Willis and the grandchildren of Nathaniel Neal and Emaline Neal. Although not alleged in the complaint, it appears as though Nathaniel Neal and Emaline Neal had twelve children and died intestate. The record indicates that Louis and Homer are brothers and great-grandchildren of Nathaniel and Emaline Neal.
Although not in the record, the Picketts' brief indicates that summonses were issued to the Picketts and to ProLand. | [
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N. MARK KLAPPENBACH, Judge
Appellant Jared Jeffers pleaded guilty in Ashley County to four counts of residential burglary and one count of theft, and he was sentenced as a habitual offender. Jeffers filed a notice of appeal from the sentencing order. Jeffers contends that the circuit court lacked jurisdiction to sentence him as a habitual offender because the State's criminal information did not officially charge him as a habitual offender. Jeffers argues that his sentences are therefore illegal. We dismiss because we lack appellate jurisdiction to consider an appeal from these guilty pleas.
The facts are as follows. The State filed a criminal information listing the burglary and theft charges and setting out the possible enhanced range of sentences that would apply to habitual offenders. Subsequently, appellant and his attorney signed a plea statement that recited, "You are charged as a habitual offender. YES." The plea statement also recited the enhanced range of sentencing for each of the burglary and theft charges. Appellant affirmed that he read the plea statement before signing. The State's written plea recommendation listed the same enhanced sentencing ranges. At the plea hearing, appellant was twice told that he was subject to enhanced penalties as a habitual offender with four or more prior felony convictions. When asked if he understood the charges and "the possible penalties," appellant said yes. Appellant pleaded guilty and was sentenced to a total of thirty years in prison to be followed by an additional ten years of suspended imposition of sentence. The sentencing order reflects that appellant was sentenced as a habitual offender. This timely appeal followed.
The State argues that this is not a proper appeal of a guilty plea and should be dismissed. We agree with the State.
Arkansas Rule of Appellate Procedure-Criminal 1(a) provides that, except as provided by Arkansas Rule of Criminal Procedure 24.3(b), there shall be no appeal from a plea of guilty or nolo contendere. In Seibs v. State , 357 Ark. 331, 166 S.W.3d 16 (2004), our supreme court affirmed the well-established rule that appeals from nonconditional guilty pleas may be taken only under two well-established exceptions. The first exception is when there is a challenge to testimony or evidence presented before a jury in a sentencing hearing separate from the plea itself, and the second exception is when the appeal is an appeal of a posttrial motion challenging the validity and legality of the sentence itself. Id. Neither situation is present here. Appellant filed a direct appeal from the sentencing order entered pursuant to an unconditional guilty plea. Our review of the record reveals that neither exception is applicable. Therefore, by entering an unconditional plea of guilty, appellant waived his right to appeal, and we must dismiss. See Tubbs v. State , 2017 Ark. App. 152, 516 S.W.3d 283.
Dismissed.
Harrison and Glover, JJ., agree.
Jeffers's notice of appeal references the correct case number and the "final Order" of July 25, 2017 (the date of the guilty-plea hearing and the date on which the sentencing order was signed by the circuit judge). The notice of appeal does not recite the file-mark date on the sentencing order, August 3, 2017. It is obvious that his appeal is of the sentencing order and is timely as to that order. The notice of appeal is sufficient to establish initial appellate jurisdiction pursuant to Ark. R. App. P.-Crim. 2(a) (2017). See Jackson v. State , 2011 Ark. App. 528, 385 S.W.3d 394.
On August 30, 2017, appellant filed a petition to correct an illegally imposed sentence. Appellant did not amend his notice of appeal or timely file a new notice of appeal from the denial of that petition. | [
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KENNETH S. HIXSON, Judge
Appellant Alberto Damien Chavez appeals after he was convicted by a Sebastian County Circuit Court jury of murder in the second degree and seven counts of committing a terroristic act. Each count was additionally enhanced because the jury found that he employed a firearm during the commission of each felony. He was sentenced to serve a total of 110 years' imprisonment. On appeal, appellant contends that (1) the trial court erred in denying his motion to suppress and admitting the video of his interrogation at the Fort Smith Police Department into evidence; (2) the trial court erred in denying his motions for directed verdict; (3) the trial court erred in refusing to instruct the jury on the lesser-included offense of manslaughter; and (4) the trial court erred in substituting an alternate juror for a juror who had a health issue after deliberations had already started. We affirm.
I. Relevant Facts
In summary, appellant shot the victim, Justin Lopez, in a gang-related shooting on January 14, 2017. On that night, appellant, Ryan Oxford, Bryan Porras, and Jorge Chirinos traveled to a trailer in Fort Smith where rival gang members, Lopez and Trey Miller, were inside. The gang members fired over forty shots with an AK-47 rifle (AK-47) and an AR-15 rifle (AR-15), and one of those rounds penetrated the trailer and killed Lopez. Appellant gave incriminating statements to law enforcement about the incident during a recorded interview, and he was subsequently arrested. Appellant was charged with murder in the first degree and seven counts of committing a terroristic act. He was also charged with enhancements for employing a firearm during the commission of each felony charge.
Appellant filed a motion to suppress his statements and any resulting evidence. Appellant alleged that the statements he made to law enforcement were not voluntarily obtained and that he did not make a knowing and intelligent waiver of his Miranda rights. The State responded that appellant's statements were voluntary. The State explained that Detective Bill Hardin began the interview by going over the "Interrogation Advice of Rights" form and that appellant initialed that he understood each right and signed at the bottom of the form, indicating that he was waiving his rights. Therefore, based on the totality of the circumstances, the State contended that appellant made a knowing and intelligent waiver of his Miranda rights and that appellant's motion should be denied.
At the hearing on the motion to suppress, appellant's counsel argued that appellant claimed that he was under the influence of intoxicating substances, including alcohol, morphine, Lorazepam, and marijuana, at the time he gave his statement. Counsel additionally argued that law enforcement improperly made promises of leniency in return for appellant's statement.
Detective Anthony Parkinson testified at the suppression hearing that he developed appellant, Oxford, Porras, and Chirinos as possible suspects in Lopez's murder after he spoke with several guests at a wedding party held at the Fort Smith Convention Center. Other guests at the wedding told the detective that the four possible suspects were members of a gang named the "Slangez" and that just before the shooting, they were asking guests at the party about the whereabouts of the "Clout Boyz," a rival gang. After the shooting, Detective Parkinson interviewed appellant at the police department. Appellant was read his Miranda warnings from the "Fort Smith Police Department Advice of Rights Form." Detective Parkinson stated that appellant initialed by each of his rights and signed the bottom of the form, indicating that he was waiving his rights. Detective Parkinson admitted that he used "street language," which included using curse words, in order to make appellant feel more comfortable during the interview.
The detective denied making any promises to appellant other than the fact that he would inform the prosecuting attorney everything that appellant told him in the interview. He testified that appellant did not appear to be under the influence of drugs or alcohol at the time of the statement, nor did appellant tell him that he was under the influence of any drugs or alcohol. A video of the interview and a copy of the transcript were introduced into evidence.
After hearing the evidence and argument of counsel, the trial court denied appellant's motion to suppress. The trial court found that law enforcement did not make any promises of leniency or coerce appellant to make the statement. The trial court further found that appellant's self-serving claim that he was under the influence of drugs and alcohol lacked merit.
A jury trial was held, and several witnesses, including Trey Miller, Baldomero Hernandez, Jorge Chirinos, and law enforcement officers testified. Trey Miller testified that his friend, Lopez, was shot in a trailer that was located on the back of a piece of property in Fort Smith, Arkansas. Miller's grandmother, grandfather, sister, and nephew lived in the house that was located on the same property. Miller admitted at trial that Lopez, Roberto Aguilar, Sylvester Aguilar, and he were in a gang named "The Clout Boyz." Miller testified that on January 14, 2017, Lopez came to the trailer around 6:40 p.m. and that Lopez brought marijuana, a scale, and a shotgun with him. Two girls, Lopez's cousin (Roberto Aguilar), and Guadalupe Chavez-Rodriquez also came over to the trailer that night. Lopez sold marijuana to Aguilar and Rodriquez, and Miller admitted that he had smoked marijuana and drank beer. Miller testified that everyone, except Lopez and he, left by 9:30 p.m. that evening and that the shooting occurred about an hour or hour and a half afterwards. Miller testified that they were in the trailer when they saw a car pull up and heard someone approach. Lopez grabbed a shotgun, went toward the door, and asked who was there. Miller was able to see a "chubby guy" approaching in a gray hoodie. When no one answered, Lopez racked the shotgun. Miller testified that he saw the person take off running away from the door and heard him say "shoot, shoot, shoot, shoot." Lopez ran into the master bedroom, and Miller ran to the back of the trailer. Miller testified that he heard multiple shots and then screaming outside in what he described as celebration. Miller further testified that after the shootings subsided, he found Lopez lying on the floor in the bedroom.
Sherry McKinney testified that Trey Miller is her grandson and that Miller would stay in the trailer to hang out with his friends. McKinney explained that she woke up to the sound of gunshots around 10:30 p.m. Miller later told her that Lopez was dead. Although McKinney called the police, they were already en route, and she gave law enforcement consent to search everything in the area, including the trailer.
Jorge Chirinos testified at trial that he was a member of a gang called the "Slangez" with appellant, Oxford, Porras, and Roberto Castillo. Other names for the gang were "Slangez96," "Slangez Syndicate 96," or "S96." Chirinos testified that his gang did not get along with the "Clout Boyz," and he identified Miller and Lopez as two members of the "Clout Boyz." Chirinos further explained that Lopez had "snitched" on Porras and that Lopez's action required consequences. Chirinos testified that Oxford owned an AK-47 rifle and that Porras owned an AR-15 rifle.
Chirinos testified that on the night of the murder, he had hung out and smoked marijuana with appellant and Porras until 9:00 p.m. Porras dropped him off at his home so he could trade marijuana for beer, and Porras subsequently picked Chirinos back up around 10:00 p.m. Porras, Oxford, and appellant were with him at that time in a tan or silver Chevrolet car. They went to a wedding party at the Fort Smith Convention Center, and at the wedding party, he overheard appellant and Porras asking where the "Clout Boyz" were. Porras later said that he knew where the trailer was, and Porras drove them there. In the car, Porras instructed them to put on masks. Chirinos stated that appellant wore a Jason Halloween hockey mask and that they all wore purple bandanas, which was the "Slangez's" color. Once at the trailer, they all got out of the car. Appellant carried the AR-15, and Porras carried the AK-47. Porras opened the gate and went up to knock on the door. Chirinos testified that he could hear talking from inside the trailer but could not understand what was said. Porras turned away from the door and yelled to shoot, and Porras and appellant started shooting at the trailer. Chirinos heard Porras and appellant cheering and yelling, "Hell, yeah," and they got back in the car and drove away. They went back to Porras's home, and Porras, Chirinos, and appellant stayed there until Porras took appellant and Chirinos home around midnight or 1:00 a.m. Chirinos denied holding any of the guns that night and stated that he thought the plan was only to rob Lopez and Miller.
Baldomero Hernandez testified at trial that he knew Porras, Guadalupe Chavez-Rodriquez, and appellant through his school. Hernandez further testified that he saw appellant, Porras, and Oxford all wearing purple bandanas at a wedding party on the night of the murder.
Detective Bill Hardin testified at trial that he interviewed Trey Miller at the police department. Miller told him that he was a member of the "Clout Boyz" and that a rival gang, the "Slangez96," did not like them. The information Miller provided led to other witnesses who aided in the investigation. Other witnesses confirmed that appellant, Porras, Chirinos, and Oxford were members of "Slangez96." Detective Hardin testified that Oxford and appellant were brought in for questioning at the same time. Although Detective Hardin was initially present during appellant's interview, he later left the room to question Oxford in another room. Oxford's interview led Detective Hardin to later recover from Oxford's residence the AK-47 used in the incident, AK-47 magazines, and a purple bandana. During the investigation, Detective Hardin also found a DPMS AR-15 rifle located in Porras's residence along with AR-15 magazines, two Halloween masks, and a cell phone. The cell phone that was taken had a previously recorded video unrelated to this shooting in which appellant can be seen holding the AK-47, Porras holding the AR-15, and Oxford holding a handgun. Appellant is wearing a black hoodie in the video.
Detective Anthony Parkinson testified at trial that he was assigned to investigate the homicide. At the scene, he briefly spoke with Trey Miller. After further investigation and speaking to other witnesses, Detective Parkinson developed appellant as a suspect. He located appellant at his mother's home and took him to the police department for a recorded interview. Detective Hardin began the interview with appellant by going over the Miranda -rights form. However, Detective Hardin left to interview another suspect, Oxford, and Detective Parkinson took over appellant's interview.
According to Detective Parkinson, appellant repeatedly requested some type of deal during the interview. However, Detective Parkinson testified that he continued to tell appellant that appellant needed to tell the truth and that he (Detective Parkinson) would tell the prosecuting attorney everything appellant said. Although appellant tried to obtain some type of reassurance from Detective Parkinson that he was going to get some benefit out of the interview, Detective Parkinson stated that it was not something he was authorized to make.
Over appellant's objection, a redacted version of the video interview was played for the jury. In summary, appellant made several incriminating statements to Detective Parkinson. Appellant admitted that he went to the wedding party at the Fort Smith Convention Center the night of the murder and that he spoke with Baldomero Hernandez and Guadalupe Chavez-Rodriquez. Appellant stated that Porras, Chirinos, and Oxford were seeking information at the wedding on where they could find some "Clout Boyz." They eventually drove to the trailer, and appellant stated that everyone had a "big a* * gun" in their hands but him. Appellant stated that Chirinos had told him that the plan was to "light it up and just scare [Lopez], maybe that will send a message to the rest of them." Appellant further stated that when they arrived, he and Chirinos stayed in the car. Porras left the vehicle and went to the trailer, knocked on the door, and then returned to the car. This coincided with someone inside the trailer whistling and Porras turning around, facing the trailer, and shooting at the trailer. Appellant stated that Oxford was also shooting at the trailer. Appellant additionally stated that although he was supposed to get out to help collect the shell casings, they did not pick up the shell casings because it was muddy. Instead, appellant stated that he got out of the car to pull Porras back into the alley. After the shooting, they went back together to Porras's apartment, and appellant carried the AR-15 into the apartment. Later, Porras took appellant home.
The medical examiner testified that Lopez died from a gunshot to the head. Fragments of the bullet, including the jacket, found in the wound matched the same AR-15 recovered from Porras's apartment. Additionally, some of the shell casings found at the scene matched the AK-47 recovered from Oxford's living room. However, no fingerprints or DNA were found to link appellant to the weapons.
After the State rested, defense counsel moved for a directed verdict. As to first-degree and second-degree murder, appellant's counsel argued that there was insufficient evidence to corroborate the testimony of the accomplice that connected appellant to the offense. As to second-degree murder, counsel argued that there was insufficient evidence that appellant acted knowingly. As to the terroristic-act charges, counsel argued that there was insufficient evidence to show that appellant acted with purpose to cause physical injury to Lopez by shooting into an occupiable structure or that appellant purposely shot at the trailer with the purpose to cause serious injury or damage to property. Counsel finally argued that there was insufficient evidence to show that appellant employed a firearm. The trial court denied the motions. The defense rested without presenting any evidence, and appellant renewed all his motions for directed verdict, which the trial court denied.
Regarding jury instructions, defense counsel asked that the jury be instructed as to second-degree murder and reckless manslaughter as lesser-included offenses to first-degree murder. The State objected, and the trial court instructed the jury as to second-degree murder but refused to give a reckless-manslaughter instruction. Appellant proffered the reckless-manslaughter jury instruction for the record.
During deliberations, a question was sent by the jury to the trial court that asked what their instructions were because they had eleven jurors voting guilty of second-degree murder and one juror voting not guilty. The trial court instructed the jurors to keep deliberating and not to give any specific vote counts should they have future questions.
Subsequently, Juror No. 4 advised the bailiff that because he had anticipated being home that afternoon, he did not bring any of his insulin or glucose for his diabetic medical condition. The juror further stated that he felt faint and needed to go home. The trial court discussed with the attorneys that it would substitute Juror No. 4 with one of the two alternate jurors who were still present in the courtroom but who had not participated in the jury deliberations. Defense counsel requested that they recess until the next day. However, the trial court denied that request because the jurors had been told that it would be a three-day trial, and the court did not know what plans other juror members might have had. The trial court additionally stated that there were alternate jurors available and that there was an appropriate jury instruction for cases like this one.
Initially, Juror No. 4 had indicated to the bailiff that he would try to "tough it out." However, after additional discussion among the trial court and attorneys, the trial court brought the juror out of the jury room to inquire further about his condition. The juror stated to the trial court that he had been feeling shaky and that by his symptoms, he felt that his blood sugar had dropped. After the trial court explained that deliberations could go for several hours, it asked the juror whether he wanted to go home to take care of himself, and the juror stated that he did. Defense counsel objected and requested that the juror first be allowed to try to have his medication brought to the court before being released. The trial court overruled the objection and replaced the juror with one of the two alternates. The jury was instructed to set aside and disregard all previous deliberations and begin them all over again to allow the alternate juror the opportunity to participate fully in the deliberations.
The jury subsequently found appellant guilty of one count of murder in the second degree, a Class A felony, in violation of Arkansas Code Annotated section 5-10-103(a)(1) (Repl. 2013); one count of a terroristic act, a Class Y felony, in violation of Arkansas Code Annotated section 5-13-310(a)(2) & (b)(2) ; and six counts of a terroristic act, a Class B felony, in violation of Arkansas Code Annotated section 5-13-310(a)(1). The jury additionally found that appellant had employed a firearm during the commission of each felony. Appellant was sentenced to serve 30 years' imprisonment on the count of second-degree murder, 40 years' imprisonment on the first count of a terroristic act, and 5 years' imprisonment on each of the six remaining counts of a terroristic act. Appellant was also sentenced to serve an additional 5 years' imprisonment on each count of the felony-firearm enhancements. Thus, appellant was sentenced to serve a total of 110 years' imprisonment. This appeal followed.
II. Sufficiency of the Evidence
Although appellant does not address the denial of his motions for directed verdict until his second point on appeal, we must address such a challenge first for purposes of double jeopardy. See Sweet v. State , 2011 Ark. 20, 370 S.W.3d 510. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Starling v. State , 2016 Ark. 20, 480 S.W.3d 158. On an appeal from a denial of a motion for a directed verdict, the sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Id. In determining whether there is substantial evidence to support the verdict, this court reviews the evidence in the light most favorable to the State and considers only that evidence that supports the verdict. Id. Substantial evidence is evidence that is of sufficient force and character to compel a conclusion one way or the other beyond suspicion or conjecture. Id.
A person commits murder in the second degree if the person knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5-10-103(a)(1). A person commits the offense of a terroristic act when the person shoots at an occupiable structure with the purpose to cause injury to a person or damage to property. Ark. Code Ann. § 5-13-310(a)(2). A terroristic act is a Class Y felony if the person with the purpose of causing physical injury to another person causes serious physical injury or death to any person. Ark. Code Ann. § 5-13-310(b)(2).
A person is criminally liable for the conduct of another person when he or she is the accomplice of another person in the commission of an offense. Ark. Code Ann. § 5-2-402. An accomplice is a person who, with the purpose of promoting or facilitating the commission of an offense, solicits, advises, encourages, or coerces the other person to commit it; aids, agrees to aid, or attempts to aid the other person in planning or committing it; or having a legal duty to prevent the commission of the offense, fails to make proper effort to do so. Ark. Code Ann. § 5-2-403. When two or more persons assist each other in the commission of a crime, each is an accomplice and criminally liable, ultimately, for his or her own conduct, but the person cannot disclaim responsibility because he or she did not personally take part in every act that went to make up the crime as a whole. Meadows v. State , 2012 Ark. 57, 386 S.W.3d 470.
Furthermore, a person cannot be convicted of a felony based on the testimony of an accomplice unless that testimony is corroborated by other evidence tending to connect the defendant with the commission of the offense. Ark. Code Ann. § 16-89-111(e)(1)(A) (Supp. 2017); Foster v. State , 2017 Ark. App. 63, 510 S.W.3d 782. The corroboration must be sufficient, standing alone, to establish the commission of the offense and to connect the defendant with it; the corroboration is insufficient if it merely shows that the offense was committed and the circumstances thereof. Foster, supra. Circumstantial evidence may be used to support accomplice testimony; though it need not be so substantial in and of itself to sustain a conviction, it must, independently of the accomplice's testimony, tend in some degree to connect the defendant with the commission of the crime. Id. The test for corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Id. The presence of an accused in proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation are relevant facts in determining the connection of an accomplice with the crime. Meadows, supra.
Appellant argues on appeal that the State failed to present sufficient evidence to corroborate the accomplice testimony of Jorge Chirinos. Appellant specifically argues that the State failed to present evidence to connect him with the commission of the crimes in addition to proving the occurrence of the crime. Appellant further argues that his statements to law enforcement, if considered, establish only his mere presence at the crime scene, which is insufficient. Additionally, appellant argues that the State failed to present sufficient evidence to show that appellant was an accomplice to the alleged crimes because the evidence showed only his mere presence at the crime scene and did not show the requisite criminal intent. We disagree.
Here, even excluding Chirinos's testimony, the evidence presented at trial showed more than appellant's mere presence at the crime scene as he contends. Instead, there is ample proof of appellant's joint participation with his codefendants. Baldomero Hernandez testified that he saw appellant at the wedding party on the night of the murder with Porras and Oxford and that they were all wearing purple bandannas. Further, appellant's own statements made to Detective Parkinson connect him to the commission of the crimes. Appellant admitted the following: that he went to the wedding party; Porras, Chirinos, and Oxford were seeking information on where to find "Clout Boyz"; he rode with Porras, Chirinos, and Oxford to the trailer with everyone but him holding a gun; Chirinos told appellant that the plan was to shoot at the trailer to scare and send a message to the rival gang members inside; he was assigned the task of picking up the shell casings afterwards; he got out of the car to get Porras after the shooting; and he carried the AR-15 into Porras's apartment. This evidence connects appellant to the commission of the crimes at least as an accomplice, and when a defendant incurs criminal liability as an accomplice, the law draws no distinction between the actions of the principal and those of the accomplice. Conway v. State , 2016 Ark. 7, 479 S.W.3d 1. Therefore, appellant's own statements provided sufficient corroboration of Chirinos's testimony. Additionally, after considering Chirinos's testimony that appellant shot at the trailer with the AR-15, the jury was free to believe that appellant was not only an accomplice but was the one who had, in fact, shot the victim. Thus, after considering the evidence in the light most favorable to the State, this court cannot say that the trial court erred in refusing to grant appellant's motions for a directed verdict.
III. Motion to Suppress
Appellant additionally argues that the trial court erred in denying his motion to suppress and admitting the video of his statement made during his interview at the Fort Smith Police Department. 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. Bell v. State , 371 Ark. 375, 266 S.W.3d 696 (2007). When we review a trial court's ruling on the voluntariness of a statement, we make an independent determination based on the totality of the circumstances. Griffin v. State , 2015 Ark. 340, 470 S.W.3d 676 ; Grillot v. State , 353 Ark. 294, 107 S.W.3d 136 (2003). We review the trial court's findings of fact for clear error, and the ultimate question of whether the statement was voluntary is subject to an independent, or de novo, determination by this court. Clark v. State , 374 Ark. 292, 287 S.W.3d 567 (2008).
Appellant contends that his statement was involuntary and thus inadmissible because the police officer made certain promises to him during the interview. Our courts have adopted a two-stage inquiry for instances in which defendants allege that false promises by police officers induced their custodial statements. Kellon v. State , 2018 Ark. 46, 538 S.W.3d 206. First, we look to the nature of the officer's statement. Id. If the officer made an unambiguous, false promise of leniency, then the statement elicited from the defendant is automatically inadmissible; if the officer made no promises of leniency, the statement is admissible. Id. If the officer's statements were of an ambiguous nature, however, we proceed to the second step of the analysis to examine the defendant's vulnerability along a number of dimensions: age, education, intelligence, length of interrogation, experience with the justice system, and the delay between the defendant's receiving Miranda warnings and the statement. Id.
Appellant argues that he was vulnerable and that Detective Parkinson gave him the false impression that his cooperation would lead to his freedom. In his brief, appellant quotes several isolated statements made by the detective in the interview. Appellant alleges that the detective told him that he, the detective, "would not "f* * * him over." Also, appellant alleges that the detective said that he was trying to help him and that he would speak to the prosecutor on appellant's behalf. Appellant further alleges that because the detective asked him about his mother and family, the detective was promising him leniency. We disagree.
First, we cannot say that any of the isolated statements appellant cites made by the detective individually or collectively were unambiguous promises of leniency. For promises to be considered unambiguous offers of leniency, we have demanded a degree of specificity that is lacking here. Kellon, supra. Rather, the statements here are more similar to those made in Kellon and in Goodwin v. State , 373 Ark. 53, 281 S.W.3d 258 (2008). In Goodwin , the police officer truthfully told Goodwin that he had told the prosecutor that Goodwin was being remorseful and seemed to be telling the truth. Id. When a police officer does not represent that he or she has the power to promise a reduced sentence but agrees to tell the prosecutor that a suspect has cooperated, it does not, without more, render a subsequent statement involuntary. Id. Telling a defendant that it would be better for the defendant to tell the truth and be remorseful is not an unambiguous promise. Id.
Here, the detective told appellant that he was trying to help him by giving him an opportunity to tell the truth. The detective did inquire about appellant's mother and whether he wanted to take care of her, but the detective did not state that appellant would be able to return home to live with her. In fact, despite appellant's repeated attempts to make a deal, Detective Parkinson repeatedly told appellant that he did not have that authority and that any decision was up to the prosecutor. Just before appellant made the incriminating statements toward the end of the interview, the detective asked him again to tell the truth and to "[j]ust get it off [his] chest." In response, appellant asked whether his slate would be clean and whether he could go home after telling the truth. Detective Parkinson clearly indicated that it was the prosecutor's decision.
I'm gonna call the prosecutor, look at me, I'm gonna call the prosecutor he's gonna come down, review the video, he's gonna talk to me, I'm gonna explain to him Alberto told me the truth. He got it off his chest, his slate is clean, he has come clean, he's told us everything, 100% truthful, what do you wanna do prosecuting attorney Dan Shue. Make the decision prosecuting attorney Dan Shue. I'm going to present to him the facts, the truth, for him to make a decision on what to do. Okay? [Oxford is] telling his story, telling your story, don't let him tell your story; I want you to tell your story right now.... Don't let him paint the picture of you being a cold blooded murderer.
Therefore, the record does not reflect that the detective made an unambiguous promise of leniency meriting suppression.
Even assuming arguendo that appellant contends that the promises of leniency were of an ambiguous nature, we find no error after applying the second step of the two-stage inquiry. It does not appear from the record that appellant was vulnerable to "having his will overborne." See Kellon, supra. Going through the factors listed above, appellant was an adult, had completed his GED, had previous experience in the juvenile-justice system, and made his statements in the interview after he had received his Miranda warnings. Furthermore, immediately before appellant told his version of events, appellant acknowledged in the interview that he understood that Detective Parkinson could not promise him that he could go home.
DETECTIVE PARKINSON : That's just how it works. I'm not sure, and I don't know because I don't know anything until you tell me. I don't have the authority to sit here and say Alberto you tell me everything you know and you walk right out this door. I can't do that.
APPELLANT : You can't even assure it to me though.
DETECTIVE PARKINSON : I can't because I don't have the authority.
APPELLANT : That's what I'm saying.
....
DETECTIVE PARKINSON : Really what I wanna do is sit back and you to just tell me.
APPELLANT : I just wanna go home after this.
DETECTIVE PARKINSON : What you probably need to do is-
APPELLANT : You can't promise me that, that's my thing.
Thus, after reviewing the totality of the circumstances, we do not find that the appellant was vulnerable as contemplated by Kellon ; therefore, we cannot say that the trial court clearly erred in refusing to suppress appellant's confession.
IV. Jury Instruction-Reckless Manslaughter
Appellant further argues on appeal that the trial court erred in refusing to instruct the jury on the lesser-included offense of manslaughter. At trial, the trial court instructed the jury on first-degree murder and the lesser-included offense of second-degree murder but refused appellant's request to instruct the jury on the lesser-included offense of reckless manslaughter. Appellant proffered the instruction in our record. We have often stated that refusal to give an instruction on a lesser-included offense is reversible error if the instruction is supported by even the slightest evidence. Starling, supra. However, we will affirm a trial court's decision to exclude an instruction on a lesser-included offense if there is no rational basis for giving the instruction. Id.
Arkansas Code Annotated section 5-10-104(a)(3) states that a person commits manslaughter if the person recklessly causes the death of another person. A person acts recklessly with respect to the 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). 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).
In support of his request for the reckless-manslaughter instruction, appellant argued at trial that he told Detective Parkinson in his statement that no one intended to kill Lopez; rather, the plan was to just shoot up the area to scare the victims and send a message. The State argued both at trial and now on appeal that our supreme court in Bankston v. State , 361 Ark. 123, 205 S.W.3d 138 (2005), rejected a similar argument, and we agree. The defendant in Bankston shot four times at her estranged husband's SUV that was stopped at a traffic light. Id. She argued that she was entitled to a reckless-manslaughter instruction because it was rational to infer that she intended only to scare him. Id. Our supreme court rejected her argument because the act of firing four shots into a vehicle that she knew was occupied went beyond a gross deviation of the standard of care that a reasonable person would observe and was deliberate, not reckless. Id. Similarly, here, the evidence presented showed that at least forty shots were fired at the trailer when it was believed that some "Clout Boyz" were inside. Therefore, the actions were deliberate, not merely reckless. Thus, there was no rational basis for giving an instruction for reckless manslaughter, and the trial court did not err.
Appellant additionally argues for the first time on appeal that he was entitled to a reckless-manslaughter instruction because he had reason to believe that the victim was going to use a gun on them. However, appellant did not raise this particular argument below after the trial court had specifically asked the basis of his request for the proffered instruction, and it is therefore not preserved for our review. See Davis v. State , 2009 Ark. 478, 348 S.W.3d 553. Issues raised for the first time on appeal, even constitutional ones, will not be considered on appeal. Id. An appellant cannot change his or her grounds on appeal and is limited to the scope and nature of the objections presented at trial. Hampton v. State , 2014 Ark. 303, 437 S.W.3d 689.
V. Alternate Juror
Next, appellant argues that the trial court erred in substituting an alternate juror for a juror that had a health issue after deliberations had already started because (1) it was an abuse of discretion under the specific facts and circumstances of this case, and (2) the Rule of Criminal Procedure allowing for replacement of a juror after the start of deliberations violates his right to a twelve-person jury guaranteed by the Arkansas Constitution. We disagree.
We construe court rules using the same means, including canons of construction, that are used to interpret statutes. Williams v. State , 347 Ark. 728, 67 S.W.3d 548 (2002). Arkansas Rule of Criminal Procedure 32.3(b) provides that
[a]ny alternate juror, who has not replaced a regular juror prior to the time the jury retires to consider its verdict, shall be further instructed by the court in addition to the usual instruction regarding discussion of the case and not permitting any one to discuss the case with him or her, to remain at the courthouse during deliberation. During deliberation, should any regular juror die, or upon good cause shown to the court be found unable or disqualified to perform his or her duties, the court may order the juror to be discharged. The court may in its discretion , as an alternative to mistrial, replace such juror with the next alternate. In such event, the court shall instruct the jury to disregard all previous deliberation, and to commence deliberation anew. The trial court in its discretion may seat additional alternates as jurors in this manner as needed.
(Emphasis added.) We will not reverse a trial court's decision to excuse a juror and replace the juror with an alternate absent an abuse of discretion. Latham v. State , 318 Ark. 19, 883 S.W.2d 461 (1994). Furthermore, we will not reverse a trial court's action unless appellant demonstrates prejudice from seating the alternate juror. Id.
Appellant first argues that the trial court abused its discretion of replacing Juror No. 4 with an alternate juror for health reasons in compliance with Arkansas Rule of Criminal Procedure 32.3 because there were less restrictive alternatives available to the court and that the juror's condition was only temporary. However, appellant cites no authority as support for his argument nor does the plain language of the rule require such an analysis. Furthermore, a review of the trial transcript reflects that the trial court considered Rule 32.3, the availability of alternates, and its concern for the juror who asked to go home for health reasons. Under these circumstances, we cannot say that the trial court abused its discretion.
Appellant lastly argues that the use of Rule 32.3(b) violated his constitutional rights because it allowed more than twelve jurors to participate in the deliberations. A similar argument was made in Davies v. State , 64 Ark. App. 12, 977 S.W.2d 900 (1998). There, an alternate juror was allowed in the jury room during deliberations. Davies argued that the thirteenth juror in the room during deliberations violated his right to a trial by a twelve-person jury under the United States and Arkansas Constitutions. Id. However, we rejected his argument because he was unable to show he was prejudiced. The same is true here. Although appellant argues that the thoughts and opinions of thirteen jurors actually contributed to the verdict, the jury was specifically instructed in conformance with Rule 32.3(b) to disregard all previous deliberation and to commence deliberation anew.
Ladies and gentlemen, as you are aware, [Juror No. 4] is having some medical issues, and I have excused him. [Alternate Juror No. 1] is now going to come into your deliberations and take [Juror No. 4's] place. Since you have been deliberating on your verdicts of guilt or innocence, that has already begun, [Alternate Juror No. 1] under the law must be given the opportunity to participate fully in your deliberations. Therefore, you must set aside and disregard all your previous deliberations and begin your deliberations all over again.... You all can retire and begin your deliberations.
Jurors are presumed to be unbiased and are presumed to follow the instructions given to them by the court.
Decay v. State , 2014 Ark. 387, 441 S.W.3d 899. Thus, we affirm.
Affirmed.
Klappenbach and Whiteaker, JJ., agree.
There was evidence for the jury to consider that appellant was the one who had, in fact, shot the victim using an AR-15. The medical examiner testified that Lopez's death was caused by a bullet fired from an AR-15; the appellant carried the AR-15 into the Porras residence; and there was a previously recorded video depicting appellant holding the AR-15.
Although the State argues that this issue is not preserved because appellant failed to make this argument below, it is well-settled that a defendant's failure to object to the denial of the right to trial by jury does not constitute a waiver of that right. Grinning v. City of Pine Bluff , 322 Ark. 45, 907 S.W.2d 690 (1995).
Appellant made an additional argument in oral argument before this court. Upon questioning by our court, appellant's counsel contended that Rule 32.3(b) itself is unconstitutional as written. Because appellant failed to raise this argument below, this issue is not preserved for our review. | [
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LARRY D. VAUGHT, Judge
Charles Elliott appeals the Columbia County Circuit Court's order terminating his parental rights to his daughter, A.E. (born 4/29/2017). We affirm.
On May 14, 2017, the Arkansas Department of Human Services (DHS) received a report of child maltreatment resulting in the hospitalization of an infant, then fifteen-day-old A.E. DHS exercised emergency custody over A.E. the same day. The child-maltreatment report stemmed from the fact that newborn A.E. had been taken to the emergency room "covered in rat bites," which were severe. A.E. had approximately seventy-five to one-hundred rat bites all over her body, with most of the bites concentrated on her hands, arms, face, and head. There were "numerous bites on [her] forehead, nose, cheeks, and around [her] eyes." The most prominent injury was a three- to four-centimeter wound on her forehead where her flesh had been removed down to the layer just above her skull. Medical-care providers also observed that the diaper A.E. was wearing at the hospital contained rat droppings. The evidence revealed that the injuries had occurred while A.E. was in the care of her mother (who is not a party to this appeal) and her father, Elliott. Elliott stated that he had been woken up by A.E.'s crying at approximately five-thirty that morning, had discovered her injuries, and saw footprints that he identified as rat footprints. Yet, even though A.E. was severely injured and bleeding, Elliott and the child's mother did not immediately seek medical attention. They waited for more than five hours before taking A.E. to the emergency room.
The circuit court then held a probable-cause hearing, finding that the child should remain in DHS custody. Elliott appeared at that hearing and was named A.E.'s putative father. The court ordered DHS to provide a referral for DNA testing to establish paternity.
The court held an adjudication hearing on June 23, 2017, at which time it found that A.E. was dependent-neglected based on her mother's failure to provide the child with a safe home, adequate supervision, necessary medical attention in a timely manner, and protection from neglect. Despite having been properly served, Elliott was not present at the adjudication hearing. The adjudication order was signed on August 2, 2017, but it was not filed until July 25, 2018.
On September 15, 2017, the court recognized Elliott as A.E.'s biological father based on DNA testing. The court held a review hearing on November 3, 2017, and found that Elliott had contributed to A.E.'s dependency-neglect and was not a fit parent for the purpose of custody or visitation. The court noted that Elliott was incarcerated in the county jail pending felony charges related to the events giving rise to A.E.'s dependency-neglect case. Also on November 3, the court terminated A.E.'s mother's parental rights, and DHS filed a petition for the termination of Elliott's parental rights. The petition alleged that Elliott's parental rights should be terminated based on two statutory grounds: (1) the circuit court had found the juvenile dependent-neglected as a result of neglect or abuse that could endanger her life, pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(vi)(a) (Supp. 2017); and (2) there was little likelihood that services to the family would result in successful reunification, pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(3)(B) .
On January 5, 2018, the circuit court held a hearing on DHS's petition to terminate Elliott's parental rights. At the hearing, Dr. Karen Farst, who was involved in A.E.'s care at Arkansas Children's Hospital (Children's) and who was recognized as an expert in general pediatric medicine and child-abuse pediatric care, testified to the seriousness of A.E.'s injuries. She stated that when A.E. arrived at Children's, she was in shock, "to the point that she needed life-saving intervention." Dr. Farst testified that A.E. required a blood transfusion, wound care, and specialty care by a plastic surgeon based on the extensive injuries to her face. Dr. Farst also testified that A.E. presented at Children's with a condition called apnea, which occurs when a person stops breathing for a period of time. Dr. Farst explained that apnea will eventually cause a patient's heart to stop, "[s]o if you don't intervene on that, then it's a fatal event." Because of the apnea, A.E. had to have a breathing tube placed in her throat as a life-saving measure. Dr. Farst stated that "had [A.E.] not been taken for professional medical care, she would not have survived." These life-saving measures were necessary due to the severity of A.E.'s injuries, which were explained in detail by Dr. Farst at the termination hearing. Finally, Dr. Farst testified that A.E. could feel pain, vocalized in response to pain, and that the injuries would have taken "a prolonged period of time" to occur, meaning that the baby "definitely felt and responded" audibly to the rat bites while in Elliott's care.
A DHS caseworker testified to Elliott's many unresolved issues and discussed what services might be available to help him address those issues. For example, she testified that Elliott was currently incarcerated but that if he were somehow released that day, he would still need to find appropriate housing and employment, obtain mental-health treatment, and work a case plan addressing the issues that initially caused the child's removal from his care. The caseworker testified that, even if released that day, Elliott "would not be fit to take custody today." While the caseworker acknowledged that DHS does have the ability to provide services aimed at helping a person secure housing, employment, and mental-health treatment, she did not know of any services that would be currently available to Elliott during his incarceration that would be likely to lead to successful reunification. The caseworker also testified that she believed termination was in A.E.'s best interest because Elliott "remains detained in jail, and he can't have a child in jail," and "[i]f he were released and she was placed in his care, I am saying I believe she would be neglected further." The caseworker also stated that A.E. was highly adoptable and that DHS had numerous families waiting to adopt a child with her characteristics.
At the close of DHS's case, Elliott's attorney made an oral motion to dismiss the petition for termination of parental rights, arguing only that none of the testimony presented at the hearing linked Elliott to the injuries suffered by the child. In response, DHS argued that exhibit 2, which was before the court, contained Elliott's acknowledgement that the child was in his care at the time of her injuries. The court denied the motion. Elliott did not testify or provide any other evidence.
The court found that DHS had presented sufficient proof that termination was appropriate under both statutory grounds alleged in the petition and that termination was in the child's best interest because returning A.E. to Elliott's care would expose her to a significant risk of harm and that she has a high likelihood of being adopted. Elliott has appealed the termination of his parental rights.
The standard of review in appeals of termination of parental rights is de novo, but we reverse a circuit court's decision to terminate parental rights only when it is clearly erroneous. Ullom v. Ark. Dep't of Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000) ; Mitchell v. Ark. Dep't of Human Servs. , 2013 Ark. App. 715, 430 S.W.3d 851 ; Brewer v. Ark. Dep't of Human Servs. , 71 Ark. App. 364, 43 S.W.3d 196 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a distinct and firm conviction that a mistake was made. Wade v. Ark. Dep't of Human Servs. , 337 Ark. 353, 990 S.W.2d 509 (1999) ; Knuckles v. Ark. Dep't of Human Servs. , 2015 Ark. App. 463, 469 S.W.3d 377 ; Hopkins v. Ark. Dep't of Human Servs. , 79 Ark. App. 1, 83 S.W.3d 418 (2002).
Elliott's first argument on appeal is that the circuit court lacked subject-matter jurisdiction to enter the termination order, and that doing so violated his due-process rights because the circuit court failed to enter a timely adjudication order. Elliott's arguments are unpreserved for our review and, alternatively, are meritless. To the extent that Elliott frames this issue as a due-process violation, he failed to make that argument below, and it is not preserved for appeal. We will not consider arguments made for the first time on appeal, even constitutional arguments, because doing so deprives the circuit court of the opportunity to fully develop the issue. Mercado v. Ark. Dep't of Human Servs. , 2018 Ark. App. 164, at 8-9, 544 S.W.3d 595, 600 (finding the appellant's due-process argument unpreserved for appeal). However, Elliott also frames his challenge as a jurisdictional matter, and the Arkansas Supreme Court has previously held that subject-matter jurisdiction may not be stipulated to or waived by the parties and, "if lacking, cannot be induced simply because there was no objection." J.W. Reynolds Lumber Co. v. Smackover State Bank , 310 Ark. 342, 352, 836 S.W.2d 853, 858 (1992). If Elliott were correct in presenting this as a jurisdictional issue, lack of preservation would not be an impediment to our review. The Arkansas Supreme Court has also previously clarified, however, that a circuit court's failure to file a timely order pursuant to the deadlines set out in the Arkansas Juvenile Code is not jurisdictional. Wade v. Ark. Dep't of Human Servs. , 337 Ark. 353, 990 S.W.2d 509 (1999). Elliott acknowledges as much but argues for a change in the case law mandating that compliance with statutory deadlines is jurisdictional. Because we have no authority to override or ignore decisions of the Arkansas Supreme Court, we need not further entertain his request.
Elliott next argues that "the no reunification services order is erroneous" because DHS failed to comply with the requirements for obtaining such an order under Arkansas Code Annotated section 9-27-365. This argument has no merit because no such order was entered. The record reveals that no motion was made seeking a "no reunification services order," no hearing was held, and no order entered. However, in the November 3, 2017 review order, the court included one line stating that "reunification services were not required to be made to the family." To the extent that Elliott argues that this sentence in the review order "tainted the proceedings" regarding the termination of his parental rights, he failed to preserve that issue because he never raised it below. See Mercado , supra .
Moreover, both the testimony at the termination hearing and the findings entered by the court in its termination order reveal that the court clearly considered the availability and likelihood of success of reunification services when determining that termination was appropriate under the aggravated-circumstances ground, which required a finding that there was little likelihood that services to Elliott would result in successful reunification. The court also found that termination was warranted under section 9-27-341(b)(3)(B)(vi)(a) , the statutory ground involving neglect that endangered the child's life, which does not require any showing that DHS provided meaningful services or that further services would not likely result in successful reunification. As a result, Elliott cannot show prejudice from the court's allegedly erroneous statement in the review order that reunification services were not required because no such services were required under one of the two grounds on which Elliott's rights were terminated.
Elliott next challenges the sufficiency of the evidence supporting the court's findings that DHS had proved two independent statutory grounds for termination.
We have repeatedly held that DHS need only prove one ground for termination, so we must affirm if the evidence supports either or both of the statutory grounds at issue in this case. Martin v. Ark. Dep't of Human Servs. , 2016 Ark. App. 521, at 11, 504 S.W.3d 628, 635. Arkansas Code Annotated section 9-27-341(b)(3)(B)(vi) establishes a statutory ground for the termination of parental rights where "[t]he court has found the juvenile or a sibling dependent-neglected as a result of neglect or abuse that could endanger the life of the child, sexual abuse, or sexual exploitation, any of which was perpetrated by the juvenile's parent or parents or stepparent or stepparents." Ark. Code Ann. § 9-27-341(b)(3)(B)(vi). Elliott does not contest the fact that DHS proved that A.E.'s life was endangered. His only argument is that because paternity was not established before the incident and he was not made a party until October 20, 2017, Elliott "was not a parent" when the child was injured. This argument has no merit.
The Juvenile Code's definition of "parent" includes a man who "has been found by a court of competent jurisdiction to be the biological father of the juvenile." Ark. Code Ann. § 9-27-303(40). We have explained that "paternity relates to the biological relationship between a man and child." Ellis v. Bennett , 69 Ark. App. 227, 230, 10 S.W.3d 922, 924 (2000). The biological relationship between Elliott and A.E., which was the basis for the circuit court's finding, was present from the moment A.E. was born-the circuit court's order did not create it. The statute does not say that the abuse or neglect must be perpetrated by "someone who has been legally adjudicated to be the juvenile's parent prior to the event." It simply states "a parent," and under any plain reading of that term, Elliott was a parent from the day his child was born, even if the circuit court did not formally recognize him as such until later. We also reject Elliott's argument that such an interpretation creates an ex post facto application of the Juvenile Code. At the time of the neglect, the biological relationship between A.E. and Elliott already existed; all relevant Juvenile Code provisions were in effect; and Elliott had fair notice of the possible consequences of such neglect. We therefore affirm as to the sufficiency of the evidence supporting at least one statutory ground for termination of Elliott's parental rights.
Elliott's last point on appeal is a challenge to the court's finding that returning A.E. to his custody would expose her to a significant risk of potential harm. He argues that the court erroneously relied on his incarceration to establish the risk of harm, but he is mistaken. The DHS caseworker also testified that, if Elliott were released that very day and A.E. placed in his immediate care, the caseworker believed "she would be neglected further." The case file contained evidence that Elliott had an ongoing drug problem that contributed to his neglect of A.E. At the time of the child's removal, he tested positive for THC and admitted using a friend's prescription medications. He admitted to police that he had been using illegal drugs at the time that A.E.'s injuries occurred. Dr. Farst's report indicated that Elliott has a history of methamphetamine use, for which he had already completed a rehabilitation program prior to neglecting A.E. In addition to these problems, Elliott was incarcerated, lacked stable housing, lacked a stable income, and faced pending felony charges. Given all these factors, we see no error in the court's risk-of-harm finding, and we affirm on this point.
Affirmed.
Virden and Gladwin, JJ., agree.
Although Elliott did not renew his motion to dismiss at the close of all evidence, the Arkansas Supreme Court has explained that "[i]n a long line of cases, we have ruled that, in a nonjury trial, a party who does not challenge the sufficiency of the evidence does not waive the right to do so on appeal." Ingle v. Ark. Dep't of Human Servs. , 2014 Ark. 53, at 8, 431 S.W.3d 303, 307 (citing $15,956 in U.S. Currency v. State , 366 Ark. 70, 233 S.W.3d 598 (2006) ). This is not so for nonsufficiency-related challenges, such as Elliott's due-process argument and his claim that the court erred by ordering that no reunification services were required. In Ingle , the Arkansas Supreme Court differentiated between sufficiency claims and arguments that the court's actions were not authorized under the Juvenile Code.
Because the usual justification for the prohibition on ex post facto laws is that prior notice of the law is necessary to allow people the opportunity to conform their actions to those legal requirements, Garrett v. State , 347 Ark. 860, 865, 69 S.W.3d 844, 847 (2002), Elliott's ex-post-facto argument raises the question of whether, had he been legally designated a "parent" at the time of the neglect, he would have done something differently to prevent the child's injuries.
Elliott did not raise this point below, but because this appeal arises from a nonjury trial, we may address his best-interest argument to the extent that it is a challenge to the sufficiency of the evidence. Ingle , 2014 Ark. 53, at 8, 431 S.W.3d at 307 (citing $15,956 in U.S. Currency , 366 Ark. 70, 233 S.W.3d 598 ). | [
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RHONDA K. WOOD, Associate Justice
Appellant Carl Lee Linell seeks relief from the denial of his writ of mandamus that sought to order the Jefferson County Prosecuting Attorney S. Kyle Hunter to authorize the release of information and evidence from his criminal case from the Arkansas State Crime Lab. As we find the circuit court did not abuse its discretion and that Linell was not entitled to the writ, we affirm.
Factual and Procedural History
Linell was convicted of two counts of capital murder and one count of attempted murder in 1983, for which he was sentenced to two terms of life imprisonment without parole and twenty years' imprisonment to be served consecutively. Pursuant to Arkansas Code Annotated section 12-12-312 (Supp. 2015), on October 22, 2015, Linell wrote Hunter, and requested authorization for the State Crime Lab to release "information/documents pertaining to [his] 1983 trial[.]" Linell specifically requested "information in regard to testimony given by state witnesses concerning a pistol allegedly belonging to a Mr. James Nelson." The prosecuting attorney denied authorization of the requested information.
On June 21, 2016, Linell filed a petition for writ of mandamus with the circuit court requesting the court order Hunter to grant authorization to the Arkansas State Crime Laboratory to release the requested information and documents. Linell attached all the above-referenced correspondence to his pleading. The circuit court denied Linell's petition.
Writ of Mandamus
The purpose of a writ of mandamus in a civil or criminal case is to enforce an established right or to enforce the performance of a duty. Pritchett v. Spicer , 2017 Ark. 82, 513 S.W.3d 252. When requesting a writ of mandamus, a petitioner must show a clear and certain right to the relief sought and the absence of any other adequate remedy. Id. The standard of review on a denial of a writ of mandamus is whether the circuit court abused its discretion. Dobbins v. Democratic Party of Ark. , 374 Ark. 496, 288 S.W.3d 639 (2008). A circuit court abuses its discretion when it makes a decision that is arbitrary and capricious. Pritchett , 2017 Ark. 82, 513 S.W.3d 252.
On appeal, Linell argues that pursuant to Arkansas Code Annotated section 12-12-312 and Davis v. Deen , 2014 Ark. 313, 437 S.W.3d 694 (per curiam), he is entitled to "full access to the records and information he has sought" and that section 12-12-312"obligates the prosecuting attorney to release the information by giving [the] Arkansas Crime Laboratory (lab) permission to release the information so requested because it has nothing to do with none other than the appellant himself."
The State contends that the statutory language in section 12-12-312(a)(1)(B)(ii) no longer dictates mandatory disclosure as it had previously held in Davis and that the change in language adds a "prerequisite to disclosure." Specifically, the State contends that the language requires the prosecuting attorney to first know that the information in the documents retained by the crime lab would negate a defendant's guilt or reduce his punishment before the documents are required to be disclosed. Here, because the information Linell sought had no bearing on Linell's guilt or sentence, the State argues that the prosecuting attorney was not statutorily required to disclose the crime lab documents to Linell.
Arkansas Code Annotated section 12-12-312(a)(1)(B)(i) states that "[t]his section does not diminish the right of a defendant or his or her attorney to full access to all records pertaining to the case." When it comes to the Freedom of Information Act (FOIA), codified at Arkansas Code Annotated section 25-19-101 et. seq., this court has liberally interpreted the FOIA to promote access to public information. See Ark. Dep't of Corr. v. Shults , 2017 Ark. 300, 529 S.W.3d 628. Being mindful that section 12-12-312(a)(1)(A)(i) is an exception to the FOIA because the records, file, and information kept, obtained, or retained by the Arkansas State Crime Laboratory are privileged and confidential, the court interprets any exemptions to the FOIA narrowly and in favor of disclosure. Id.
In Davis , subsection (a)(1)(B)(i) stated that "[n]othing in this section shall be construed to diminish the right of a defendant or his or her attorney to full access to all records pertaining to the case." That language was amended by Act 892 section 1, which went into effect on July 27, 2011, and now states that "[t]his section does not diminish the right of a defendant or his or her attorney to full access to all records pertaining to the case." Ark. Code Ann. § 12-12-312(a)(1)(B)(i) (Supp. 2015). The language remains definitive that the defendant retains his right to full access of all records pertaining to the case-a right to full access which remains undisputed by all parties.
However, Linell's action was one for writ of mandamus against Prosecuting Attorney Hunter. Arkansas Code Annotated section 12-12-312 (a)(1)(B)(ii) states that:
Promptly after discovering any evidence in a defendant's case that is kept, obtained, or retained by the laboratory, and which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce the defendant's punishment, the prosecuting attorney with jurisdiction over the case shall disclose the existence of the evidence to the defendant or his or her attorney.
The language of the statute makes clear that the duty of the prosecuting attorney to disclose is mandatory upon the attorney's discovery that evidence retained by the lab "tends to negate the guilt" or would "tend to reduce the punishment" of the defendant. This is not a ministerial function that is appropriate for a writ of mandamus absent the petitioner showing that the prosecutor discovered evidence retained by the lab that met the requirements of the statute. Because the prosecuting attorney's duty to disclose is not ministerial and because Linell failed to establish a clear and certain right to the relief sought, issuance of the writ of mandamus was not appropriate. See Pritchett , 2017 Ark. 82, 513 S.W.3d 252. Accordingly, we affirm.
Affirmed.
Kemp, C.J., and Goodson, J., concur.
Baker and Hart, JJ., dissent.
Courtney Hudson Goodson, Justice, concurring.
I agree that a prosecutor's affirmative obligation to provide to defendants evidence from the crime lab that tends to negate a defendant's guilt or reduce the punishment is not ministerial, and I join the majority's opinion to affirm the circuit court. I write separately to emphasize my view that no authorization of any kind is required when the defendant is seeking crime-lab records that relate to his or her own case.
The Arkansas Freedom of Information Act (FOIA) generally provides that state records are available for public inspection and copying. Ark. Code Ann. § 25-19-105 (Supp. 2017). The FOIA does make exceptions. One such exception is a provision denying inmates the right to inspect and copy public records. Ark. Code Ann. § 25-19-105(a)(1)(B)(i). Records maintained by the Arkansas Crime Lab are more specifically addressed by Arkansas Code Annotated § 12-12-312 (Repl. 2016). In contrast to the rule that state records are generally open, records maintained by the Arkansas Crime Lab are generally privileged and confidential. However, § 12-12-312 contains exceptions that provide for the release of crime lab records in certain situations. For instance, subsection (a)(1)(A)(ii) provides that the appropriate court, prosecutor, or public defender may authorize release of crime-lab records. Subsection (a)(1)(B)(ii) places an affirmative duty on a prosecutor to disclose to the defendant or his or her attorney any crime-lab evidence that would tend to negate the defendant's guilt or reduce his or her punishment. Most importantly in this case, subsection (a)(1)(B)(i) provides that "[t]his section does not diminish the right of a defendant or his or her attorney to full access to all records pertaining to the case." As the majority notes, the statutory language is definitive that Linell retains his right to full access to all records pertaining to his case. Linell's right to his own crime-lab records is not contingent upon the authorization of a court, prosecutor, or public defender. Likewise, the prosecuting attorney's affirmative duty to disclose favorable evidence is a matter entirely separate from Linell's right to access crime-lab records pertaining to his own case.
We have previously explained that the authorization referenced in subsection (a)(1)(A)(ii) "is discretionary as it relates to releasing information to the public ," but that a defendant "has a right to access all records pertaining to his case." Davis v. Deen , 2014 Ark. 313, at 2-3, 437 S.W.3d 694, 695 (emphasis added). Linell's request to the crime lab even cited our opinion in Davis v. Deen , and it should have been granted forthwith. The prosecutor's affirmative duty set forth in subsection (a)(1)(B)(ii) to disclose favorable evidence is an obligation that exists regardless of any request made. Pursuant to subsection (a)(1)(B)(i) and Davis , Linell therefore needs no authorization to access crime-lab records for his own case but must only request them from the custodian of records for the crime lab. Upon request, the records must be provided, and any official's failure to do so would be grounds for contempt proceedings.
I concur.
Kemp, C.J. joins.
Josephine Linker Hart, Justice, dissenting.
Arkansas Code Annotated section 12-12-312(a)(1)(B)(i) (Repl. 2016) could not be clearer: "This section does not diminish the right of a defendant or his or her attorney to full access to all records pertaining to the case." Davis v. Deen , 2014 Ark. 313, 437 S.W.3d 694, is likewise clear; it upholds a defendant's right to receive the information developed by the state crime lab in his case. Accordingly, the circuit court erred in denying Mr. Linell's petition for a writ of mandamus.
The purpose of section 12-12-312 is to exempt state crime-lab information from the general disclosure requirements of the Arkansas Freedom of Information Act so as to safeguard the privacy of the defendant not hamper his defense or allow the State to secretly gather a person's information. Accordingly, the majority's construction of section 12-12-312 is not only wrong, it is Orwellian. Contrary to the majority's analysis, section 12-12-312(a)(1)(B)(ii) does not add a barrier to a defendant's obtaining information in his case. It instead imposes an affirmative duty on the State, through the prosecutor, to "promptly" disclose exculpatory evidence. It states:
Promptly after discovering any evidence in a defendant's case that is kept, obtained, or retained by the laboratory and which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce the defendant's punishment, the prosecuting attorney with jurisdiction over the case shall disclose the existence of the evidence to the defendant or his or her attorney.
Pursuant to subdivision (B)(i), a defendant has a right to the information that the state crime lab has developed in his case. This means all evidence: inculpatory, exculpatory, and inconclusive. Mr. Linell has a right to this information.
I dissent.
Baker, J., joins.
This court can affirm the circuit court's decision because it reached the right result, albeit for the wrong reason. Jones v. State , 347 Ark. 409, 64 S.W.3d 728 (2002). | [
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KENNETH S. HIXSON, Judge
Appellant Brian D. Mudd was convicted in a jury trial of felony theft by receiving, possession of methamphetamine, and possession of drug paraphernalia with the purpose to inject, ingest, or inhale methamphetamine. Mudd was sentenced as a habitual offender to three consecutive fifteen-year prison terms. Mudd now appeals, and his sole argument is that there was insufficient evidence to support the verdicts. We affirm.
The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Bohanan v. State , 72 Ark. App. 422, 38 S.W.3d 902 (2001). Substantial evidence is evidence forceful enough to compel a conclusion with reasonable certainty without resort to speculation or conjecture. Breedlove v. State , 62 Ark. App. 219, 970 S.W.2d 313 (1998). We review the evidence in the light most favorable to the State, considering only the evidence that tends to support the verdict. Morton v. State , 2011 Ark. App. 432, 384 S.W.3d 585.
Paul Murphy testified that he has a collection of old gas and oil signs from the 1940s and 1950s. He kept some of these signs under and in front of a shed at his house. One morning Murphy noticed that some of his signs were missing, and he contacted the police. Murphy told the police that an acquaintance had told him that the signs were located at a residence at 6939 McClure Road in Miller County and that there would be a red truck parked in front of the house.
Several police officers who participated in the investigation testified at trial. One of the officers testified that when Murphy called to report the stolen signs he mentioned the name "Mudd," and that the police were familiar with Mudd from previous encounters. The officer also stated that he knew Mudd lived at the McClure Road address with his roommate, Tobey McCarley.
Police officers went to the residence and found a red truck belonging to McCarley backed up to the front porch. The police immediately noticed some old gas and oil signs leaning against the front porch and partially covered by a tarp. The police knocked repeatedly on the door but got no answer. Murphy was called to the scene, and he identified the signs as belonging to him. Because some of the missing signs were not found next to the porch, the police obtained a warrant to search the house for the remaining signs.
When the police executed the search warrant, they initially did not find any occupants. However, one of the officers noticed someone hiding under the bed in a back bedroom and ordered him to come out. This person was Mudd, and he came out from under the bed as directed. The police found a rifle and a handgun under the bed where Mudd had been hiding. A marijuana cigarette was found on the nightstand in the bedroom. Mudd was handcuffed, and he told the police that someone was hiding under the couch in the living room.
The police looked under the living-room couch and found McCarley hiding there. A small baggie was under the living-room television and was partially visible. After seeing the baggie, the police obtained another warrant to search the residence for narcotics. When executing that search warrant, the police found syringes in the area where McCarley had been hiding. On the living-room coffee table were marijuana pipes, rolling papers, and a spoon containing a white residue. The baggie that was under the television was sent to the crime lab and was found to contain 0.7 grams of methamphetamine. The police did not find any additional stolen signs inside the house.
One of the police officers testified that there were surveillance cameras outside the residence. The police cars parked in front of the residence were being live-streamed on the living-room television.
The officers did not find any mail, utility bills, or any other items containing Mudd's name in the residence. The police did, however, find some work shirts bearing McCarley's name.
Mudd's only argument on appeal is that there was insufficient evidence to support his convictions for theft by receiving, possession of methamphetamine, and possession of drug paraphernalia with the purpose to inject, ingest, or inhale methamphetamine. Specifically, Mudd contends that the State failed to prove he possessed or exercised control over any of the contraband found at the residence. We disagree.
A person commits theft by receiving when he or she receives, retains, or disposes of stolen property of another person, either knowing or having good reason to believe the property was stolen. Ark. Code Ann. § 5-36-106(a) (Repl. 2013). A presumption that a person knows or believes property was stolen arises when there is unexplained possession or control by the person of recently stolen property. Ark. Code Ann. § 5-36-106(c)(1). Arkansas Code Annotated section 5-64-419(a) and (b)(1) (Repl. 2016) make it unlawful to possess methamphetamine. Arkansas Code Annotated section 5-64-443(a)(2) (Repl. 2016) makes it unlawful to possess drug paraphernalia with the purpose to inject, ingest, or inhale methamphetamine.
The State need not prove actual possession of contraband to prove possession; it may be proved by constructive possession, which is the control or the right to control the contraband. Polk v. State , 348 Ark. 446, 73 S.W.3d 609 (2002). Constructive possession can be inferred when the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Harjo v. State , 2017 Ark. App. 337, 522 S.W.3d 839. Constructive possession can also be inferred when the contraband is in the joint control of the accused and another. Id. However, joint occupancy alone is not sufficient to establish possession or joint possession; there must be some additional factor linking the accused to the contraband. Id. In such cases, the State must prove that the accused exercised care, control, and management over the contraband and that the accused knew the matter possessed was contraband. Id. Control over 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, and the ownership of the property where the contraband is found. Nichols v. State , 306 Ark. 417, 815 S.W.2d 382 (1991).
Mudd was not in actual possession of any of the stolen signs, the methamphetamine, or the drug paraphernalia. Therefore, the State had to present proof that Mudd constructively possessed these items. Because Mudd jointly occupied the residence with McCarley, there must be some additional factor linking Mudd to the contraband. We hold that the State's proof of constructive possession was sufficient.
In support of Mudd's argument, he asserts that the police found nothing in the residence bearing his name. He further asserts that none of the contraband was located in the bedroom where he was hiding.
We hold on the evidence presented that there was substantial evidence to support the jury's finding that Mudd was in constructive possession of the contraband found at the residence. Mudd had listed this residence as his address eight months earlier, and there was testimony by a police officer that he knew Mudd lived there with his roommate. Although the contraband was not found in the bedroom where Mudd chose to hide from the police, it was found in plain view in common areas in and around the house.
The fact that drugs were found in common areas of the residence has been considered a linking factor to establish constructive possession. Lueken v. State , 88 Ark. App. 323, 198 S.W.3d 547 (2004) ; Sweat v. State , 25 Ark. App. 60, 752 S.W.2d 49 (1988). In Sweat , this court found sufficient linking factors to support a finding that appellant was in constructive possession of marijuana found in his mother's home. Sweat also lived there; he was present when the search was conducted; and marijuana was found in the common areas of the house, in the refrigerator and on top of the freezer. In Sweat , drug paraphernalia was also found on the kitchen table.
In the instant case, Mudd was present in the residence when the search was conducted. The contraband was found in common areas of the house. Moreover, the contraband was in plain view. These were additional factors linking Mudd to the contraband. The baggie containing methamphetamine was under the living-room television and partially visible to officers, resulting in the officers obtaining an additional warrant to search for drugs, and the drug paraphernalia was on the living-room table. Some of the stolen signs found next to the front porch were in plain view, as the tarp was only partially covering some of the signs. The fact that Mudd was in a bedroom hiding under a bed when the search commenced does not negate the additional factors linking Mudd to the contraband. Because there was substantial evidence that Mudd was in possession of the stolen signs, the methamphetamine, and the drug paraphernalia, we affirm each of his convictions.
Affirmed.
Abramson and Virden, JJ., agree.
Mudd was also charged with simultaneous possession of drugs and firearms, but he was acquitted of that charge.
When Mudd had set up payments related to a prior conviction eight months earlier, he indicated to authorities that his address was 6939 McClure Road.
Murphy testified at trial that he paid a total of $3600 for the signs that were found leaning against the porch. Mudd makes no argument on appeal that the State failed to prove that the value of the stolen signs exceeded $1000, which is the threshold for Class D felony theft by receiving. See Ark. Code Ann. § 5-36-106(e)(3)(A) (Repl. 2013). | [
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KENNETH S. HIXSON, Judge
Appellant Zion Woods was charged in the criminal division of circuit court with three counts of committing a terroristic act and one count of possession of a handgun by a minor (second offense), in addition to a firearm enhancement for employing a firearm in the commission of a felony. Zion was sixteen years old when the information was filed. Zion's codefendant K.D., also a minor, was also named as a defendant in the criminal information.
Zion filed a motion to transfer the case to the juvenile division of circuit court. K.D. also filed a motion to transfer. After a hearing on these motions, the trial court entered an order denying Zion's motion to transfer, making written findings in support of its decision.
Zion now appeals from the order denying his motion to transfer to juvenile court. On appeal, Zion argues that the trial court's denial of his motion to transfer was clearly erroneous. We affirm.
Under Arkansas law, a prosecuting attorney has discretion to charge a juvenile sixteen years of age or older in the criminal division of circuit court if the juvenile has engaged in conduct that, if committed by an adult, would be a felony. Ark. Code Ann. § 9-27-318(c)(1) (Repl. 2015). On the motion of the court or any party, the court in which the criminal charges have been filed shall conduct a hearing to determine whether to transfer the case to another division of circuit court having jurisdiction. Ark. Code Ann. § 9-27-318(e). The moving party bears the burden of proving that the case should be transferred to the juvenile division of circuit court. Kiser v. State , 2016 Ark. App. 198, 487 S.W.3d 374. The trial 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). Clear and convincing evidence is that degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. Z.T. v. State , 2015 Ark. App. 282. We will not reverse a trial court's determination of whether to transfer a case unless the decision is 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 firm conviction that a mistake has been committed. Id.
At a juvenile-transfer hearing, the trial court is required to consider all of the following factors:
(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). Pursuant to Arkansas Code Annotated section 9-27-318(h)(1), a trial court shall make written findings on all of the factors set forth above. However, there is no requirement that proof be introduced against the juvenile on each factor, and the trial court is not obligated to give equal weight to each of these factors in determining whether a case should be transferred. K.O.P. v. State , 2013 Ark. App. 667.
Officer Troy Dillard of the Little Rock Police Department testified at the transfer hearing. Officer Dillard testified that on May 4, 2017, an emergency call was received regarding shots fired at an apartment complex. When officers arrived, they discovered that there were bullet strikes to the interior of three apartments. There were a total of ten people occupying these three apartments, including six minors, and fortunately the gunfire did not hit anyone. One of the apartment residents advised the police that, after the shooting, she saw a black male standing in a backyard that was adjacent to the apartments.
The police went to the adjacent residence to investigate, and they saw a black male run inside the house. The police made contact with the woman who lived there, who was K.D.'s guardian. The woman gave consent to enter the house, and both K.D. and Zion were found inside the house and were detained by the police. The police found several spent shell casings in the backyard. There was a Buick LaSabre that belonged to Zion's mother parked at the residence, and after obtaining a search warrant, the police found ammunition in the car. After the police arrested and Mirandized the suspects, K.D. gave a statement, but Zion laughed and said he had nothing to talk about.
The State introduced a photograph from a Facebook post showing Zion pictured with six other individuals. According to Officer Dillard, some of these individuals were known gang members and some of the persons in the photograph, including Zion, appeared to be "throwing gang signs" with their hands.
Jennifer Baptist testified that she was Zion's juvenile-probation officer. Prior to the current charges, Zion had been adjudicated delinquent for minor in possession of a handgun and was on an indeterminate period of probation. According to Ms. Baptist, Zion had complied with some of his probation requirements but had failed to complete anger management and had twice tested positive for marijuana.
Ms. Baptist indicated that Zion was doing well in school in advanced classes. She also indicated that there were other services available to him in the juvenile system, including an ankle monitor, case management, boot camp, and commitment to the Department of Youth Services. Ms. Baptist thought that Zion could be helped, and she recommended that the case be transferred to juvenile court.
K.D. testified that he knew Zion from school and that they were together on the day the shots were fired. K.D. stated that he was riding in Zion's car and he saw that Zion had a handgun. Zion drove to the residence where K.D. had been living with his godmother for the past few months. According to K.D., they went into the backyard and Zion began shooting multiple times at a tree. Then Zion gave the gun to K.D., and K.D. shot at the tree. K.D. maintained that, when they fired the shots, they did not see the apartments that were behind the backyard. He did acknowledge, however, that he told Zion there were apartments there after they were done shooting. K.D. indicated that neither one of them intended to shoot at the apartments and that the bullets striking the apartments was accidental.
Zion's grandmother testified for the defense. She indicated that Zion attended Parkview High School, was a good student, and also worked part-time at a movie theater. She stated that this latest arrest got his attention and that Zion apologized to both her and Zion's mother. She further stated that Zion is not allowed to "run around a lot without supervision."
Zion also introduced letters written in his support by two of his school teachers and a school counselor. These letters portrayed Zion as an intelligent and hardworking student with potential and a bright future.
In the trial court's order denying Zion Woods's motion to transfer, the trial court made written findings on the factors enumerated in Arkansas Code Annotated section 9-27-318(g). The trial court found:
(1) The seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court. The Court notes that both defendants are charged with serious offenses- A.C.A. § 5-13-310(a)(2) & (b)(1) Terroristic Act-Occupiable Structure Class B Felony with a punishment range of five (5) years to twenty (20) years and A.C.A. 5-73-119(a)(1) Handgun-Possession by Minor Class D Felony with a punishment range of zero (0) years to six (6) years.
(2) The alleged offenses were not committed in a violent, aggressive, or premeditated manner but were committed in a willful manner.
(3) The alleged offenses were committed against property and not persons.
(4) The culpability of Woods is confirmed by the testimony of his co-defendant. K.D. testified that Woods had possession of the firearm; Woods presented the idea of firing the weapon; Woods fired the weapon several times towards the tree; and Woods had last possession of the gun before arrest. K.D.'s culpability is the same in that K.D. fired the weapon two to three times toward the tree but the gun did not belong to K.D. and shooting at the target was not K.D.'s idea.
(5) Considering the previous history of the juveniles, including whether the juvenile has 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 violence, the Court finds that Woods has such a history. Woods has been adjudicated as a juvenile involving possession of a handgun in a reasonable proximity (less than two years) to this current charge. Woods has been photographed with known persons of gang affiliations. Woods was under juvenile probation supervision at the time these alleged offenses occurred. K.D. has no previous history as a juvenile offender.
(6) Considering the sophistication or maturity of the juveniles as determined by his home, environment, emotional attitude, pattern of living, or desire to be treated as an adult, Woods does not show any emotional instability or deficits. There is no evidence that Woods is unsophisticated or immature. Letters from Woods' teachers show that Woods can function at an AP level educationally. According to testimony, Woods now lives with his grandmother Linda Hooks. Ms. Hooks testified that Woods holds a stable job at the Rave movie theater, often takes on co-workers' shifts, and has a curfew but could not give the precise time of the curfew in her own home. Ms. Hooks testified that Woods generally didn't get in trouble but simultaneously was not aware of several arrests and disciplinary actions at school concerning Woods. K.D. by testimony is slightly older than Woods, appeared sophisticated, was photographed holding a gun prior to incident, but did not have a previous history with handling guns and had not shot a gun before this incident.
(7) Considering 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, the Court finds that K.D. has never been through Juvenile Court or been under its probation supervision and will likely be rehabilitated through its programs before his twenty-first birthday. As to Woods, the Court finds that there are programs available but are not likely to rehabilitate Woods before his twenty-first birthday. Past performance in the programs available is an inclination of Woods' future behavior. Woods was given the opportunity to benefit from Juvenile programs but chooses not to and does not appear inclined to participate. At the juvenile level, Woods did not complete an anger management course as ordered by juvenile court, failed drug tests while under juvenile supervision, and picked up new charges while under juvenile supervision. When the Defendant picked up new charges, Woods' juvenile supervision was closed out and no further action was taken by Juvenile Court. The programs recited by Probation Officer Baptist included GPS ankle monitoring, more intensive case management, C-Step or DYS. GPS monitoring and case management will not stop Woods from obtaining, possessing, or using a handgun or being wherever Woods wants to be.
(8) Mr. Woods and K.D. acted together and not alone.
(9) Considering the written reports and other material submitted related to Woods' mental, physical, educational, and social history shows that Woods earned good grades at a science magnet high school. Specifically, he earned high grades in courses related to physics. Firearms operate on physics. He has great grades in grammar. Woods' social history includes a previous weapons charge. Woods has a record of being in the presence of handguns and allegedly discharging handguns in a neighborhood. K.D., as exhibited during testimony, does not appear to suffer from any deficits. K.D.'s social history does not include a prior record of any criminal activity.
After consideration of the aforementioned factors and evidence presented, the Court finds by clear and convincing evidence that Mr. Woods' transfer request is DENIED and K.D.'s transfer request is GRANTED for the reasons stated above.
In this appeal, Zion argues that the trial court clearly erred in denying his motion to transfer the case to juvenile court. In support of his argument, Zion states that three of the statutory factors weighed in his favor. Zion notes that the trial court found that the offenses were not committed in a violent, aggressive, or premeditated manner; that the offenses were not against people but property; and that the written reports showed that Zion earned good grades at school. Zion further asserts that, in denying his transfer motion, the trial court failed to address K.D.'s testimony that neither K.D. or Zion intentionally shot at the apartments and that it was an accident that any of the apartments were struck by the gunfire. For these reasons, Zion asks that we reverse the trial court's order and remand for the charges to be transferred to the juvenile division of circuit court.
Based on our review of the record, we conclude that the trial court's decision denying Zion's transfer motion was not clearly erroneous. While there were some factors tending to favor juvenile jurisdiction, the trial court weighed these factors against the other factors that favored jurisdiction in the criminal division of circuit court. The trial court is not required to give equal weight to each of the statutory factors, and it may use its discretion in deciding the weight to be afforded each factor. Kiser, supra.
As found by the trial court, the charges against Zion were serious and involved the discharging of a firearm in a residential neighborhood. Multiple shots struck the interior of nearby apartments where several people were present. Although Zion's codefendant stated that they did not know the apartments were there, it was for the trial court to assess the credibility of this statement. At the time of these offenses Zion was on probation for having previously possessed a handgun, and during his probation he failed to complete anger management and failed two drug tests. The trial court found that Zion was not unsophisticated or immature, noting that he functioned at an accelerated level academically and held a stable job. We are not left with a firm and definite conviction that the trial court made a mistake in denying appellant's motion to transfer the case to juvenile court. Accordingly, we affirm the trial court's order.
Affirmed.
Abramson and Virden, JJ., agree.
In the same order, the trial court granted K.D.'s motion to transfer. K.D. is not a party to this appeal. | [
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PHILLIP T. WHITEAKER, Judge
Appellants Ida King and Kenneth Caldwell ("King and Caldwell") appeal a Pulaski County Circuit Court order dismissing their complaint for ejectment against appellees Leslie and Karen Jackson. For the reasons set out below, we reverse and remand.
King and Caldwell claim to be the owners of land located in Pulaski County. The Jacksons claim ownership interest in a partial tract of the same land. Both parties trace their purported ownership interest back to Elbert Caldwell. Elbert is the father of King and Caldwell. Elbert is the purported seller of the interest purchased by the Jacksons.
Elbert and his wife purchased some property in Pulaski County, Arkansas. The property encompassed by the warranty deed, dated August 14, 1958, was more particularly described as:
All of Tract 4 and all of Tract 3, Except that part of Said Tract 3 which lies North of Upper Hot Springs Highway, in MARION ACRES ADDITION to Little Rock, Arkansas, subject to an easement 20 ft. in width along the East side thereof for road right-of-way.
The warranty deed did not specify the aggregate amount of property purchased.
In 1995, the Jacksons entered into some type of business transaction with Elbert. The Jacksons contend that the business transaction was a sale of land. King and Caldwell contend that the business transaction was a ten-year lease. Nevertheless, the Jacksons took possession of approximately three of the acres purportedly conveyed to Elbert Caldwell in 1958. They initially placed a mobile home on the property, which burned down in 1997. Afterwards, the Jacksons constructed a 1400-square-foot home on the property over the next ten to twelve years.
In 2008, Elbert issued two deeds to King and Caldwell. The first was a warranty deed dated May 5, 2008 (Warranty Deed).
The second was a correction deed dated August 6, 2008 (Correction Deed). The Correction Deed described the property as:
All of Tract 4 and all of Tract 3 of Marion Acres Addition, Pulaski County, Arkansas, more particularly described as follows to-wit with the following EXCEPTIONS:
(1) Beginning at a point which is 20 feet west of the point where the south side of the right-of-way of the Upper Hot Springs Highway intersects the east side of Tract 3 MARION ACRES ADDITION to Little Rock, thence west 104.4 feet, thence south 417 feet, thence east 104.4 feet, thence north 417 feet to the point of beginning, containing one acre, more or less.
(2) East 125 feet of that part of Tract 3 Marion Acres Addition to Little Rock, Arkansas, lying South of Upper Hot Springs Highway, less and except the East 20 feet thereof for Road.
(3) A Part of TRACT # 3, MARION ACRES ADDITION, to the City of Little Rock, Arkansas, lying South of the Upper Hot Springs Highway, and more particularly described as follows: Beginning at a point which is 125 feet West of the Southeast corner of said TRACT # 3, MARION ACRES ADDITION, and run thence West 50 feet; thence North to the South r/w line of the Upper Hot Springs Highway, a distance of 50 feet, more or less, to a point which is due North of the point of beginning; thence South to the point of beginning.
(4) Part of Tract 4, Marion Acres Addition to the City of Little Rock, more particularly described as follows: Beginning 125 feet W of SE corner of Tract 4, thence West 105 feet, thence North 625 feet, thence East 105 feet, thence south 625 feet to point of beginning, containing 1.5 acres more or less;
(5) Beginning at a point which is 20 feet west of the point where the southside of the right-of-way of the Upper Hot Springs Highway intersects the East Line of Tract 3, Marion Acres Addition, thence South 342 feet to the point of beginning, from the point of beginning thus established proceed West 154.4 feet, thence South 75 feet, thence East 154.4 feet, thence North 75 feet to the point of beginning.
The Correction Deed did not convey the entirety of the property described in the 1958 deed, and like the 1958 warranty deed, it did not give any indication as to the amount of property being conveyed.
Elbert died in 2009. In October 2010, King and Caldwell sent notice to the Jacksons (1) claiming ownership of the land, (2) advising the Jacksons that their ten-year lease of the property had expired in 2006, (3) revoking and rescinding any further permissive use of the property by the Jacksons, and (4) demanding they remove within thirty days of the letter any and all encroachments they had created. The Jacksons did not respond to the letter or vacate the property.
In January 2011, King and Caldwell filed a complaint against the Jacksons for trespass and ejectment in the Pulaski County Circuit Court. In their complaint, they alleged ownership of the subject property as described in the Correction Deed from Elbert. They alleged that the Jacksons had entered into a verbal ten-year lease agreement with Elbert and that the agreement contained an option to buy the property for $6,000. King and Caldwell claimed the lease expired in 2006 without the Jacksons' renewing the lease or paying any sums toward the lease. They further alleged that the Jacksons built a permanent dwelling on the property without Elbert's written permission. Finally, they alleged that they had rescinded any permissive use of the property by virtue of an October 21, 2010 letter and that the Jacksons had refused to vacate the property.
The Jacksons answered the complaint, denying that they had entered into a ten-year lease with Elbert. Instead, they asserted that they had entered into an agreement to purchase the land "described in the complaint" for $6,000 and that they completed the purchase of the property on November 8, 1996, when they paid Elbert the balance of $4,550 owed on the property. As proof of payment, they attached a handwritten receipt purportedly signed by Elbert. The Jacksons admitted that they did not have a deed to the three acres but claimed that Elbert never provided them with a deed to the land because he could not afford to have a survey conducted. The Jacksons admitted building a home on the property after the mobile home burned but asserted that Elbert was well aware of the construction and had visited the site to observe the progress. Although they did not file a counterclaim, the Jacksons stated that they began paying the taxes on the property in 1996 but claimed they paid Elbert rather than the Pulaski County Treasurer because the entire six-acre parcel was still in Elbert's name. Finally, they claimed that Elbert deeded the property to King and Caldwell because he was afraid the property would get caught up in a potential lawsuit and that Elbert had assured them that King and Caldwell would have the property surveyed and would convey clear title to them.
A bench trial was held on January 17, 2012, during which Caldwell, King, and the Jacksons each testified regarding their claimed interests in the property. After the hearing, the trial court issued an order concluding that King and Caldwell had "failed to show that they are entitled to have the [Jacksons] ejected from the property" and dismissing their complaint for ejectment. King and Caldwell appealed, and we reversed and remanded because it was unclear from the trial court's order whether it had dismissed the claims on an appropriate basis. King v. Jackson , 2015 Ark. App. 588, at 6, 474 S.W.3d 83, 87.
On remand, the trial court again denied King and Caldwell's petition for ejectment. First, the trial court found that King and Caldwell had failed to establish that they were entitled to possess the three acres at issue because the Correction Deed did not provide a total aggregate acreage to show that the conveyance included all six acres of the tract. The court then held that the Jacksons had proved they purchased three acres of the property by virtue of an oral contract and that their partial performance of the contract took the matter out of the statute of frauds. Finally, the trial court held that King and Caldwell were estopped from denying that the Jacksons held legitimate evidence of their right to possession. As a result, the trial court denied their action for ejectment, holding that King and Caldwell had failed to meet their burden by a preponderance of the evidence that they were legally entitled to possess the three acres of the property that was the subject of the ejectment actions and that they had failed to show that they were entitled to have the Jacksons ejected from the property.
King and Caldwell again appeal the trial court's decision, alleging that it erred (1) in its application of the burden of proof in finding that they had not established a right of possession of the property; (2) in finding that they had failed to establish title to the property; (3) in finding that the Jacksons had a right of possession of the property; and (4) in holding that they were estopped from denying the Jacksons' right of possession.
In order to sustain an action in ejectment, the plaintiff must establish that he or she is legally entitled to possession of the property. Ark. Code Ann. § 18-60-201 (Repl. 2003). The plaintiff must succeed, if at all, on the strength of his or her own title and cannot depend on the weakness of the defendant's title. Dorey v. McCoy , 246 Ark. 1244, 1248, 442 S.W.2d 202, 204 (1969) ; Knight v. Rogers , 202 Ark. 590, 151 S.W.2d 669 (1941) ; Bunch v. Johnson , 138 Ark. 396, 211 S.W. 551 (1919). However, when a plaintiff establishes legal title in himself or herself and thereby makes a prima facie showing that he or she is entitled to possession of the property, the burden then shifts to the defendant to defeat the legal title. See Buckhannan v. Nash , 216 F.Supp. 843, 846 (E.D. Ark. 1963) (citing Foster v. Elledge , 106 Ark. 342, 153 S.W. 819 (1913) ; Weaver v. Rush , 62 Ark. 51, 34 S.W. 256 (1896) ).
Here, the trial court erred in holding that King and Caldwell failed to establish a prima facie case of legal title to the property. At trial, King and Caldwell introduced into evidence a correction deed purporting to cover the property in dispute. Clearly, a deed constitutes prima facie evidence of title, and King and Caldwell produced a deed at trial. The Jacksons never disputed, argued, or presented any evidence to suggest that the three acres at issue were not contained in the legal description provided in the Correction Deed. To the contrary, the Jacksons argued that the Correction Deed conveyed the three acres in question to King and Caldwell, but because they had purchased the three acres from Elbert prior to the conveyance to King and Caldwell, the three acres actually belong to them. Thus, the trial court's ruling that King and Caldwell failed to establish a prima facie case of legal title to the property was clear error.
Once King and Caldwell presented a prima facie showing of legal title, then the burden shifted to the Jacksons to either defeat legal title by showing that the King and Caldwell deed was void, invalid, or did not otherwise encompass the land in question or show that the Jacksons had superior title or right of possession to it. Because the trial court erred in finding that King and Caldwell failed in their burden of proving a prima facie case of legal title, the remaining analysis is tainted. Therefore, we reverse and remand for a correct analysis of the shifting burden. Because we reverse and remand for reconsideration of the evidence, we need not address issues two and three.
As for the last issue, King and Caldwell argue that the trial court was clearly erroneous in its finding that they were estopped from denying the Jacksons' right of possession. Estoppel in pais is the doctrine by which a person may be precluded by his or her acts or conduct, or by failure to act or speak under circumstances in which he or she should do so from asserting a right that the person otherwise would have had. Sterne, Agee & Leach, Inc. v. Way , 101 Ark. App. 23, 27-28, 270 S.W.3d 369, 374 (2007). The elements of equitable estoppel are (1) the party to be estopped must know the facts; (2) the party to be estopped must intend that his or her conduct shall be acted on or must so act that the party asserting estoppel has a right to believe the other party so intended; (3) the party asserting estoppel must be ignorant of the facts; and (4) the party asserting estoppel must rely on the other's conduct to his or her detriment. Id. (citing King v. Powell , 85 Ark. App. 212, 148 S.W.3d 792 (2004) ). A party who by his or her acts, declarations, or admissions, or by the failure to act or speak under circumstances in which the party should do so, either with design or willful disregard of others, induces or misleads another to conduct or dealings that the person would not have entered upon, but for such misleading influence, will not be allowed because of estoppel, afterward to assert his or her right to the detriment of the person so misled. Id. However, there is no estoppel in the absence of a change of position in reasonable reliance. Id. Whether there has been actual reliance and whether it was reasonable are usually questions for the trier of fact. Id.
In finding that King and Caldwell were estopped from denying the Jacksons' possession of the property in question, the trial court specifically found that King and Caldwell had failed to present evidence that they (1) were unaware that the Jacksons occupied the property; (2) objected to the occupancy of the property by the Jacksons; and (3) purchased the entire six-acre tract from Elbert because the correction deed did not indicate an aggregate total acreage. However, King and Caldwell did present evidence at trial that they were aware that the Jacksons occupied the property and that they had sent the Jacksons a letter objecting to their occupation of the property and ordering them to vacate. Moreover, the Jacksons agreed at trial that the property they occupied was within the six acres that Elbert once owned and that had been conveyed to King and Caldwell. Thus, the facts the trial court relied on to support its estoppel ruling are clearly erroneous. On remand, the court may reconsider the Jacksons' estoppel claim based on the evidence presented.
Reversed and remanded.
Vaught and Murphy, JJ., agree.
This is the fourth time this case has been before us. The first two times, the appeal was dismissed for lack of a final order. King v. Jackson , 2014 Ark. App. 488, 2014 WL 4748473 (failure to dispose of outstanding claim for trespass); King v. Jackson , 2013 Ark. App. 264, 2013 WL 1775731 (voluntary dismissal of trespass claim without prejudice not sufficient). The third time we reversed and remanded because it was unclear from the circuit court's order whether it had dismissed the claims on an appropriate basis. King v. Jackson , 2015 Ark. App. 588, 474 S.W.3d 83.
This Warranty Deed is referenced in the Correction Deed, as appearing of record in the office of the recorder of Pulaski County, Arkansas, as Instrument No. 2008030575. The Warranty Deed itself was not introduced into evidence and is not a part of our appellate record.
The Correction Deed listed "Kenneth Elbert Caldwell" as the grantor and "Ida Marie King and Kenneth Elbert Caldwell" as the grantees.
The receipt noted the date of the transaction, the address of the property, "20427 Col. Glenn Road, Little Rock, Ar 72210," and the payment made of $4,550 received from "Leslie and Karen Jackson" for "Balance on land - 3 acres." | [
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JOHN DAN KEMP, Chief Justice
Appellant Vernon Robinson appeals from the Ashley County Circuit Court's order denying him a resentencing hearing and imposing a sentence of life with parole eligibility pursuant to the Fair Sentencing of Minors Act of 2017 (FSMA or "the Act"). We reverse the circuit court's order and remand for resentencing in accordance with our decision in Harris v. State , 2018 Ark. 179, 547 S.W.3d 64.
I. Facts
In 1983, Robinson pleaded guilty to the capital murder of Alice Mosley. The crime carried a mandatory statutory penalty of death or life imprisonment without parole. See Ark. Stat. Ann. § 41-1501(3) (Repl. 1977). Robinson was seventeen years old at the time of the murder, and he received a sentence of life without parole. In 2012, the Supreme Court of the United States held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." Miller v. Alabama , 567 U.S. 460, 479, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The Court further held that defendants who committed homicide crimes as juveniles and faced a sentence of life without parole were entitled to a sentencing hearing that would permit a judge or jury to consider the individual characteristics of the defendant and the individual circumstances of the crime as mitigating factors for a lesser sentence. Id. at 489, 132 S.Ct. 2455.
Following the Supreme Court's decision in Miller and this court's decision on remand in Miller 's companion case, Jackson v. Norris , 2013 Ark. 175, 426 S.W.3d 906, Robinson petitioned for writ of habeas corpus in the Lincoln County Circuit Court and argued that his sentence was unconstitutional. On June 27, 2016, the circuit court granted Robinson's petition, vacated his sentence, and remanded his case to the Ashley County Circuit Court for resentencing. The circuit court had yet to conduct a Miller hearing, however, when the Arkansas General Assembly passed the FSMA, which, among other things, eliminated life without parole as a sentencing option for juvenile offenders and extended parole eligibility to juvenile offenders. Although Robinson's sentence had been vacated before the FSMA was enacted, the circuit court nevertheless relied on the Act's provisions in resentencing him to life with the possibility of parole after thirty years. On appeal, Robinson challenges the circuit court's application of the FSMA to his case.
II. Juvenile Sentencing
In Harris , 2018 Ark. 179, 547 S.W.3d 64, this court considered whether the FSMA's penalty and parole-eligibility provisions apply to a defendant whose sentence had been vacated before the FSMA was enacted. We held that the penalty provisions of the FSMA are not retroactive; therefore, the revised punishment for juveniles convicted of capital murder applies only to crimes committed on or after March 20, 2017, the effective date of the FSMA. Id. at 14, 547 S.W.3d at 71. Further, we held that the parole-eligibility provision did not apply at the time of Harris's hearing because "by its plain language, the provision applies only to those juvenile offenders who are serving a sentence for either capital or first-degree murder." Id. at 11, 547 S.W.3d at 70. Because Harris's sentence was vacated in 2016, he was no longer serving a sentence to which parole eligibility could attach. Thus, the parole-eligibility provision did not apply to Harris at the time of his May 8, 2017 hearing.
The facts in this case are analogous to those in Harris . Robinson, like Harris, committed his crime before the effective date of the FSMA; therefore, the penalty provisions do not apply. Robinson's sentence, like Harris's sentence, was vacated by the circuit court in 2016. Thereafter, Robinson, like Harris, was no longer serving a sentence to which parole eligibility could attach. Accordingly, the parole-eligibility provision of the FSMA did not apply to Robinson at the time of his July 24, 2017 hearing.
Based on our decision in Harris , we hold that the circuit court erred in applying the FSMA to Robinson's case. Robinson is entitled to a hearing to present Miller evidence for consideration and sentencing within the discretionary range for a Class Y felony, which is ten to forty years or life. See Ark. Code Ann. § 5-4-401(a) (Repl. 2013); Harris , 2018 Ark. 179, 547 S.W.3d 64 ; Jackson , 2013 Ark. 175, 426 S.W.3d 906.
Reversed and remanded.
Hart, Wood, and Wynne, JJ., concur.
Womack, J., dissents.
Josephine Linker Hart, Justice, concurring.
I agree with the disposition of this case. However, in my view, Robinson as a Miller defendant must have a sentencing hearing because this court has already determined that he was entitled to such a hearing. Kelley v. Gordon , 2015 Ark. 277, 465 S.W.3d 842. In Gordon , we held that all juvenile offenders sentenced to an unconstitutional mandatory sentence of life without the possibility of parole were entitled to a new sentencing hearing as "as a matter of fundamental fairness and evenhanded justice." 2015 Ark. 277, at 6, 465 S.W.3d at 846. Thus, Robinson's entitlement to a sentencing hearing had already accrued prior to the passage of the Fair Sentencing of Minors Act. The separation of powers embodied in the Arkansas Constitution precludes the legislature from nullifying this court's decision in Gordon . Ark. Const. art. 4, § 2.
In Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), the Supreme Court held that the rule in Miller is substantive constitutional law that must be given retroactive effect. I am mindful that the Montgomery Court nonetheless went on to state
[g]iving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. See, e.g. , Wyo. Stat. Ann. § 6-10-301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity-and who have since matured-will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.
Montgomery , 136 S.Ct. at 736. Accordingly, had this court not handed down its decisions in Jackson v. Norris , 2013 Ark. 175, 426 S.W.3d 906, and Kelley v. Gordon, supra , enacting the Fair Sentencing of Minors Act may have obviated the need for resentencing hearings for Miller defendants. Such appears to have been the case in Wyoming, whose legislature passed the statute that the Montgomery Court cited with approval. However, the fact remains that this court did act, and our decisions in Jackson and Gordon settled the issue. The separation-of-powers doctrine prohibits the legislature from supplanting our decisions.
See Act of Mar. 20, 2017, No. 539, 2017 Ark. Acts 2615.
Robinson was born on January 31, 1966. The offense was committed on April 29, 1983.
In Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), the Supreme Court of the United States indicated that states could remedy Miller violations by extending parole eligibility to juveniles serving unconstitutional sentences. Id. at 736. In 2017, the legislature passed the FSMA.
See FSMA, No. 539, § 3, 2017 Ark. Acts at 2617 (codified at Ark. Code Ann. § 5-4-104(b) (Supp. 2017) ); § 6, 2017 Ark. Acts at 2618-19 (codified at Ark. Code Ann. § 5-10-101(c)(1)(B) (Supp. 2017) ).
The State urges us to overrule our decision in Harris . We decline to do so. | [
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Charles's second point on appeal is that the circuit court abused its discretion in excluding an order of appointment of emergency temporary guardian of AF (order of appointment). When Charles's counsel sought to introduce the order or appointment, the State objected based on relevance. The circuit court sustained the objection. In response, Charles's counsel stated:
Judge, I'm going to proffer this as Defendant's 4 and the relevance is that the officer's testimony was that nothing else was done after October the 11th. The decision to arrest him was done October the 25th which was one day after this was done. It is our proposition that this order is what sparked this officer to make an arrest. Nothing else happened in this file, other than this, after October the 11th. This is what forced his hand to make an arrest.
On appeal, Charles maintains his argument that the order of appointment is relevant because it prompted law enforcement to arrest him, when before that time there had been no active investigation into the rape allegations and no arrest warrant had been issued.
The decision to admit or exclude evidence is within the sound discretion of the circuit court, and this court will not reverse a circuit court's decision regarding the admission of evidence absent a manifest abuse of discretion. Gillean v. State , 2015 Ark. App. 698, at 14, 478 S.W.3d 255, 264. An 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 acted improvidently, thoughtlessly, or without due consideration. Id. , 478 S.W.3d at 264. Moreover, an appellate court will not reverse a circuit court's evidentiary ruling absent a showing of prejudice. Id. , 478 S.W.3d at 264.
Rule 401 of the Arkansas Rules of Evidence defines relevant evidence as "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." Id. at 14-15, 478 S.W.3d at 265 (citing Ark. R. Evid. 401 ). Arkansas Rule of Evidence 402 further provides that "[e]vidence which is not relevant is not admissible." For evidence to be relevant, it is not required that the evidence prove the entire case; rather, all that is required is that it have any tendency to make any fact that is of consequence to the determination of the action more or less probable. Id. at 15, 478 S.W.3d at 265.
Here, the entry of the order of appointment does not have the tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable. Charles argues that the entry of the order motivated law enforcement to arrest him, but what prompted Charles's arrest has nothing to do with the issue at hand-whether he raped AF. Therefore, we hold that the circuit court did not abuse its discretion in excluding the order of appointment.
Affirmed.
Whiteaker and Murphy, JJ., agree. | [
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SHAWN A. WOMACK, Associate Justice
Petitioner Dellemond Cunningham was convicted of being an accomplice to aggravated robbery, an accomplice to theft of property, and a felon in possession of a firearm, as well as intimidating a witness, for which he was sentenced to an aggregate sentence of 444 months' imprisonment. He appealed only the conviction for witness intimidation, and the Arkansas Court of Appeals affirmed. Cunningham v. State , 2010 Ark. App. 130, 2010 WL 475348. Cunningham subsequently filed in the trial court a timely pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009). The petition was denied, and this court affirmed. Cunningham v. State , 2013 Ark. 304, 429 S.W.3d 201 (per curiam). Cunningham now brings this pro se petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis in which he contends that the prosecution withheld videotape or audiotape evidence of Barving Price's police interview and that Marcus Green, Cunningham's accomplice, gave a third-party confession. Because Cunningham fails to demonstrate in the petition that the writ should issue, the petition is denied.
The circuit court cannot entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal unless this court grants permission. Martinez-Marmol v. State , 2018 Ark. 145, at 2, 544 S.W.3d 49, 51. A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore , 341 Ark. 397, 406, 17 S.W.3d 87, 92 (2000). Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Green v. State , 2016 Ark. 386, at 2, 502 S.W.3d 524, 526. 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 circuit court and that, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Carner v. State , 2018 Ark. 20, at 2, 535 S.W.3d 634, 636. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts v. State , 2013 Ark. 56, at 11, 425 S.W.3d 771, 777.
The writ is allowed under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Roberts , 2013 Ark. 56, at 11, 425 S.W.3d at 778. 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, at 4, 403 S.W.3d 38, 43. A court is not required to accept the allegations in a petition for writ of error coram nobis at face value. Jackson v. State , 2017 Ark. 195, at 7, 520 S.W.3d 242, 246.
For his first point, Cunningham asserts that the prosecutor withheld material evidence during the trial in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, he alleges that the prosecutor withheld videotape and audiotape evidence of Barving Price's police interview and that the interview would have shown that Price was "led and coerced to make certain statements, implying that [ ] Cunningham was an active participant in the planning [and] aiding of Green in the commission of the aggravated robbery of a bank[.]" Cunningham noted his own interrogation and compared that to Price's in an attempt to expose the police in "their conduct during the said interrogation and interview" of Price. Cunningham fails to demonstrate he is entitled to relief.
There are three elements to a Brady violation: (1) the evidence at issue must be favorable to the accused, either because its exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; (3) prejudice must have ensued.
Jackson v. State , 2018 Ark. 227, at 3, 549 S.W.3d 356, 358-59(citing Carner , 2018 Ark. 20, 535 S.W.3d 634 ). When determining whether a Brady violation has occurred, it must be established by the petitioner that the material was available to the State and that the defense did not have it. Cloird v. State , 357 Ark. 446, 452, 182 S.W.3d 477, 480 (2004).
Cunningham's Rule 37 appeal reveals that he challenged his counsel's ability to properly introduce a transcript of a police interview of Barving Price. See Cunningham , 2013 Ark. 304, at 7-8, 429 S.W.3d 201, 207-08. During the detective's testimony, Cunningham's counsel attempted unsuccessfully to admit evidence of Price's police interview, which Cunningham contended would have shown the disparity in treatment that he and Price received during their respective interviews. Id. Cunningham had also argued that his counsel should have objected to Price's testimony as hearsay because the testimony "implied that he was an active participant in the robbery." Cunningham, 2013 Ark. 304, at 8, 429 S.W.3d at 208. Clearly, any video or audio recording of Price's police interview was not extrinsic to the record, and Cunningham was well aware of its existence at the time of trial. Simply put, Cunningham fails to allege facts sufficient to support his claim of a Brady violation.
For his second point, Cunningham contends that Green, his accomplice, gave a third-party confession by pleading guilty to the charged offense of aggravated robbery prior to Cunningham's trial. The very nature of Cunningham's argument-that his accomplice confessed by pleading guilty-fails to establish a ground for issuance of the writ because a writ of error coram nobis is available for addressing a third-party confession to the crime during the time period between conviction and appeal. See Howard , 2012 Ark. 177, at 4, 403 S.W.3d at 43. Both Cunningham and Green were accomplices, and Cunningham had not been convicted when Green allegedly made this third-party confession. Even if Green's guilty plea could arguably be deemed a "third-party confession," it does not fall within the time period during which Cunningham could have raised such a claim for coram nobis relief-between conviction and appeal. See Howard , 2012 Ark. 177, at 4, 403 S.W.3d at 43. Cunningham has failed to demonstrate the writ should issue.
Petition denied.
Attached to Cunningham's petition is a pleading titled " 'Supplemental Pleading' Toward Petition for Error Coram Nobis" in where he attempts to raise multiple claims of ineffective assistance of counsel as a basis to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. Those claims, however, are not cognizable in a coram nobis proceeding under our state law. Martinez-Marmol , 2018 Ark. 145, at 6, 544 S.W.3d at 53. Coram nobis proceedings are not to be used as substitute for raising claims of ineffective assistance of counsel under our postconviction rule. Id. | [
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We first address appellant Dye's argument on appeal that there was insufficient evidence to support his convictions. Appellant initially contends that there was nothing to connect him with the paraphernalia found in the truck, noting that there was no evidence as to who owned the truck and the paraphernalia was concealed in a pouch between the two front seats. Dye further argues that there was insufficient evidence to link him with the items seized from the residence because it was never clearly established that he occupied the residence. Alternatively, Dye argues that, at most, the State showed that he occupied the residence jointly with Watkins, and that there were no additional factors linking him to possession of the contraband. For these reasons, appellant Dye argues that his convictions should be reversed.
Appellant's argument as to the items seized from the truck is misplaced because the State's allegations against Dye were based on the contraband seized from Dye's residence; not the truck. Thus, it is irrelevant whether appellant was in possession of the items seized from the truck. On the evidence contained in the record, we hold that there was substantial evidence to support the trial court's finding that appellant was in possession of the methamphetamine, the drug paraphernalia, and the firearm found in his residence.
Constructive possession can be inferred when the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Harjo v. State , 2017 Ark. App. 337, 522 S.W.3d 839. Constructive possession can also be inferred when the contraband is in the joint control of the accused and another. Id. However, joint occupancy alone is not sufficient to establish possession or joint possession; there must be some additional factor linking the accused to the contraband. Id. In such cases, the State must prove that the accused exercised care, control, and management over the contraband and that the accused knew the matter possessed was contraband. Id. Control over 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, and the ownership of the property where the contraband is found. Nichols v. State , 306 Ark. 417, 815 S.W.2d 382 (1991).
Contrary to appellant's argument, there was evidence that he occupied the house and that it was his residence. Upon inquiry by the police, Dye stated that Watkins was staying with him at his residence. Dye orally consented to the search of his residence and provided the police with the key that opened the front door. Dye also signed the written consent form, which stated that the house to be searched, 4616 Industrial Park Road, was "my house." Finally, Dye voluntarily informed the police about a potentially dangerous dog in the house and a shotgun in his bedroom, both of which were found by the police after they entered the house. Therefore, the State sufficiently established that this was appellant Dye's house.
After the police entered the house, they found the contraband in appellant Dye's bedroom. Dye had told the police they would find a shotgun in a bedroom near his bed. The shotgun was located in the bedroom closet. In plain view in the headboard area of the bed the police found a spoon, which was later confirmed to contain methamphetamine, and some straws with white residue.
This evidence was sufficient to prove that appellant Dye constructively possessed the contraband. The contraband was found in his house and in his bedroom, which were factors linking him to possession of the items. Therefore, we conclude that there was substantial evidence to support appellant's convictions for possession of methamphetamine, possession of drug paraphernalia, and being a felon in possession of a firearm.
Appellant next argues, for various reasons, that the contraband seized from his house should have been suppressed because it was illegally obtained. First, he claims that the initial encounter by law enforcement was not authorized by Rule 2.2 of the Arkansas Rules of Criminal Procedure. Next, he argues that, even if the initial encounter had been lawful, his subsequent and continued detention was not authorized under Rule 3.1. Finally, he argues that even if the encounter and continued detention had been lawful, the consent obtained by the officers to search his house was invalid because it was obtained without Miranda warnings and was not given freely and voluntarily because he was under the influence of drugs at the time of his consent. For each of these reasons, Dye contends that the contraband seized from the residence was fruit of the poisonous tree.
In reviewing the denial of a motion to suppress evidence, this court conducts 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 trial court. Pickering v. State , 2012 Ark. 280, 412 S.W.3d 143. A finding is clearly erroneous when, even if there is evidence to support it, the appellate court, after review of the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id. We defer to the superiority of the trial court to evaluate the credibility of witnesses who testify at a suppression hearing. Id.
In Lewis v. State , 2017 Ark. 211, at 6, 521 S.W.3d 466, 471-72, the Arkansas Supreme Court articulated three types of encounters with law-enforcement officers:
Police-citizen encounters have been classified into three categories. The first category is contemplated by Rule 2.2 of the Arkansas Rules of Criminal Procedure. The authority for a police officer to act in a nonseizure encounter is recognized in Rule 2.2(a) which provides,
A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. The officer may request the person to respond to questions, to appear at a police station, or to comply with any other reasonable request.
This type of nonseizure encounter occurs when an officer merely approaches an individual on a street and asks if he is willing to answer some questions. Thompson v. State , 303 Ark. 407, 797 S.W.2d 450 (1990). This encounter is consensual and does not constitute a seizure. Scott v. State , 347 Ark. 767, 67 S.W.3d 567 (2002). A seizure of a person occurs when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. Id. , 67 S.W.3d 567. The initially consensual encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would believe that he is not free to leave. Id. , 67 S.W.3d 567. The second category is contemplated by Rule 3.1 of the Arkansas Rules of Criminal Procedure. Thompson , 303 Ark. 407, 797 S.W.2d 450. This second type of encounter occurs when the officer justifiably restrains an individual for a short period of time because the officer has a reasonable, articulable suspicion that the person has committed or is about to commit a crime. Thompson , 303 Ark. 407, 797 S.W.2d 450. The final category is the full-scale arrest, which must be based on probable cause. Scott , 347 Ark. 767, 67 S.W.3d 567.
Appellant argues that the initial encounter by law enforcement was unjustified under Rule 2.2. Our supreme court has held that an encounter under Rule 2.2 is permissible only if the information or cooperation sought is in aid of an investigation or the prevention of a particular crime. Hammons v. State , 327 Ark. 520, 940 S.W.2d 424 (1997). Appellant contends that in this case, Officer Jones was not investigating any crime but was merely trying to find out what Dye and the others were doing on the property.
We disagree with appellant's claim that the initial encounter was unlawful. Dye asserts that he was approached under the same flawed reasoning employed by the officer in Jennings v. State , 69 Ark. App. 50, 10 S.W.3d 105 (2000). However, Jennings is distinguishable. In Jennings , the police officer stopped the appellant and his companion on a public street corner of a known drug area to "check them out" and see if they were doing anything wrong. This court held that because there was no testimony that the officer was investigating or preventing a crime when she encountered appellant and his companion, the stop was not justified under Rule 2.2. However, in this case, Officer Jones testified that he was on "extra patrol" late at night in an area where there had been complaints of trespassing on private property. He encountered two vehicles parked next to each other on the private gas-well property. This was the same gas-well property where the prior trespassing had been reported. We conclude under these circumstances that the initial encounter was lawful under Rule 2.2 because, unlike Jennings , the appellant was not on a public street but rather on private property where there had been complaints of trespassing. Because Officer Jones was investigating the potential crime of trespass he was authorized under Rule 2.2 to stop and request that Dye cooperate in the investigation or prevention of crime.
We next turn to appellant's argument that the encounter was transformed into the second category-one of a seizure where he was being restrained by the officer-without the officer having the requisite reasonable suspicion under Rule 3.1 and for a longer time period than is authorized under this rule. Arkansas Rule of Criminal Procedure 3.1 provides:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer's presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.
Reasonable suspicion depends on whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating that the person may be involved in criminal activity. Smith v. State , 343 Ark. 552, 39 S.W.3d 739 (2001).
The State argues that there was no evidence that appellant was not free to leave and that the consensual encounter never transformed into a seizure of his person. We do not agree. In Lewis , supra , the supreme court held that a consensual encounter with law enforcement is transformed into a seizure when, considering all the circumstances, a reasonable person would believe that he is not free to leave. In this case, within minutes of the consensual police-citizen encounter, Watkins fled the scene. During the next ten minutes officers searched for Watkins, during which time Officer Jones remained with Dye at the truck and ultimately asked Dye for permission to search for Watkins in Dye's residence. We believe a reasonable person in Dye's position would not believe he was free to leave during this time frame, as demonstrated by the officers' reaction when Watkins left the scene. The police search for Watkins, coupled with one officer remaining with appellant and requesting to search Dye's residence, amounted to a show of authority that prevented Dye from leaving the scene. Therefore, we hold that appellant Dye was being detained as contemplated by Rule 3.1.
Having concluded that appellant was being detained, the next inquiry under Rule 3.1 is whether the police had reasonable suspicion that appellant was committing, had committed, or was about to commit a felony or misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property. We conclude that Officer Jones had reasonable suspicion to detain Dye pursuant to Rule 3.1.
Arkansas Code Annotated section 16-81-203 (Repl. 2005) provides that the following are among the factors to be considered in determining if the officer has grounds to reasonably suspect:
(1) The demeanor of the suspect;
(2) The gait and manner of the suspect ;
(3) Any knowledge the officer may have of the suspect's background or character ;
(4) Whether the suspect is carrying anything, and what he or she is carrying ;
(5) The manner in which the suspect is dressed, including bulges in clothing, when considered in light of all the other factors;
(6) The time of day or night the suspect is observed ;
(7) Any overheard conversation of the suspect;
(8) The particular streets and areas involved ;
(9) Any information received from third persons, whether they are known or unknown ;
(10) Whether the suspect is consorting with others whose conduct is reasonably suspect ;
(11) The suspect's proximity to known criminal conduct ;
(12) The incidence of crime in the immediate neighborhood ;
(13) The suspect's apparent effort to conceal an article; and
(14) The apparent effort of the suspect to avoid identification or confrontation by a law enforcement officer.
(Emphasis added.) The supreme court has stated that this section is merely illustrative, and not exhaustive, of the types of factors that may be considered in forming reasonable suspicion. Laime v. State , 347 Ark. 142, 60 S.W.3d 464 (2001).
The factors that combined to give Officer Jones reasonable suspicion that Dye was engaged in criminal activity are (a) there had been reports of trespassing on the private gas-well property where Dye was located, resulting in extra police patrol in the area; (b) it was approximately midnight; (c) the truck occupied by Dye was parked side-by-side with another vehicle; (d) Dye was holding cash in his hand ; (e) there was a black pouch containing plastic baggies in plain sight between the front seats of the truck; (f) Officer Jones determined that Dye had prior methamphetamine convictions; and (g) Dye's co-occupant fled the scene shortly after the officers' arrival. We conclude on these facts that Officer Jones had specific, particularized, and articulable reasons that Dye may be involved in criminal activity. See Smith, supra . Although any one of these factors, standing alone, may not have been enough to lead to reasonable suspicion, viewing the totality of these circumstances, we cannot say the trial court clearly erred in determining that the police had reasonable suspicion to detain appellant. See Menne v. State , 2012 Ark. 37, 386 S.W.3d 451.
Our remaining inquiry under Rule 3.1 is whether the duration of the police detention was within the time constraint allowed by the rule. Appellant argues that because the detention exceeded fifteen minutes, it was excessive and he should have been permitted to leave. We disagree.
According to the plain language of the rule, the alternative time period allowed the officer to detain appellant for "such time as [was] reasonable under the circumstances" and was not restricted to a specific number of minutes. Johnson v. State , 2012 Ark. App. 167, 392 S.W.3d 897. In Omar v. State , 99 Ark. App. 436, 262 S.W.3d 195 (2007), we held that a thirty-seven minute detention was not unreasonable. In this case, appellant was detained for about twenty minutes from the time of the initial stop until the time the police began searching his house. In light of the suspicious information known to the officers and the fact that they were still actively searching for appellant's companion, we hold that this time period was not unreasonable.
Appellant's final point in support of his motion to suppress is that (1) the police obtained his consent to search without Miranda warnings, and (2) his consent was not voluntarily and willingly given because he was under the influence of drugs at the time it was given. We are not persuaded by either of these contentions.
In this case, the police obtained appellant's consent to search his house both verbally and in writing. The written consent form specifically advised appellant of his constitutional right to refuse consent, and with this information, appellant chose to sign the form consenting to the search. This consent was validly obtained by the officers, and appellant offers no authority that Miranda warnings were required to obtain his consent. Dye also argues that any incriminating statements he made should have been suppressed. However, the only incriminating statement appellant gave to the police was that there was a gun in his bedroom, and this statement was not the result of a police interrogation. Rather, it was a spontaneous, voluntary statement. A Miranda warning is not required for spontaneous, voluntary statements. Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
With regard to appellant's argument that his consent was involuntary, we recognize that under Aransas Rule of Criminal Procedure 11.1, it is the State's burden to prove by clear and positive evidence that consent to search was freely and voluntarily given and that there was no duress or coercion. There was no evidence of any duress or coercion in obtaining appellant's consent, and Officer Jones testified that appellant appeared to understand what was going on and what was being asked of him. Appellant also gave officers the key to his house and voluntarily advised the police of some of its contents. Based on Officer Jones's testimony, we hold that there was no error in the trial court's finding that appellant's consent was freely and voluntarily given.
Having concluded that there was sufficient evidence to support appellant's convictions and that the trial court's denial of appellant's motion to suppress was not clearly erroneous, appellant's convictions are affirmed.
Affirmed.
Klappenbach and Whiteaker, JJ., agree.
Although appellant mistakenly refers to Rule 3.3 in his brief, it is clear from the context of his argument that he means Rule 3.1.
We acknowledge that Dye told the police that the cash in his hand was to buy cigarettes, a lawful product. However, Dye's explanation of the cash does not rule out reasonable suspicion in light of the other factors present. | [
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N. MARK KLAPPENBACH, Judge
Victoria Keith 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 on 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.
Keith was fired by Tyson on February 26, 2018, by Tyson after thirty-one years of employment. Keith was a line lead on the production and packaging of Mexican-food products for Tyson. She was terminated for having received two written warnings with a one-day suspension within one year.
The first warning was issued on March 12, 2017, after it was discovered that foreign materials were in the food being packaged. Some of the foreign material was metal, which was retrieved by using a magnet. Keith testified that she gave the metal to her supervisor, as she was supposed to do. Keith stated that she was unaware that the other foreign material (which did not respond to the magnet) was also supposed to be given to her supervisor, so she discarded the nonmetal material. The written warning stated that Keith failed to notify her supervisor about any of the foreign materials and discarded all the foreign material. Keith was given a one-day suspension for that error.
The second warning was issued on February 12, 2018. Part of Keith's job required that she check the stamping machine to ensure the correct month, day, and year was being placed on the packages. During her shift, Keith checked the machine but failed to ensure that the year was correct. The packages were being marked with 2017 instead of 2018, and this one-digit error resulted in many pallets being placed on hold. Keith was given a written warning with suspension, and this second warning triggered her termination. Keith acknowledged that she made a mistake, but she also noted that other people were responsible for checking the date stamping too. Tyson's human-resources supervisor acknowledged that other employees were also supposed to check the date stamping.
The Board found that Tyson had presented evidence to establish that Keith had received "progressive discipline warnings for job performance issues ... yet she continued to fail to perform the job duties as required," which was "considered evidence that claimant's failure to perform was intentional." The Board found that Keith was terminated for misconduct in connection with the work. This appeal followed.
In this case, there is no substantial evidence to support a finding that these two errors in Keith's work performance constituted intentional failure to perform her job. Keith made two completely different kinds of work errors, and those errors occurred almost a year apart. 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. Tyson bore the burden of proving that Keith's actions rose to the level of wrongful intent sufficient to disqualify her from receipt of unemployment benefits. Tyson failed to carry that burden here. No reasonable person could conclude that these two workplace mistakes manifested deliberate disregard of Tyson'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.
Whiteaker and Hixson, JJ., agree. | [
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BART F. VIRDEN, Judge
The Crawford County Circuit Court revoked appellant Joseph Makinson's suspended imposition of sentence (SIS) upon finding that he had violated the terms and conditions of his suspended sentence by failing to pay child support, restitution, a fine, costs, and fees. He was sentenced to serve six months in the county jail. Makinson argues that the trial court erred in revoking his suspended sentence because his failure to make payments was not willful. We affirm as modified.
I. Procedural History
On June 10, 2016, Makinson pleaded guilty to nonsupport, a Class A misdemeanor, received a one-year SIS, and was ordered to pay $1,000 in restitution, along with a fine, costs, and fees. He was also ordered to resume paying child support as previously ordered in Case No. 17DR-08-46 as a term or condition of his SIS.
On August 8, 2016, the State filed a petition to revoke, alleging that Makinson had failed to make any payments toward his restitution, fine, costs, and fees, leaving a balance of $1,490. The State also alleged that Makinson had made no child-support payments since April 7, 2016.
On May 1, 2017, the trial court found Makinson guilty of violating the terms and conditions of his SIS, revoked his SIS, sentenced him to serve six months in the county jail followed by a six-month SIS, and ordered him to pay his restitution, fine, costs, and fees to the Crawford County Prosecuting Attorney's Office in installments of $65 a month beginning sixty days after his release from jail. Makinson was also ordered to resume paying child support as previously ordered in Case No. 17DR-08-46.
On August 17, 2017, the State filed another petition to revoke, alleging that Makinson had been released from jail on May 18, 2017, but that he had made no payments toward his restitution, fine, costs, and fees and that he had made only one child-support payment of $40 in June 2017, leaving an arrearage of $5,870.41. A hearing on the State's petition was held January 31, 2018.
II. Revocation Hearing
Lori Davis, an employee of the Office of Child Support Enforcement, testified that, from January 2017 to August 2017, Makinson had made only one payment of $40 and that he had made two similar payments in 2016. She said that the current child-support arrearages were $11,412.51.
Lisa Whetstine, the fine and restitution coordinator for the prosecuting attorney's office, testified that Makinson had made no payments toward his restitution, fine, costs, and fees, leaving a balance of $1,490.
Makinson testified that he works at Sonic and that his "take-home" pay is about $180 to $200 every two weeks. Makinson testified that he lives in a homeless community in Fayetteville. He said that the police had ordered him and others to leave the area several times and finally destroyed their tents. He said that he had to buy a new tent and "start all over again." Makinson testified that his money was spent supporting himself and "anyone who wanted to eat at camp." He also said that both Crawford and Sebastian Counties were taking child support out of his paycheck and that he had contacted his ex-wives who said that they had been receiving child support every two weeks. Makinson acknowledged that he had been ordered to begin making payments on his restitution, fine, costs, and fees sixty days after he was released from jail, which he thought was the end of May or first of June. On cross-examination, he conceded that he had been released on May 18, 2017, meaning that he should have begun making payments on July 18, 2017. According to Makinson, he had called the prosecutor's office on August 1, 2017, to find out when his payment was due and was told that a warrant had already been issued for his arrest. He stated that he had called again to set up a payment plan so that he could pay less because "something is better than nothing" but was told that nothing could be done because of the warrant.
At the conclusion of the hearing, the trial court revoked Makinson's SIS and sentenced him to serve six months in the county jail. The trial court also ordered Makinson to make payments on his child support, restitution, fine, costs, and fees. To the extent that the trial court ordered Makinson to make these payments "as a term and condition of suspended sentence," we note that the trial court did not suspend imposition of any sentence nor did it choose to extend the period of suspension. We thus modify the sentencing order to omit any reference to an SIS.
III. Standard of Review
Because the burden of proof in a revocation proceeding is less than that required to convict in a criminal trial, evidence that is insufficient for a conviction may be sufficient for a revocation. Collier v. State , 2013 Ark. App. 643. When the sufficiency of the evidence is challenged on appeal, we will not reverse the trial court's decision to revoke unless its findings are clearly against the preponderance of the evidence. Id. Because the determination of the preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the superior position of the trial court to decide these matters. Id. Only one violation is required to sustain a revocation. Vangilder v. State , 2018 Ark. App. 385, 555 S.W.3d 413.
When the alleged violation of conditions is a failure to make payments as ordered, the State has the burden of proving by a preponderance of the evidence that the failure to pay was inexcusable. Bohlman v. State , 2013 Ark. App. 162. The burden of proof does not shift from the State; however, once the State has introduced evidence of nonpayment, the burden of going forward does shift to the defendant to offer some reasonable excuse for the failure to pay. Id. If any assertion of inability to pay is made, the State can then carry its burden in various ways, e.g., it can undermine the probationer's credibility, or it can show a lack of effort, such as a failure to make bona fide efforts to seek employment or to borrow money to make payments. Id. In determining whether to revoke a suspended sentence for nonpayment, the court is required to consider the defendant's employment status, earning ability, financial resources, the willfulness of the defendant's failure to pay, and any other special circumstances that may have a bearing on the defendant's ability to pay. Id.
IV. Discussion
Makinson argues that, although the State offered proof of nonpayment through the ledgers from the Office of Child Support Enforcement and the prosecuting attorney's office, the State did not provide testimony from the recipients of the funds stating that the funds had not been received. He contends that, once the burden shifted to him, he offered a reasonable excuse for his nonpayment and that he was clearly willing to pay but could not. He argues that the State did not show (1) that he could have paid but did not, (2) that he was not seeking employment, or (3) that he was spending his money inappropriately; and the State offered no evidence of his other sources of income, his assets, or his expenses. Citing Bearden v. Georgia , 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), he argues that a defendant cannot be punished by imprisonment solely because of a failure to pay.
Makinson likens his case to Phillips v. State , 101 Ark. App. 190, 272 S.W.3d 123 (2008). Phillips had chronic obstructive pulmonary disease (COPD), and his only income was disability payments of $660 a month. He said that he paid $250 a month on rent, that his electric bill was approximately $100 a month, and that he paid between $43 and $63 a month for medication. He also said that he had paid off fines in Lonoke and Waldron and was paying a fine in Alma at the rate of $100 a month. The trial court said from the bench that it was not considering whether Phillips's failure to pay was inexcusable because "if you enter a plea agreement and you say you will pay, and you don't pay as agreed then you violated the terms of that agreement." Id. at 192, 272 S.W.3d at 124. In reversing the revocation, this court held that the trial court erred in not considering whether Phillips's failure to pay was inexcusable when his expenses left him with only $60 a month.
Phillips is distinguishable. The trial court made no similar statement that it was not considering whether Makinson's failure to pay was inexcusable. Makinson said that, after child support was taken out of his paycheck, he took home approximately $400 a month. Makinson lives in a tent, and there was no evidence that he paid rent or utilities. He said that he spent his money in part on others at the homeless community.
The trial court was not required to believe Makinson's testimony that he thought his child support was being withheld from his paychecks, that his ex-wives told him they had been receiving child support, and that Makinson had tried to make payment arrangements with the prosecutor's office but could not because a warrant had already been issued for his arrest before August 1, 2017. The State showed Makinson's willfulness in failing to pay what he owed when it undermined his credibility in this regard. We defer to the trial court on matters of credibility and weight. We cannot say that the trial court's decision to revoke Makinson's suspended sentence was clearly against the preponderance of the evidence.
Affirmed as modified.
Gladwin and Vaught, JJ., agree.
The record reflects that a warrant for Makinson's arrest was issued August 24, 2017, and that Makinson was served with the warrant on December 9, 2017. | [
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LARRY D. VAUGHT, Judge
William Gray was convicted by a Pope County Circuit Court jury of murder in the first degree. He was sentenced to forty years' imprisonment plus a fifteen-year-imprisonment enhancement because the jury also found that he employed a firearm as a means of committing the murder. On appeal, Gray argues that the Pope County Circuit Court abused its discretion in refusing to include language in his justification jury instruction that he was not required to retreat from the curtilage of his dwelling. Because this issue is not preserved for appeal, we affirm.
On May 25, 2016, law-enforcement officers were called to Gray's home located at 213 James Circle, in Russellville, Arkansas. Upon arriving at the scene, officers found Rachel Michelle Chisum dead in her locked and running vehicle located across the street from Gray's home. Officers also found a knife and a screwdriver in Chisum's vehicle. Officers found Gray standing outside his home. When asked what happened, Gray stated that Chisum "was busting up my car and I shot her." An officer asked Gray where the firearm was, and Gray pointed to a gun lying on his front patio. Officers retrieved the firearm and arrested Gray. He was charged with first-degree murder.
At trial, testimony revealed that Gray and Chisum had been romantically involved but had broken up. Evidence was presented that prior to May 25, 2016, Gray had called the police to his home on two occasions regarding Chisum's harassing behavior. The first occasion was on December 8, 2015, when Gray called the police reporting that Chisum had been knocking on the window of his home, she was parked behind his car blocking him in, and she would not leave. Officers were called to Gray's home a second time on May 24, 2016, the day before the shooting. On this occasion, Chisum had been driving by Gray's home threatening him, and she used an object to beat Gray's vehicle.
On May 25, 2016, Gray testified that he was asleep on the couch when he awoke to Chisum coming toward him with a knife and a screwdriver attempting to stab him in the neck. He said that he grabbed her wrists and kicked her off him. According to Gray, Chisum ran out the front door and into Gray's vehicle to retrieve his gun. Gray testified that he grabbed Chisum by the waist, pulled her out of the car, grabbed the gun, and placed it in his waistband. Gray stated that Chisum ran to her car, "thr[ew] it in reverse and whip[ped] it and clip[ped] me" with the front end, knocking him to the ground and causing the gun to fall out of his waistband. He said that Chisum revved her car in neutral, and he thought she was going to run over him, so he "got up shooting." He said that she "whipped" her car around and then it rolled away, eventually stopping when it struck a wire fence across the street.
Corporal Joe Paterak of the Russellville Police Department testified that he found one bullet hole above the passenger-side door handle and two bullet holes in the driver's side window of Chisum's vehicle. Lieutenant Glenn Daniel of the Russellville Police Department stated that he discovered two bullet holes in the windshield of Chisum's vehicle. Russellville Police Department Detective Quinn Jones testified, and photographs confirmed, that four spent shell casings and one live round were found in the parking lot, sidewalk, and grass near Gray's neighbor's home at 211 James Circle. An associate medical examiner testified that Chisum died from a bullet that entered and exited her left arm, entered her chest cavity, and traveled through her lungs and heart.
At the conclusion of the evidence, the jury found Gray guilty of first-degree murder. Gray's sole point on appeal is that the circuit court abused its discretion in refusing to instruct the jury that he had no duty to retreat from the curtilage of his dwelling. We cannot reach the merits of his argument because it is not preserved for appeal.
At trial, after both parties rested, the circuit court stated:
Before we get our jury in here, I want to announce that I have read this Moody [v. State , 2014 Ark. App. 538, 444 S.W.3d 389] case and I do agree with the State. I'm going to submit the instruction on justification with the language that just, well, it eliminates the curtilage. Now we still define curtilage, what it is in the definition parts of it, but so I'm clear ... basically it will read, "A person is not justified in using deadly force if he knows that the use of deadly force can be avoided with complete safety by retreating."
I mean, you decide these, based on that case, you decide it on the facts of each case. This incident, homicide took place out in the parking lot of an apartment duplex-type of facility. It was a common area and by analogy, fourth amendment jurisprudence, there's no expectation of privacy. It's common to everyone - - the parking lot area, the grassy area even - - so that will be the Court's ruling.
In response, Gray's counsel stated:
If the Court would - - for the record - - note our objection, respectful objection to the ruling. We believe that it should be admitted because the initial contact took place not only on his curtilage but inside the house. And even on the facts most generously state[d], this shooting took place less than 20 feet or so from his front door.
The circuit court noted Gray's objection and read the jury AMI Crim. 2d 704, omitting the curtilage language he requested.
Both parties agree that the above exchange between the circuit court and Gray's counsel suggests that an unrecorded bench conference must have taken place during which Gray requested that the justification jury instruction include language that he was not required to retreat from the curtilage of his dwelling. This conference is not abstracted and is not in the record. Nevertheless, Gray contends that the issue is preserved for appeal because his counsel lodged the above objection when the circuit court ruled that it would omit the curtilage language. In contrast, the State contends that the issue is not preserved because Gray failed to proffer the instruction that included the curtilage language that he wanted the court to read to the jury. We agree with the State.
It is well settled that to preserve an objection to the circuit court's failure to give a jury instruction, the appellant must have made a proffer of the proposed instruction to the court. Jackson v. State , 2018 Ark. App. 222, at 3, 547 S.W.3d 753, 756 (citing Stewart v. State , 316 Ark. 153, 157, 870 S.W.2d 752, 755 (1994) ). That proffered instruction must be included in both the record and the abstract to enable the appellate court to consider it. Id. , 547 S.W.3d at 756. An instruction that is not contained in the record is not preserved and will not be addressed. Id. , 547 S.W.3d at 756 ; see also Robertson v. State , 2009 Ark. 430, at 3, 347 S.W.3d 460, 462 (holding that to preserve an objection to an instruction for appeal, the appellant must proffer the proposed instruction to the circuit court, include it in the record on appeal, and abstract it to enable the appellate court to consider it; an instruction that is not contained in the record is not preserved and will not be addressed on appeal).
In the instant case, Gray's counsel did not proffer the jury instruction he proposed to the circuit court, and the record does not contain the proposed instruction; therefore, we cannot address his argument on appeal. Accordingly, we affirm.
Affirmed.
Virden and Gladwin, JJ., agree.
AMI Crim. 2d 704 is based on Arkansas Code Annotated section 5-2-607 (Supp. 2017). | [
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Amendment Six to the United States Constitution and Art. 2, § 10 of the Arkansas Constitution only assure an accused that he shall enjoy the right to be confronted with the witnesses against him. ....
These constitutional provisions are but a declaration of the common law rule and the constitutional guaranty is confined to those who are witnesses against the accused. They do not require that every witness who has knowledge of relevant facts testify. They do not guarantee the accused that a victim, accuser, complainant, complaining witness, or private prosecutor will be called as a witness or appear at the trial, and the establishment of the elements of the crime by the testimony of other witnesses does not constitute a variance from an indictment naming the victim. ....
... These constitutional provisions do not apply when no testimony, prior statement or utterance of the victim is brought to the attention of the trier of fact, or is offered by the state, or when the accused has been given the right to cross-examine every person whose testimony or statements have been used to prove the elements of the crime with which he is charged.
Hoover v. State , 262 Ark. 856, 866-67, 562 S.W.2d 55, 60-61 (1978) (emphasis in original) (internal citations omitted).
Here, the case against appellant was made by the two witnesses who actually testified together with the video of the attack; no hearsay evidence was offered. Appellant was allowed to confront and cross-examine all of the witnesses who provided evidence against him, and thus there was no violation of his right to confrontation.
Affirmed.
Gruber, C.J., and Glover and Murphy, JJ., agree.
Whiteaker and Hixson, JJ., concur in part and dissent in part. | [
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DAVID M. GLOVER, Judge
Teresa McCormick appeals from the revocation of her suspended sentences. We affirm.
Teresa pleaded guilty to the underlying offenses of three counts of conspiracy to deliver a controlled substance (Roxicodone ) on November 6, 2009. She received a suspended sentence on each count. The conditions of her suspended sentences included not committing any offenses punishable by imprisonment. On May 16, 2017, the State filed a petition to revoke, alleging Teresa had committed the new offenses of residential burglary and theft of property. At the conclusion of the November 7, 2017 revocation hearing, Teresa moved for a directed verdict, arguing that the State had not proved its residential-burglary basis for revocation. The trial court denied the motion and found Teresa had violated the terms and conditions of her suspended sentences. The trial court did not prepare an order setting forth its findings and conclusions; however, no objection was raised to the lack of a written order. The pertinent docket entry for November 7, 2017, provided:
Revocation plea hearing held - McCormick, Teresa - in open crt before MJM, A. Johnson/Reporter, State/McCune, Deft Pres w/PD - Ryan Norris, Sworn testimony take w/rule, PD makes oral motion for direct verdict, Crt denies motion, Crt finds Deft did viol term and conds of susp sentence, Deft sentenced to 5 yrs ADC plus 10 yrs susp on resd burglary and 10 yrs on theft of prop, Deft to pay rest, crt grants appeal bond $5,000
The sentencing order was entered on November 20, 2017. This appeal followed, with Teresa challenging only the residential-burglary basis for revocation, not the theft of property.
To revoke a suspended sentence, the trial court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of the suspension. Bedford v. State , 2014 Ark. App. 239, 2014 WL 1663033. The State bears the burden of proof, but it need only prove the defendant committed one violation in order to sustain the revocation. Id. When a trial court bases its decision on alternate, independent grounds, and the appellant challenges only one of those grounds, we will affirm without addressing the merits of either. Id.
Here, Teresa challenges only one of the grounds supporting her revocation. We therefore affirm the revocation without addressing the merits of either residential burglary or theft of property.
Affirmed.
Harrison and Klappenbach, JJ., agree. | [
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MIKE MURPHY, Judge
Keith and Lisa Karolchyck were married on September 22, 2007, and divorced by order of the Pulaski County Circuit Court on November 9, 2017. On appeal, Keith argues that the circuit court erred in awarding Lisa $20,000 from a down payment on a home (the Lonoke House), $1500 for money Keith allegedly spent on his girlfriend while Keith and Lisa were married, $580 in moving expenses, and $2000 for repairs on another house (the Sherwood House). He further argues the circuit court erred in awarding Lisa an amount to be determined for half the reduction of the debt on the Sherwood house, spousal support, and attorney's fees. We affirm in part and dismiss in part.
Our court reviews domestic-relations cases de novo on the record, but we will not reverse the circuit court's findings unless they are clearly erroneous. Hunter v. Haunert , 101 Ark. App. 93, 270 S.W.3d 339 (2007). A circuit court's 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. Id. In order to demonstrate that the circuit court's ruling was erroneous, the appellant must show that the lower court abused its discretion by making a decision that was arbitrary or groundless. Skokos v. Skokos , 344 Ark. 420, 40 S.W.3d 768 (2001). We give due deference to the circuit court's superior position to determine the credibility of witnesses and the weight to be given their testimony. Kelly v. Kelly , 2011 Ark. 259, 381 S.W.3d 817.
I. The $20,000 Down Payment on the Lonoke House
Keith and Lisa purchased the Lonoke House in 2014. They purchased it for $179,000 and paid $35,068.53 at closing, $20,000 of which Lisa had taken from her inheritance from her father. Before closing, Lisa withdrew the $20,000 from an account in her name only where she kept her inheritance proceeds and deposited it into the couples' joint checking account. From that account, they wrote the check for the down payment. At the final hearing, Keith testified that he wanted to keep the house. The court found that the Lonoke House was marital property and awarded it to Keith, but it also ordered him to reimburse Lisa for half the equity in the home and $20,000 for the portion of the down payment that came from her inheritance. Keith argues that he should not have to reimburse Lisa the $20,000 because the money came from commingled funds and was thus marital property.
Any discussion of division of marital property should begin with the relevant statutory provision. Arkansas Code Annotated section 9-12-315 (Repl. 2015) defines "marital property" as "all property acquired by either spouse subsequent to the marriage," subject to certain exceptions. There is a presumption that all property acquired during a marriage is marital property. Id. Relevant exceptions to the statute, however, include "property acquired prior to marriage, or by gift, or by bequest, or by devise, or by descent"; and "property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent." Ark. Code Ann. § 9-12-315(b).
It is uncontroverted that Lisa's inheritance was her separate property. But Keith is correct that sometimes the nature of separate property may change to marital in the event commingling occurs. This result, however, occurs only when tracing the way nonmarital property and marital property have been commingled becomes so difficult as to be onerous. See Speer v. Speer , 18 Ark. App. 186, 191, 712 S.W.2d 659, 662 (1986). Here, there is no such difficulty. It is a well-settled rule that property acquired for a consideration paid in part out of community funds and in part out of separate funds of one of the spouses is in part community and in part separate property. McCormick v. McCormick , 2012 Ark. App. 318, at 6, 416 S.W.3d 770, 775. The two estates own such property by way of a sort of tenancy in common. Id. The mere pouring of nonmarital funds in and out of a joint checking account does not render them forever funds owned by the entirety. Jackson v. Jackson , 298 Ark. 60, 63-64, 765 S.W.2d 561, 562-63 (1989). We therefore affirm the trial court's ruling on this point.
II. Money Spent on Paramour
Keith next argues that it was error for the circuit court to order him to reimburse Lisa for $1500 he allegedly spent on his girlfriend while he and Lisa were still married. At trial, Keith admitted using marital funds to purchase concert tickets for himself and his girlfriend totaling $283.55. He also admitted taking his girlfriend out for meals, going on trips with her during the marriage, and buying gifts for her children. The only receipts introduced, however, were the ones for the concert tickets. Lisa did testify that she and Keith used to go out to eat two or three times a week, and that the two of them would spend about $100 to $150 eating out, but during the hearing even the court acknowledged that Lisa was only speculating as to how much Keith spent on his girlfriend's meals.
It is permissible to have one spouse reimburse the other for improper expenses attributable to a paramour, and we have upheld decisions to do so. Bamburg v. Bamburg , 2011 Ark. App. 546, at 14-15, 386 S.W.3d 31, 40. But it is also axiomatic that one must present evidence to prove such an assertion. Id. Here, Keith argues that the $1500 sum was arrived at arbitrarily, and that it was therefore an abuse of discretion for the court to make such an award. However, in Bamburg , we affirmed despite any exacting calculation. There, the circuit court found the husband was entitled to $2500 in reimbursement "because some trips and entertainment were undeniable." Thus, like in Bamburg , because Keith admitted taking trips and spending money on his girlfriend and her children during the marriage, we cannot say that the circuit court clearly erred in ordering this amount of reimbursement.
III. Moving Expenses
At the hearing, Lisa testified that she moved out of the parties' marital home (the Lonoke House) and moved into the Sherwood House where she resided until they found a buyer for the Sherwood House. When she moved out of the Sherwood House, she incurred $580 in moving expenses. The circuit court ordered Keith to reimburse Lisa the full $580 in moving costs. Keith argues this is error because Lisa spent marital funds to move; thus, awarding her the full amount is an unequal distribution.
Keith's couching this allotment as an unequal division is error. Instead, the moving expenses are more akin to a marital debt. 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 item to be resolved in a divorce dispute. Ellis v. Ellis , 75 Ark. App. 173, 57 S.W.3d 220 (2001). A circuit court's decision to allocate debt in a particular manner is a question of fact and will not be reversed on appeal unless clearly erroneous. Boxley v. Boxley , 77 Ark. App. 136, 141-42, 73 S.W.3d 19, 23-24 (2002). Here, the circuit court reasoned that Lisa was entitled to the reimbursement of moving expenses because she had to move out of the marital home due to Keith's adultery. Later in the order, the court also provided a detailed discussion of Lisa's poor health and her upcoming needs. It did not clearly err on this point.
IV. Reduction of Debt and Repairs on Sherwood House
Keith's fourth and fifth points can be effectively addressed together. For the bulk of the parties' marriage they lived in the Sherwood House. Keith had purchased the house in 1999 during a previous marriage and maintained the property in his name after his divorce from his former wife. He refinanced the home in 2007 after he married Lisa. Even after the refinance, he maintained the house solely in his name. Keith and Lisa made improvements to the Sherwood House during the marriage. Lisa testified that all the work "probably cost about $8000 and was paid for with joint funds." The court found that the Sherwood House was Keith's separate property but that Lisa was entitled to some financial compensation for the marital contributions toward the improvements ($2000) and any reduction of debt on the home.
Keith argues this was made in error because "there was no factual basis for the award of the alleged reduction of debt on a non-marital property paid for with alleged marital funds." We disagree. Here, the record demonstrates that Keith refinanced the Sherwood House in 2007 for $73,466 and, according to Keith's testimony, at the time of the hearing it was under contract to sell for $103,000. Keith further testified that after fees and commission they would receive roughly $89,000 from the sale and that about $59,000 is still owed on the note. Keith put on no evidence to demonstrate that the reduction in debt was not attributable to marital funds. Considering that a circuit court is given broad powers to distribute both nonmarital and marital property to achieve an equitable division, Smith v. Smith , 32 Ark. App. 175, 184, 798 S.W.2d 442, 447 (1990), and that a non-owning spouse is entitled to some benefit when marital funds have been used to pay off debts or make improvements on the owning spouse's nonmarital property, Box v. Box , 312 Ark. 550, 555, 557, 851 S.W.2d 437, 440, 441 (1993), we are not left with a definite and firm conviction that a mistake has been committed.
V. Spousal Support
As of the hearing, Keith was working as a restaurant manager in Little Rock making roughly $55,000 a year, and Lisa was a therapist for Baptist Hospital making roughly $58,000 a year. Lisa, however, has a chronic kidney disease that requires her to be on dialysis five times a week. At the hearing, she testified that she is on a wait list for a new kidney and anticipated receiving a transplant within the next year. She testified that once she receives a kidney transplant, she will spend between twelve weeks to six months recovering and will require full-time care. Lisa testified that her surgery will take place in Dallas at a significant cost to her, and her antirejection medicine can cost hundreds of dollars a month. Taking Lisa's health into consideration, as well as her short-term and long-term disability insurance and her current monthly expenses, the circuit court awarded her $500 a month for the next two years to support her financially through her transplant and recovery.
Keith contends this was error because he and Lisa make roughly the same amount of money and that the circuit court "did not appear to consider" the fact that Lisa was pursuing avenues to perform her job remotely, such as conferencing with patients via Skype.
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.
Regarding the primary factors, Lisa testified about her current monthly expenses and how those are likely to increase while she pursues her kidney transplant. She testified that even without considering her upcoming hospitalization and antirejection medication, she will still need an additional $500 a month to meet her regular expenses. Keith did not argue, either below or on appeal, that he does not have the ability to pay. Regarding the secondary factors, it is evident that the court relied heavily on factor ten, the respective health and medical needs of the parties, especially considering that the court awarded the alimony for only two years. The circuit court did not abuse its discretion in making this award.
VI. Attorney's Fees
Finally, Keith argues that the court erred in awarding Lisa her attorney's fees. In the divorce decree, the court invited both parties to submit petitions for attorney's fees. Lisa did so, and the court awarded her $1500 in an order dated December 21, 2017. Keith did not amend his notice of appeal to include the order for attorney's fees; therefore, we do not have jurisdiction to consider his arguments and dismiss this issue. Ark. R. App. P.-Civ. 4(b)(2).
Affirmed in part; dismissed in part.
Gruber, C.J., and Glover, J., agree. | [
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BRANDON J. HARRISON, Judge
"Beware! The Devil is in the details." This warning applies full-force to Arkansas District Court Rule 9, whose reticulated structure continues-with some justification-to bedevil lawyers and courts alike. This appeal presents the most recent example.
The incorporators of the community called Little Italy appeal the Pulaski County Circuit Court's order that dismissed Little Italy's appeal from Pulaski County Court. The circuit court ruled that Little Italy failed to perfect its appeal in accordance with Arkansas District Court Rule 9 (2016). Little Italy disagrees and asks this court to reinstate its case in the circuit court.
Because we will repeatedly refer to Arkansas District Court Rule 9, we reproduce the pertinent parts now:
(b) How Taken From District Court.
(1) A party may take an appeal from a district court by filing with the clerk of the circuit court having jurisdiction of the appeal (i) a certified copy of the district court's docket sheet which shows the entry awarding judgment and all prior entries or a certified copy of the record of the district court proceedings consisting of all documents and motions filed in the district court, and (ii) a certified copy of the complaint filed in the district court or, if filed in accordance with Rule 10 of these rules, a certified copy of the claim form filed in the small claims division of the district court. Neither a notice of appeal nor an order granting leave to appeal shall be required.
The appealing party shall serve upon counsel for all other parties and upon any party not represented by counsel, certified copies of the district court docket sheet or the district court record and a certified copy of the district court complaint or claim form. Service upon counsel or a party not represented by counsel shall be effected as follows:
(A) By sending the copies by any form of mail requiring a signed receipt;
(B) By delivering the copies as described in Arkansas Rule of Civil Procedure 5(b)(2) ;
(C) By sending the copies by a commercial delivery company as described in Arkansas Rule of Civil Procedure 5(b)(2) ; or
(D) If service is upon counsel, by sending the copies by electronic transmission as described in Arkansas Rule of Civil Procedure 5(b)(2). If service is by mail, the signed receipt shall be attached to the certificate of service.
....
(3) If service of the certified copies of the district court docket sheet or record and the complaint or claim form is not made within 120 days after filing the district court complaint or claim form with the circuit court or within the time period established by an extension granted pursuant to this subdivision, the action shall be dismissed without prejudice upon motion or upon the court's initiative. ...
(c) Procedure on Appeal from District Court.
(1) All the parties shall assert all their claims and defenses in circuit court. Within 30 days after a party serves upon counsel for all other parties, and upon any party not represented by counsel, certified copies of the district court docket sheet or district court record and a certified copy of the district court complaint or claim form, the party who was the defendant in district court shall file its answer, motions, and claims within the time and manner prescribed by the Arkansas Rules of Civil Procedure and the case shall otherwise proceed in accordance with those rules.
....
(e) Special Provisions For Appeals From County Court to Circuit Court. Unless otherwise provided in this subdivision, the requirements of subdivisions (a), (b), (c), and (d) govern appeals from county court to circuit court. A party may take an appeal from the final judgment of a county court by filing a notice of appeal with the clerk of the circuit court having jurisdiction over the matter within thirty (30) days from the date that the county court filed its order with the county clerk. A certified copy of the county court's final judgment must be attached to the notice of appeal. In the circuit-court proceeding, the party who was the petitioner or plaintiff in county court shall have all the obligations of the plaintiff in a case that has been appealed from district court to circuit court. If there were no defendants in the county-court proceedings, then the petitioner/plaintiff shall name all necessary, adverse parties as defendants in its complaint filed in circuit court.
Ark. Dist. Ct. R. 9(b), (c), (e).
In May 2015, Little Italy filed a petition with the Pulaski County clerk seeking to incorporate itself into a town. In February 2016, the county court denied the petition. Little Italy appealed to the Pulaski County Circuit Court by filing a notice of appeal in the circuit court and attaching a certified copy of the county court's judgment. The notice of appeal named Pulaski County as the only defendant.
Central Arkansas Water moved to intervene in the circuit court. It argued that it was an interested party that had appeared at the county court hearing and owned land within the boundaries of the proposed town. The motion was granted. That same day, Central Arkansas Water moved the circuit court to dismiss Little Italy's notice of appeal because it had failed to timely perfect an appeal and to state its claims. Specifically, Central Arkansas Water argued that Little Italy had failed to comply with District Court Rule 9(b)(3), which requires service of a certified copy of the district court docket sheet or record, and the complaint or claim form, within 120 days. Central Arkansas Water also argued that Little Italy did not satisfy District Court Rule 9(c), which requires that a party make all its claims in circuit court. Pulaski County filed a similar motion to dismiss and adopted Central Arkansas Water's motion.
Little Italy responded that it had properly perfected its appeal pursuant to Rule 9(e) by filing in the circuit court a notice of appeal and a certified copy of the county court's final judgment with the circuit court. Little Italy argued that Rule 9(e)'s filing requirement was in lieu of, not in addition to, subsection (b)'s requirement that an appealing party file either a certified copy of the district court's docket sheet-or a certified copy of the record and either a certified copy of the complaint or the claim form. Little Italy also disagreed that it had failed to sufficiently state its claims in the circuit court, citing Rule 9(b)(1)(D), which provides that the filing of the appeal documents "shall constitute the filing of the complaint for purposes of commencing the action in circuit court in accordance with Arkansas Rule of Civil Procedure 3(a)." Therefore, Little Italy argued, Rule 9 did not require it to draft and file in the circuit court a new complaint. Little Italy also said that its notice of appeal clearly stated the only claim it pressed in the county court: that the county court judgment should be reversed and that Little Italy should be permitted to incorporate.
Pulaski County replied in the circuit court that Little Italy had the obligation to assert its claims and the bases for its claims and had "butcher[ed]" the language of Rule 9(b)(1)(D), which actually states, "The filing of the certified copy of the district court complaint or claim form with the clerk of the court shall constitute the filing of the complaint for purposes of commencing the action in circuit court in accordance with Arkansas Rule of Civil Procedure 3(a)." (Emphasis added.) Central Arkansas Water argued that the motion to dismiss should be granted because Little Italy had failed to name all necessary parties (and specifically failed to name Central Arkansas Water) as required by Rule 9(e); failed to serve Central Arkansas as required by Rule 9(b)(1); and failed to attach the county court record to its notice of appeal.
The circuit court held a hearing on 12 October 2017. Much of what was argued to the county court was reargued to the circuit court. We will repeat enough of the second round to make the point. Among other things, Pulaski County argued that Little Italy had failed to set out the basis for the appeal in the form of a complaint or claim form. Central Arkansas Water argued, among other things, that Little Italy had erroneously not included it as a named defendant and that Little Italy had failed to identify its claims in the circuit court as required by Rule 9(c).
Little Italy argued that it perfected its appeal when it filed its notice of appeal with a certified copy of the county court's judgment. It also argued that it did not have an opposing party below but that it named Pulaski County as an adverse party because it was the entity that had determined incorporation was not appropriate. The remainder of its proper-party arguments are variations on a theme. More to this appeal's point, Little Italy told the circuit court that under Rule 9(c)(2), it was not required to file any other part of the county court record because "[t]he only thing we dispute is the final judgement." And again, Little Italy reiterated that even if additional county court documents needed to be filed, it was a procedural issue, not a jurisdictional death knell.
After expressing its concern that the rules governing appeals from district court or county court are "pretty vague," the circuit court found this:
The problem I have is that in 9(e) they said that the certified copy of the County Judge's final judgment must be attached to the notice of appeal in the circuit court proceeding. The party who is the petitioner or plaintiff in the county court shall have all the obligations of the plaintiff in a case that has been appealed from the district court to circuit [court]. And, and those obligations are that you've got to file the complaint and, and restate the issues and the reasons why you're appealing. And if there were no defendants in the county court proceeding, then petitioner/plaintiff shall name all necessary adverse parties as defendants. And we have that problem.
I'm going to grant the motion[.] ... I'm going to let you guys prepare a record and notice of appeal and then take it up and let them decide, and then to clarify this. And if, if I'm wrong, we can have a trial and make a decision.
The circuit court disagreed that refiling the complaint was procedural instead of jurisdictional and found that Central Arkansas Water should have been named as a party. The circuit court's written order adopted and incorporated its findings made at the hearing. Little Italy timely appealed the circuit court's order.
Here, Little Italy argues that its appeal was perfected when it filed a notice of appeal and a certified copy of the county court's judgment with the circuit court. It denies that it was also required to comply either with Rule 9(b) by filing a certified copy of the docket sheet-or a certified copy of the record and a certified copy of the complaint or claim form-or with Rule 9(c) by filing a complaint. Alternatively, Little Italy contends that its notice of appeal provides all the information required for a complaint and therefore substantially complies with Rule 9(c). Next, Little Italy asserts that while Central Arkansas may be an interested party, it was not a necessary party because "the County's interest and the interest of any party opposing incorporation of the Little Italy, including Central Arkansas, are the same."
Central Arkansas responds that the plain language of Rule 9(e), supported by the comments to the rule, requires a party appealing from county court to circuit court to (1) file a notice of appeal with a certified copy of the county court judgment attached, and (2) file a complaint naming all necessary adverse parties as defendants in the case. As we have stated, Rule 9(e) provides that
[a] party may take an appeal from the final judgment of a county court by filing a notice of appeal with the clerk of the circuit court having jurisdiction over the matter within thirty (30) days from the date that the county court filed its order with the county clerk. A certified copy of the county court's final judgment must be attached to the notice of appeal. In the circuit-court proceeding, the party who was the petitioner or plaintiff in county court shall have all the obligations of the plaintiff in a case that has been appealed from district court to circuit court. If there were no defendants in the county-court proceedings, then the petitioner/plaintiff shall name all necessary, adverse parties as defendants in its complaint filed in circuit court.
The comments to the 2008 amendment to Rule 9(e) explain that
[s]ome cases in county court involve petitioners and respondents, rather than plaintiffs and defendants, and some have no adverse party named. New subdivision (e) addresses these issues by making the party who sought relief in the county court the plaintiff in any appeal to circuit court and obligates that party to open the pleadings with a complaint naming all necessary, adverse parties as defendants.
Ark. Dist. Ct. R. 9(e) (reporter's notes to 2008 amend.) (emphasis added). Based on this language, Central Arkansas Water argues that the complaint is a necessary component, in addition to the notice of appeal, to perfect an appeal in circuit court. Though Little Italy filed the required notice of appeal, it did not also file a complaint. Consequently, the circuit court never acquired jurisdiction over the case and correctly dismissed Little Italy's appeal.
There was more argument on the issues, but the points have been made well enough. The circuit court granted the motion to dismiss because Little Italy had failed to file a complaint; and it failed to name all the necessary adverse parties.
We hold that Rule 9(e) required Little Italy to file in the circuit court a notice of appeal with an attached certified copy of the county court's judgment; and it was required to file a complaint naming all the necessary adverse parties to perfect its appeal. The plain language of the rule defeats Little Italy's assertion that its notice of appeal should be treated as a complaint. Rule 9 (as bolstered by the reporter's notes) requires both a notice of appeal and a complaint.
Our supreme court has made it clear that compliance with Rule 9 must be strict; substantial compliance will not suffice. Clark v. Pine Bluff Civil Serv. Comm'n , 353 Ark. 810, 120 S.W.3d 541 (2003). More recently, it has stated that parties must strictly comply only with subsections (b), (e), and (f) of Rule 9, which relate to perfecting appeals. Circle D Contractors, Inc. v. Bartlett , 2013 Ark. 131, 2013 WL 1279062. Subsection (e) is at issue in this appeal; and it was expressly called out in Circle D as being one that must be strictly applied.
If a party fails to perfect an appeal from an inferior tribunal to a circuit court in the time and manner provided by law, the circuit court never acquires jurisdiction of the appeal. Bd. of Zoning Adjustment v. Cheek , 328 Ark. 18, 942 S.W.2d 821 (1997). Because Little Italy failed to perfect its appeal by filing a complaint in the circuit court, the circuit court never acquired jurisdiction over the appeal from the county court. Because the circuit court lacked jurisdiction, this court lacks it too. Consequently, the appeal must be dismissed. Motor Cars of Nashville, Inc. v. Chronister , 2014 Ark. App. 430, 439 S.W.3d 101. We need not and do not address whether Central Arkansas Water was a necessary party and whether its argument had jurisdictional significance.
Dismissed.
Abramson and Brown, JJ., agree. | [
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BRANDON J. HARRISON, Judge
Leon Harris appeals the circuit court's order terminating his parental rights to his daughter, L.W. On appeal, he argues that the circuit court erred in (1) denying him reasonable accommodations in accordance with the Americans with Disabilities Act (ADA) and (2) finding that he had not remedied his drug issues. We affirm.
On 18 July 2016, the Arkansas Department of Human Services (DHS) petitioned for emergency custody of five-day-old L.W. DHS identified Tonia Wysong as L.W.'s mother and Harris as the putative father. The accompanying affidavit explained that when L.W. was born, both she and Wysong tested positive for cocaine and tricyclites. Wysong admitted to having used cocaine "about a month ago" but said that it was a "one-time deal." Wysong identified Harris as her fiancé and L.W.'s father. Two days after L.W. was born, Wysong tested positive for cocaine, oxycodone, and benzodiazepine. Harris was interviewed and said he was not on drugs and would like to be L.W.'s caregiver. DHS exercised an emergency seventy-two-hour hold on L.W. for neglect (newborn illegal-substance exposure) and maternal unfitness.
The court approved emergency custody of L.W. and found probable cause to continue custody with DHS based on Wysong's written stipulation. At that time, Wysong identified a different man as the putative father, and Harris was excused from the proceedings. However, in the adjudication order, the court again identified Harris as the putative father and ordered him to take appropriate steps to resolve the issue of paternity. L.W. was adjudicated dependent-neglected due to neglect and parental unfitness by the mother.
A November 2016 review order noted that Wysong no longer wanted to participate in the case and wished to consent to termination of her parental rights. In January 2017, the court noted that DHS had petitioned to terminate Wysong's parental rights; the court also found that Harris's paternity test results had not yet been received, but if Harris was the biological father, DHS was to conduct a home study.
An April 2017 order terminated Wysong's parental rights and found Harris was L.W.'s biological father. The court ordered that visitation commence between Harris and L.W. The court convened a permanency-planning hearing in June 2017 and authorized a plan to place custody with Harris and a concurrent goal of adoption. The court noted that Harris had consistently exercised visitation with L.W. and had submitted to random drug screens biweekly but had tested positive for cocaine in March 2017. Harris also had a home study done and had completed parenting classes.
In July 2017, the circuit court reviewed the case and found that Harris was in partial compliance with the case plan and court orders. The court found that
although he completed a drug and alcohol assessment, there are concerns regarding the truthfulness of the information he provided during the assessment. He tested positive for cocaine on the drug screen that was administered during a brief recess in today's hearing. However, he believes his prescription medication is making him test positive for cocaine. He has been visiting the juvenile and his interaction during visits is appropriate. He also participates in GIFT [Guided Interaction Family Therapy] Coaching, and has maintained stable housing and income.
The court found that L.W. could not be placed with Harris at that time and that L.W. "needs to be in the custody of a parent who is not using or abusing illegal substances or medications not prescribed for that parent."
In September 2017, the court entered another review order finding that Harris was "making very little progress in the plan to have the juvenile placed in his legal custody." The court again expressed concern with Harris's truthfulness on his drug-and-alcohol assessment and also expressed concern with Harris's continued contact with Wysong and Tammie Barnes, a former fiancée, "both of whom are drug users. There is not a plan in place for him to parent this child and keep her safe when she is with him alone. That is not good and that is scary." The court also noted that during visitation with L.W., Harris "sits on the floor with her to play with toys and to eat a snack. The juvenile is very active during visitation, and tries to leave the room throughout the visit. However, father shakes her snack bowl and tells her to come back when she runs off instead of keeping her confined." Finally, the court stated that Harris had "completed GIFT Coaching to address parenting and the development of routines around his physical limitations and the juvenile's care."
The court convened a two-day review hearing on October 19 and 25. At the commencement of the hearing, both DHS and L.W.'s attorney ad litem requested that the court change the goal of the case to adoption and authorize DHS to file a petition to terminate parental rights. Alexandria Forte, the family service worker assigned to the case, testified that since the last hearing, Harris had been compliant with the case plan and court orders. She agreed that Harris received Social Security disability as income, that he was participating in substance-abuse counseling, and that his drug-and-alcohol assessment recommended outpatient drug treatment. Forte explained that a hair-shaft test completed on September 12 had been positive for hydrocodone, cocaine, and benzoylecgonine. A urine screen performed on October 2 was negative.
She explained that Harris was still exercising visitation and that the visits were appropriate, although she noted Harris's habit of sometimes shaking snacks at L.W. to get her to come back to him instead of getting up to retrieve her. The program assistants in the room during visitation alerted Forte that it seemed inappropriate. Forte explained that Harris had been referred to individual counseling but that he did not feel he needed it. Finally, she agreed that Harris's home was appropriate but stated that DHS was nevertheless recommending termination because he had just recently admitted he had a drug problem. Harris had also said that he was around people who do drugs and that he had gotten drugs in his system while purchasing drugs for someone else. For those reasons, DHS felt it was a hazardous environment for L.W.
On cross-examination, Forte agreed that Harris is disabled and requires a walker. She also agreed that if someone is disabled and seeking custody of his or her child, DHS is obligated to individually tailor DHS services for the disabled parent. Forte explained that DHS had offered to provide a smaller room for Harris's visitation with L.W. but he declined the offer. In the larger visitation room, there are assistants who are supervising the visits and will step in if things get out of hand. She disagreed that DHS was obligated to suggest to Harris that he sit in a chair instead of on the floor now that L.W. is active; Forte stated, "I think he has to use his own judgment regarding whether he should sit in a chair or on the floor when he's visiting with his daughter. ... He is looking to gain custody of his daughter. If he cannot do it within a DHS office and he needs our assistance then, how will he do it at the house?" Forte said that she was not familiar with the requirements of the ADA but that Harris had been provided GIFT coaching, which is parenting classes that cater to his needs specific to his disability.
Harris testified that he had last used cocaine sometime around 1995 but that he had been around cocaine as recently as six months ago. He said he had last spoken to Wysong in July or August 2017 and that he was no longer in a relationship with Barnes, although she was pregnant with his child. Harris agreed that he needed some type of special accommodation to handle L.W.'s activity and suggested that he be allowed to close the door to the smaller visitation room. He also said that he had spoken to Forte about someone sitting inside the visitation room. When asked if DHS refused that request, Harris replied, "Well, it never happened." He later clarified that DHS had not refused to have someone sit in the room but that they also did not close the door.
On cross-examination, Harris explained that Wysong had contacted him to ask for money and that he did not initiate contact. He also stated that he was physically disabled from a gunshot injury nine years ago and that he receives Social Security disability income. He acknowledged that he received GIFT coaching because of his physical disability and said that the GIFT coaching had been helpful.
In its review order, the circuit court found that placing custody with a parent was no longer an appropriate plan and changed the goal of the case to adoption. The court cited Harris's continuing drug use and specifically found Harris not credible about his use of cocaine. The court also found that
the father's disability itself does not prevent him from being able to provide for the juvenile's needs. However, the father seems to focus more on what DHS does not do for him than the efforts he can make, with his physical limitations, to demonstrate he can be the fit parent this juvenile's [sic] needs. The Court also points out that it is father's cocaine use, the denial of that cocaine use, purchasing cocaine for a family member, being around friends and family members who use cocaine all pose a great risk for the juvenile's safety and well-being. Father's physical limitation, together with his lifestyle of purchasing cocaine, being around others who use cocaine, and likely using cocaine himself, pose serious risks to the juvenile's safety.
Finally, the court found that DHS had made reasonable efforts to provide family services, including services that addressed Harris's needs due to his disability.
On 17 November 2017, Harris filed a motion for accommodations, arguing that other than GIFT coaching, he had not been provided or offered additional occupational therapy to assist him with effectively caring for his daughter. He asserted that he was being denied the benefits of government services to which he is entitled under the ADA.
DHS petitioned to terminate Harris's parental rights on November 27, and the circuit court convened a hearing on 24 January 2018. The court first addressed Harris's motion for accommodations. Danielle Kimbrough, the DHS caseworker, explained that a family-team meeting was held in December 2017 and that she specifically asked Harris what accommodations DHS could make for him during visitation. Harris's response was that he did not need any accommodations. Kimbrough also said that she had discussed occupational therapy with Harris, and "it came down to he was supposed to contact St. Vincent's Hospital, where he received occupational therapy when he first got injured, to see if they can provide some more occupational therapy. And I also called other providers to see if they could do OT for Mr. Harris." Kimbrough also reiterated that DHS had offered Harris a smaller visitation room, but he did not take advantage of that. Harris confirmed that he had discussed starting occupational therapy again and stated that he did not need DHS's assistance because it was covered by his insurance.
After hearing testimony and arguments from counsel, the circuit court found that DHS had made reasonable accommodations under the ADA and that the case would proceed to termination. Danielle Kimbrough was recalled and testified that she had been the caseworker for L.W.'s case since September 2017. She said that L.W. was placed in a licensed foster home and that she was doing well. Kimbrough stated that DHS had offered Harris services in the form of visitation, family counseling, and a drug-and-alcohol assessment. She said that Harris had been cooperative in getting services completed but that he had not been truthful about his addiction. She explained that he had tested positive for cocaine in March 2017, July 2017, and September 2017. Kimbrough expressed that Harris had credibility issues because he had lied in his drug-and-alcohol assessment and lied in court about his drug use. She opined that there was a "strong chance" that Harris's drug use would continue even if L.W. was placed in his home. She also expressed concern over Harris's continued contact with Wysong and Barnes, his former fiancée, because both women have drug problems. In her opinion, continuing to offer services to Harris would not result in L.W. being placed with him within a time frame consistent with her needs.
Angela Brown, an adoption specialist, testified that L.W. was adoptable and that a data-matching search resulted in 575 potential adoptive families.
Harris testified that he had last used an illegal substance, cocaine, in August 2017. He said that he had not knowingly lied to anyone about his drug use but agreed that it was possible that he had "gotten confused a few times." He admitted that he had made a mistake in using again but said that he was doing his best to do what DHS was asking him to do. He was attending meetings, trying to stay positive, and no longer associating with people who do drugs. He conceded that he was not ready to take L.W. home that day and that he needed some additional occupational therapy.
At the end of the hearing, the court found that DHS had proved two statutory grounds for termination: the "subsequent factors" ground and the "aggravated circumstances" ground. See Ark. Code Ann. § 9-27-341(b)(3)(B)(vii) & (ix)(a)(3) (Supp. 2017). The court's written order made the following findings:
[T]he court knows Mr. Harris loves his child, but love is not enough to be a fit parent for a child. Mr. Harris is not credible about his drug use and other testimony he has given in this case. While the Court can say that Mr. Harris has not been maliciously untruthful-the Court can and will say that he has been willfully deceitful. ... Father likes to live on the edge of drug activity and drug use, and to be around people who use drugs. He had a relationship with the biological mother and with his former fiancé[e], both of whom used drugs. He handled drugs for others just a few months ago. He now admits he used drugs in August 2017, when he handled drugs around that time. The Court does find father credible about this-that he has lied before. The Court further finds father was not credible when he testified today that he is telling the truth about his drug use; however, his testimony was credible when he testified that he is not ready to take the juvenile home today, as he needs more therapy.
It is clear that, despite the offer of services designed to place [L.W.] in her father's custody, he has shown the incapacity and indifference to rehabilitate the circumstances that prevent placement of [L.W.] in his custody. He is not a fit parent; he is an unfit parent. It is also painfully clear that there is little likelihood that services to the family will result in successful reunification. Therefore, the Court makes a finding of aggravated circumstances.
The court concluded that L.W. needs permanency and "deserves a parent or parents who are fit, are free from using illegal substances, and who will not expose her to the dangers of being around illicit drug use; placing [L.W.] in the custody of her father will put her at risk of harm." The court also found that L.W. is adoptable. Thus, termination of Harris's parental rights was in L.W.'s best interest. Harris has timely appealed this order.
In appeals involving the termination of parental rights, our standard of review is de novo. Johnson v. Ark. Dep't of Human Servs. , 2018 Ark. App. 221, 547 S.W.3d 489. DHS must prove allegations by clear and convincing evidence, which is proof that will produce in the fact-finder a firm conviction that the allegation has been established. Cotton v. Ark. Dep't of Human Servs. , 2012 Ark. App. 455, 422 S.W.3d 130. The appellate inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Johnson , supra. We will not reverse unless the circuit court's findings are clearly erroneous, giving due regard to the court's opportunity to judge the credibility of the witnesses. Cotton , supra. A finding is clearly erroneous when, although there is evidence to support it, on the entire evidence, we are left with a definite and firm conviction that a mistake has been made. Id. The termination of parental rights is an extreme remedy and in derogation of the natural rights of parents. Johnson , supra. Accordingly, the rights of natural parents are not to be passed over lightly; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id.
The 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 child. Johnson , supra. The first step requires proof of one or more statutory grounds for termination; the second step, the best-interest analysis, includes consideration of the likelihood that the juvenile will be adopted and of the potential harm caused by returning custody of the child to the parent. Id. Only one statutory ground is necessary to terminate parental rights. Id.
For his first point, Harris argues that the circuit court erred in denying him reasonable accommodations in accordance with the ADA. Arkansas Code Annotated section 9-27-341(b)(3)(B) provides that a circuit court may terminate parental rights if it finds by clear and convincing evidence:
(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 of 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.
(b) The department shall make reasonable accommodations in accordance with the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., to parents with disabilities in order to allow them meaningful access to reunification and family preservation services.
Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) & (b) (Supp. 2017). Parental rights may also be terminated if the court finds that the parent has subjected the juvenile to aggravated circumstances, which includes a determination by a judge that there is little likelihood that services to the family will result in successful reunification. Id. at (ix)(a)(3).
The ADA defines a "disability," in part, as a physical or mental impairment that substantially limits one or more major life activities of such individual, and "major life activities" include walking, standing, and performing manual tasks. 42 U.S.C. § 12102(1) & (2)(A) (2018). "Auxiliary aids and services" are defined as
(A) qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments;
(B) qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments;
(C) acquisition or modification of equipment or devices; and
(D) other similar services and actions.
Id. at 12103(1).
On appeal, Harris argues that DHS failed to make, and the circuit court failed to order, reasonable accommodations to allow him meaningful access to reunification and family-preservation services. He suggests that a reasonable accommodation would have been an auxiliary parent aide to assist during visitation or a trial placement in his home so he could demonstrate how he would contain L.W. while she was small and mobile. He asserts that without these reasonable accommodations, neither of the statutory grounds relied on by the circuit court is supported by clear and convincing evidence because both grounds require either meaningful access to appropriate family services (subsequent factors) or a demonstration that an additional service would not have likely resulted in reunification (aggravated circumstances).
DHS responds that Harris's argument does not compel reversal of the termination. First, the circuit court terminated Harris's rights based on two statutory grounds, subsequent factors and aggravated circumstances, and the aggravated-circumstances ground does not require a finding of "meaningful services." Second, even if DHS did fail to provide reasonable accommodations under the ADA, it would not compel reversal of the termination. See J.T. v. Ark. Dep't of Human Servs. , 329 Ark. 243, 257, 947 S.W.2d 761, 768 (1997) (holding that a failure to make reasonable accommodations would not negate a circuit court's decision to terminate parental rights because a "parent's rights under the ADA must be subordinated to the protected rights of the child."). DHS asserts that the record shows it did make efforts to provide Harris with services-including GIFT coaching that was tailored to his disability-but Harris failed to benefit from the services or to implement what he had learned. DHS also notes that there is no record of any specific reasonable accommodation that was requested by Harris and denied; Harris made only vague and general assertions below that DHS had not accommodated his disability. His suggestion that an "auxiliary parent aide" would have been appropriate is raised for the first time on appeal; in addition, DHS points out that a personal aide such as that is not covered by the definition of "auxiliary aids and services." Finally, DHS disputes that this accommodation would have changed the course of the case and that Harris is essentially asking this court to reweigh the evidence.
We hold that the circuit court did not err in finding that DHS had made reasonable efforts to provide family services, including services that addressed Harris's needs due to his disability. There was no specific accommodation that Harris requested that was denied. He never requested the "auxiliary parent aide" that he suggests on appeal, and the case never progressed to the point at which an at-home trial placement was feasible. Finally, there is no indication that any additional services would have changed the outcome of the case or made it more likely for L.W. to be placed in Harris's custody. We therefore affirm on this point.
For his second point, Harris argues that the circuit court erred in finding that he had not remedied his drug issues. Harris contends that the evidence did not support a finding that he was not "free from illegal substances" and that the circuit court "ignored other crucial evidence demonstrating [his] sobriety after August 2017." Harris notes his negative drug screens for five months prior to the termination hearing, his "very few" positive drug screens during the case, and his diligence in working the case plan and faithfully exercising visitation. Harris concludes that there was insufficient evidence to support the court's finding that he had failed to remedy his drug issues or that he was incapable of benefiting from further reunification services. For the same reason, he argues, the court's potential-harm finding is likewise unsupported by the evidence. Harris asserts that the circuit court "simply speculated that [he] would expose L.W. to a drug lifestyle" and that placing L.W. in his care would put her at risk of harm.
In response, DHS recounts the circuit court's ongoing concern with Harris's truthfulness regarding his drug use and his positive tests for cocaine in March, July, and September 2017. And even while denying drug use, Harris admitted being around others using drugs and picking up cocaine for someone else. In October 2017, Harris admitted having a cocaine addiction, seven months after he had been identified as L.W.'s biological father and fifteen months after L.W. had been placed in DHS's custody. DHS concludes:
At the time of the termination of Harris's parental rights, L.W. had been in foster care for nearly 18 months. Harris had approximately 10 of these 18 months to convince the court that he had resolved his drug abuse issues and no longer associated with drug users, but he never reached a point where L.W. could be returned to his custody, even as a trial placement, due to positive drug tests, admissions to associating with drug users, and issues with his credibility.
We hold that the circuit court did not clearly err in finding that Harris had not remedied his drug issues. Harris tested positive for cocaine three times after he had been identified as L.W.'s biological father and a case plan was put in place with the goal of placing L.W. in his custody. In addition, the circuit court found that Harris had not been credible or truthful regarding his drug use or affiliations with drug users. Appellate courts defer to the circuit court's credibility determinations, and in matters involving young children's welfare, give great weight to their observations. Osborne v. Ark. Dep't of Human Servs. , 98 Ark. App. 129, 252 S.W.3d 138 (2007). This reasoning supports both the circuit court's findings on the statutory grounds and its potential-harm finding. Therefore, we affirm.
Affirmed.
Virden and Klappenbach, JJ., agree.
DHS and L.W.'s attorney ad litem filed a joint brief, but for simplicity's sake, we refer to appellee as "DHS." | [
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Trotter said she was unaware that she was a beneficiary, but the medical notes indicated that Jelinek did inform Trotter that she would be the beneficiary of his will. Jelinek was transferred to a hospice facility on February 9, and he died on February 19, 2017.
Trotter informed Satterfield of Jelinek's death, and the will was read to Trotter and Wood. Trotter was the primary beneficiary of the will, receiving Jelinek's house in Little Rock and the residue of his entire estate including a family trust. Jelinek made other specific bequests to friends, neighbors, his mother's caretakers, and the caretakers' church, none of whom had any relationship to Trotter. Trotter filed a petition to probate the will and appoint herself as administratrix on March 8, 2017, and it was admitted and approved in an order filed on March 9, 2017.
In May 2017, Gustin, one of Jelinek's two surviving first cousins, filed a petition to set aside the order admitting the will to probate. Gustin argued that Trotter (1) had procured the will and (2) had exercised undue influence over Jelinek prior to his hospitalization, given his ill health and her short-term-but-close relationship with him. There was no contention that Jelinek lacked capacity to execute the will because he was sharp and alert up until his death, and Gustin conceded that there was no undue influence exerted on February 6, 2017, the date the will was created and executed.
Gustin had not seen Jelinek since 1976, although she claimed that she and Jelinek grew up in a close-knit Catholic family. Gustin lived out of state and had not visited Jelinek, but she said that she kept in touch with cards, letters, and texts. Jelinek's mother had died in 2015, and Gustin was a beneficiary of her will, but Gustin did not attend her funeral because she did not learn of her death until after the fact. Gustin said that Jelinek had written to her about his mother's death and had written down his cell phone number. Gustin believed that Jelinek was an alcoholic and that he smoked marijuana all the time; he had told her of two DWIs. Gustin contended that Trotter had taken advantage of her short friendship with a very-ill Jelinek.
Trotter agreed that Jelinek had received a Christmas card that year from Gustin but that he never had very positive things to say about her. Trotter noted that Jelinek had changed cell phones when he moved from Texas to Arkansas, so if Gustin used the Texas phone number, he never got those messages. Trotter said that she (Trotter) was like a daughter to Jelinek. Trotter stated that she did not have Gustin's contact information to give to the attorney when Jelinek died. Trotter explained who the individuals were who received specific monetary bequests from Jelinek, and she remembered that Jelinek went with his mother's caretakers to their Baptist church a couple of times even though he was Catholic.
The probate court ultimately found that there was no procurement, which Gustin does not contest on appeal. The probate court found that Trotter did not exercise undue influence over the decedent prior to his hospitalization, stating that Gustin had failed to present any evidence of physical coercion exerted against Jelinek or any fear exhibited by Jelinek. The probate court acknowledged that Trotter's friendship with Jelinek less than a year before his death and her having moved into his house mere months prior to his hospitalization and death could be considered suspicious circumstances. The probate court found, however, that the evidence showed Jelinek was never in a weakened mental state up until his death, and Gustin had failed to present any evidence to indicate otherwise leading up to his hospitalization. The probate court found that despite Gustin's claim that she and Jelinek were close, there was "no real, positive relationship" between them, so it was "not impossible, therefore, that Mr. Jelinek would draft a will providing for those that he was close to in his last days as opposed to distant relatives." The probate court decided that on the totality of the circumstances, "there is no indication that Ms. Trotter took any steps to overcome Mr. Jelinek's free will" and that there was no evidence of undue influence in the time leading up to the will's execution. Gustin's appeal followed.
Arkansas caselaw related to undue influence is as follows. 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). 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, 432 S.W.3d 66. A confidential relationship arises between a person who holds power of attorney and the grantor of that power. Darr , supra.
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 in which 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. Undue influence is defined as not the legitimate influence which springs from natural affection but the malign influence that results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property. Darr , supra. 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. Id. A testator has the legal right to dispose of his or her property in any manner that he or she sees fit, even if the disposition might appear on its face to be unnatural or inequitable, so long as such disposition expresses the will of the testator. Dunklin v. Black , 224 Ark. 528, 275 S.W.2d 447 (1955) ; Breckenridge v. Breckenridge , 2010 Ark. App. 277, 375 S.W.3d 651.
In this case, Gustin conceded that the testator possessed testamentary capacity at the time he executed his will, and Gustin does not contest the probate court's finding that Trotter did not procure the will. Thus, we are limited to reviewing the finding that the testator was not subjected to undue influence in the time leading up to the testator's hospitalization. Trotter clearly had a confidential relationship with the testator due to her having his power of attorney, giving rise to a rebuttable presumption of undue influence. Nonetheless, we see no clear error in the probate court's order. On de novo review, it is clear that, based on the weight of the evidence and the credibility determinations made by the probate court, Trotter effectively rebutted the presumption of undue influence.
Jelinek gave bequests to friends who were important to him and to a church he had attended, and he gave the remainder to Trotter, who had cared for him in the months leading up to his death. A testator's decision to favor a person with whom he had developed a close and affectionate relationship is not, of itself, proof that the favored beneficiary procured the will by undue influence. Hodges v. Cannon , 68 Ark. App. 170, 5 S.W.3d 89 (1999). The issue of undue influence will frequently depend on the credibility of witnesses, and we give due deference to the superior position of the trial judge to determine the credibility of the witnesses and the weight to be accorded their testimony. See Pyle v. Sayers , 344 Ark. 354, 39 S.W.3d 774 (2001). Jelinek was a widower with no children. Jelinek formed a close friendship with Trotter and entrusted her with his power of attorney. Jelinek relied on Trotter to provide him with personal care and transportation and to run his household. The probate court found that he did not have a close relationship with his cousin Gustin, whom he had not seen since 1976 and with whom he had limited contact. Jelinek was competent, despite his illnesses, to decide the disposition of his estate. After our de novo review of the evidence in this case, we are not convinced that the probate court clearly erred in rejecting Gustin's claim of undue influence and in denying Gustin's motion to set aside the will.
Affirmed.
Gruber, C.J., and Vaught, J., agree.
Jelinek gave $5000 to Tamela Washington (his mother's caretaker), $5000 to Portia Washington (his mother's caretaker), $2000 to Janet Murphy (his friend), $1000 to Jim Eager (his neighbor), $1000 to Jan Eager (his neighbor), and $10,000 to New Bethel Baptist Church in Little Rock (Tamela and Portia Washington's church). | [
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In October 2017, the State filed a Rule 2(f) petition requesting permission to appeal to this court and sought a discovery stay pending our review. We granted the Rule 2(f) petition and stayed the discovery.
II. Mootness
A case is moot when a decision would not have any practical legal effect upon a then existing legal controversy. Dillon v. Twin City Bank , 325 Ark. 309, 924 S.W.2d 802 (1996). Without question, our decision in this matter would have no effect on the now-resolved controversy as a result of our decision to reverse and dismiss in Protect Fayetteville v. City of Fayetteville , 2019 Ark. 30, 565 S.W.3d 477. This alone does not foreclose our consideration of the issues on appeal.
We have recognized two exceptions to the mootness doctrine: matters that are capable of repetition yet evading review and matters involving a substantial public interest that are likely to be litigated in the future. Ark. Gas Consumers, Inc. v. Ark. Public Serv. Comm'n , 354 Ark. 37, 118 S.W.3d 109 (2003). In limited cases we have applied one of the exceptions and addressed the issues raised despite completion of the controversy between the parties. See Nathaniel v. Forrest City Sch. Dist. No. 7 , 300 Ark. 513, 780 S.W.2d 539 (1989) ; Owens , 299 Ark. 373, 772 S.W.2d 596 ; Cummings v. Washington Cty. Election Comm'n , 291 Ark. 354, 724 S.W.2d 486 (1987) ; Robinson v. Ark. State Game & Fish Comm'n , 263 Ark. 462, 565 S.W.2d 433 (1978) ; Dotson v. Ritchie , 211 Ark. 789, 202 S.W.2d 603 (1947) ; Carroll v. Schneider , 211 Ark. 538, 201 S.W.2d 221 (1947).
We have explained that "where considerations of public interest or the prevention of future litigation are present, the choice remains ours as to whether we may elect to settle an issue, even though moot." Duhon v. Gravett , 302 Ark. 358, 360, 790 S.W.2d 155, 156 (1990) ; see also Ark. Gas Consumers, Inc. , 354 Ark. at 47-48, 118 S.W.3d at 115. Duhon concerned the constitutionality of the writ of execution statutes. Because this court foresaw future litigation and recognized the substantial public interest involved, it chose to resolve the constitutional issue, even though the judiciable controversy was moot. Id. This court has applied the substantial-public-interest exception to address moot issues from 1892 to as recently as 2003. See, e.g. , Ark. Gas Consumers, Inc. , 354 Ark. 37, 118 S.W.3d 109 ; Forrest Constr., Inc. v. Milam , 345 Ark. 1, 43 S.W.3d 140 (2001) ; Wilson v. Pulaski Ass'n of Classroom Teachers , 330 Ark. 298, 954 S.W.2d 221 (1997) ; Owens v. Taylor , 299 Ark. 373, 772 S.W.2d 596 (1989) ; Cain v. Carl-Lee , 171 Ark. 155, 283 S.W. 365 (1926) ; Wilson v. Thompson , 56 Ark. 110, 19 S.W. 321 (1892).
The issues of legislative and executive privilege raised here are of first impression in Arkansas. Guidance is needed for the public in pursuing litigation against the State, for the legislative and executive branches in conducting their business and responding to discovery requests, and for circuit courts when ruling on discovery disputes. This court is mindful that many issues involving privilege will not be resolved completely until a specific factual situation is before us. Nevertheless, the substantial public interest obliges us to decide the threshold issue of whether these privileges exist in Arkansas.
III. Legislative Privilege
The legislative privilege is derived from the Speech and Debate Clause of the Arkansas Constitution. It states that "for any speech or debate in either house," members of the General Assembly "shall not be questioned in any other place." Ark. Const. art. 5, § 15.
Our primary goal in construing and interpreting a constitutional provision is to ascertain and give effect to the intent of Arkansans. Martin v. Kohls , 2014 Ark. 427, 444 S.W.3d 844. We give the language of the constitutional provision its plain and ordinary meaning. Kelly v. Martin ex rel. State , 2014 Ark. 217, 433 S.W.3d 896. In addition, when we engage in constitutional construction and interpretation, we look at the history of the provision. Bryant v. English , 311 Ark. 187, 193, 843 S.W.2d 308, 311 (1992) ; Gatzke v. Weiss , 375 Ark. 207, 211, 289 S.W.3d 455, 458 (2008). We have also compared prior versions of our constitution to interpret its meaning. See State v. Brown , 356 Ark. 460, 469, 156 S.W.3d 722, 728 (2004).
Although this court has not previously construed the Speech and Debate Clause, we do not need to look far to ascertain its objectives. The language in our clause is identical to the Speech and Debate Clause in the United States Constitution. Given the history of the provision, this appears to have been deliberate. The Speech and Debate Clause in our prior constitution of 1868 contained the following language: "And they [Senators and Representatives] shall not be questioned in any other place for remarks made in either House." Ark. Const. of 1868, art. 5, § 12. In the 1874 Constitution, which contains the current version of the clause, the people of Arkansas replaced the prior version with the exact language of the United States Constitution's Speech and Debate Clause.
Typically, when this court interprets constitutional provisions that are identical or virtually identical to the federal constitution, we adopt the interpretation of the United States Supreme Court. Compare Mullinax v. State , 327 Ark. 41, 938 S.W.2d 801 (1997) ; Stout v. State , 320 Ark. 552, 898 S.W.2d 457 (1995), with Brown , 356 Ark. 460, 156 S.W.3d 722. For this reason, we conclude, like the Supreme Court, that the Speech and Debate Clause affords legislators privilege from certain discovery and testimony and that the privilege extends beyond statements and acts made on the literal floor of the House. We therefore do not read the Speech and Debate Clause as narrowly as the circuit court did in this case and reverse his interpretation. However, we refuse to further set the parameters of the privilege without more facts before us. This is the more prudent course. The development will occur in future cases based on specific facts before us.
IV. Executive Privilege
Next, we address a second issue of first impression-whether executive privilege exists in Arkansas. We conclude that the Arkansas Constitution provides for the privilege.
Our state constitution provides a specific separation-of-powers provision:
§ 1. The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to-wit: Those which are legislative, to one, those which are executive, to another, and those which are judicial, to another.
§ 2. No person or collection of persons, being of one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.
Ark. Const., art. 4, §§ 1, 2. The separation-of-powers doctrine is "a basic principle upon which our government is founded and should not be violated or abridged." Fed. Express Corp. v. Skelton , 265 Ark. 187, 197-98, 578 S.W.2d 1, 7 (1979). Our separation-of-powers jurisprudence closely guards the balance of powers between branches, with each branch being delegated specified powers. "The legislative branch ... has the power and responsibility to proclaim the law through statutory enactments. The judicial branch has the power and responsibility to interpret the legislative enactments. The executive branch has the power and responsibility to enforce the laws as enacted and interpreted by the other two branches." Id.
The executive privilege was first and perhaps most notably exercised in United States v. Nixon , 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), when the United States Supreme Court recognized that the executive privilege was necessary to provide the chief executive with access to candid advice in order to explore policy alternatives and reach appropriate decisions. Other state courts have followed Nixon because "refusal to recognize the gubernatorial privilege would subvert the integrity of the governor's decision-making process, damaging the functionality of the executive branch and transgressing the boundaries set by our separation of powers doctrine." Freedom Found. v. Gregoire , 178 Wash. 2d 686, 310 P.3d 1252 (2013) ; see Republican Party of N.M. v. N.M. Taxation & Revenue Dep't , 283 P.3d 853 (N.M. 2012) ; State ex rel. Dann v. Taft , 109 Ohio St.3d 364, 848 N.E.2d 472 (2006) ; Guy v. Judicial Nominating Comm'n , 659 A.2d 777 (Del. Super. Ct. 1995) ; Hamilton v. Verdow , 287 Md. 544, 414 A.2d 914 (1980) ; Nero v. Hyland , 76 N.J. 213, 386 A.2d 846 (1978). Considering the separation-of-powers doctrine, we hold that the executive privilege also exists in Arkansas. Again, its application and limitations will bear out in future cases. We therefore reverse the circuit court's finding that executive privilege does not exist in Arkansas.
Reversed and dismissed.
Special Justices Hugh Finkelstein and Maureen Hazinski Harrod join in this opinion.
Baker and Wynne, JJ., concur.
Goodson and Hart, JJ., not participating. | [
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The circuit further asked the following questions of Stewart Farms:
THE COURT : If you go to paragraph-the first page of the contract?
[ STEWART FARMS ]: Yes, sir.
THE COURT : It states, "This contract was made and accepted by the seller and Erwin-Keith, Inc. in the State of Arkansas and is governed by the laws of the State of Arkansas. Failure to notify Erwin-Keith of any discrepancies in body of this contract within 15 days of receipt will constitute acceptance." It says, "For additional information concerning the terms and conditions of the buyer, see the reverse side of this document." What I have attached is Exhibit 1, 2 and 3 and 4 is a Grain Purchase Contract, and is the second page the reverse side of the document?
[ STEWART FARMS ]: Allegedly. All we have is the first page of the document. The reason they weren't attached to the original complaint is we didn't have them. They were in the possession of defendant. This is what was provided.
THE COURT : Okay.
[ STEWART FARMS ]: That goes to my point that there's no place to initial or reference that these were the terms and conditions of the contract.
THE COURT : Okay. Also, as to the defendant argues that Mr. Henry Stewart ratified the contracts 1 and 2 by his signature [on the first page] in the right-for the record I'm going to say right column of Exhibits 1, 2, 3 and 4, and what I'm going to do is I'm going to have these introduced as the Court's Exhibit 1 to the hearing today. Okay?
....
What is your response to the ratification argument?
[ STEWART FARMS ]: Our response is that he ratified the front page of these documents. There's not any dispute about the front page of the contracts.
THE COURT : Okay.
[ STEWART FARMS ]: The question is the reverse side.
THE COURT : Okay.
The circuit court thereafter filed an order denying Erwin-Keith's motion to compel arbitration and made the following pertinent findings:
1. This Court has jurisdiction of the subject matter and the parties to this action.
2. The Court finds that there is no agreement to arbitrate between the parties.
....
4. The four contracts introduced into the evidence as Exhibits 1, 2, 3, and 4 have standard language in the last paragraph of the contracts that states "concerning the terms and conditions of the Buyer see the reverse side of this document."
5. The four contracts that were introduced as Exhibits do not have a reverse side. The four contracts listed as Exhibits have an additional page that contains an arbitration agreement that has no reference to the first page of the Grain Purchase Agreement.
6. The plaintiff did not offer any testimony regarding the signing of the contract and the additional page of the contract with the arbitration language, which was not the reverse side of page 1 of the Grain Purchase Agreement.
7. That the Court simply cannot find that an arbitration agreement exists between plaintiff, Henry Lee Stewart, Jr., d/b/a Stewart Farms, and Erwin-Keith, Inc., defendant in this matter based on the evidentiary record.
8. That after considering all of the matters presented, the Court hereby denies the Motion to Compel Arbitration in all respects.
This appeal followed.
II. Standard of Review
An order denying a motion to compel arbitration is an immediately appealable order. Ark. R. App. P.-Civil 2(a)(12). On appeal, this court reviews a circuit court's order denying arbitration de novo on the record. Alltel Corp. v. Rosenow , 2014 Ark 375, 2014 WL 4656609. Arbitration agreements are simply a matter of contract between the parties, and any dispute is a matter of contract construction. Courtyard Gardens Health and Rehab., LLC v. Quarles , 2013 Ark. 228, 428 S.W.3d 437. We are not bound by the circuit court's decision, but in the absence of a showing that the circuit court erred in its interpretation of the law, we will accept its decision as correct on appeal. Madison Cos., LLC v. Williams , 2016 Ark. App. 610, 508 S.W.3d 901.
III. Whether an Arbitration Agreement Existed
Appellant's sole argument on appeal is that the circuit court erred in finding that no arbitration agreement existed between the parties based on the evidentiary record. It argues that although it introduced into evidence two separate copied pages, the only conclusion could have been that the first page was a copy of the front page of the contract and that the second page was in actuality a copy of the "reverse page" of the contract. It further argues that this must be the only logical presumption because the front page references "terms and conditions," and the second page was entitled "TERMS AND CONDITIONS." It finally reasons that appellee failed to contest that the second page was not the reverse page; therefore, the circuit court erred in denying the motion to compel arbitration. We disagree.
Our supreme court has repeatedly stated that the threshold inquiry is whether an agreement to arbitrate exists; that is, whether there has been mutual agreement, with notice as to the terms and subsequent assent. Alltel Corp. v. Sumner , 360 Ark. 573, 203 S.W.3d 77 (2005). Because arbitration is a matter of contract between the parties, it is a way to resolve those disputes-but only those disputes-that the parties have agreed to submit to arbitration. Asset Acceptance, LLC v. Newby , 2014 Ark. 280, 437 S.W.3d 119. For a party to assent to a contract, the terms of the contract, including an arbitration agreement, must be effectively communicated. Id. Therefore, appellant was required to produce specific evidence that appellee was subject to the contract and demonstrate that the arbitration clause in that agreement was communicated to appellee or that it assented to that clause. See id.
Here, appellant failed to satisfy its burden to prove that appellee was subject to page two of the alleged contracts and demonstrate that the arbitration clauses in those contracts were communicated to appellee or that it assented to those clauses. Instead, each alleged contract included copies of two separate pages. Although it is plausible, as counsel contends on appeal, that the first page was a copy of the front page and the second page was a copy of the reverse page, there was no affidavit or testimony presented to attest that was the case. Nor is there any other way that we can tell from the second page that those were, in fact, the terms and conditions referenced on the first page and that those specific terms and conditions were communicated to appellee. For example, another form of proof could have been provided by a signature, initials, or other acknowledgment by appellee on the second page. However, there was no signature, initials, or any other acknowledgment by appellee on the second page.
Although appellant contends that appellee admitted that the second page was the "reverse page," we do not find that to be the case after a full review of the record. After the circuit court expressed its concern at the hearing over whether the second page was, in fact, the "reverse page," appellee stated that it did not have copies of any of the contracts and that appellant provided those documents as the alleged contracts. Moreover, appellee specifically stated "[t]hat goes to my point that there's no place to initial or reference that these were the terms and conditions of the contract .... There's not any dispute about the front page of the contracts.... The question is the reverse side. " (Emphasis added.) In other words, appellee did contest whether the terms and conditions on the second page were the terms and conditions referenced on the first page as the "reverse side," and we cannot read appellee's statements here as an admission.
Finally, appellant argues in its reply brief that it conclusively demonstrated that the second pages of the contracts were, in fact, the reverse sides of the double-sided contracts in its motion for reconsideration and for expedited ruling. However, appellant did not subsequently amend its notice of appeal to include an appeal from the denial of that motion. Therefore, that documentation is not before us on appeal. Because appellant failed to produce specific evidence that appellee was subject to page two of the alleged contracts and demonstrate that the arbitration clauses in those contracts were communicated to appellee or that it assented to those clauses despite its burden to do so, we must affirm the circuit court's denial of the motion to compel arbitration.
Affirmed.
Gruber, C.J., and Whiteaker, J., agree.
Appellant filed a timely motion for reconsideration, which was subsequently deemed denied by the circuit court, but appellant filed its notice of appeal designating only the order denying its motion to compel arbitration before the circuit court's deemed denial. Under Arkansas Rule of Appellate Procedure-Civil 4(b)(2) (2017), a notice of appeal filed before the disposition of a posttrial motion is effective to appeal the underlying judgment or order, but to also seek an appeal from the grant or denial of the motion, an amended notice of appeal must be filed within thirty days, and we have no such amended notice of appeal in this case. Thus, only the order denying motion to compel arbitration is before us on appeal.
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BART F. VIRDEN, Judge
Appellant Hope Medical Park Hospital d/b/a Medical Park Doctors Group (Hope) appeals from a Hempstead County jury's verdict in favor of appellees Carrie and Thomas Varner on their negligence claim, which arose after Carrie fell and was injured on the hospital's grounds. Hope argues that it was entitled to judgment as a matter of law because it owed Carrie no duty to warn her of a known danger. We reverse and dismiss.
I. Procedural History
In January 2012 the Varners filed an amended complaint against Hope and other defendants alleging negligence, along with a derivative claim on behalf of Carrie's spouse, stemming from an incident that occurred on February 18, 2009. Carrie alleged that she had been walking between a parking lot and the hospital's entrance when she tripped over a tree root, fell, and sustained injuries to her head, left knee, right shoulder, and back.
A jury trial was held on March 7 and 8, 2017. The jury returned a verdict for Carrie and Thomas and awarded damages of $350,000 and $0, respectively. Hope filed a motion for judgment notwithstanding the verdict (JNOV) or, alternatively, a motion for a new trial. Following a hearing, both motions were denied. Hope appeals from the trial court's denial of its motion for directed verdict at trial and its subsequent motion for JNOV.
II. Standard of Review
Our standard of review of the denial of a motion for directed verdict is whether the jury's verdict is supported by substantial evidence. Med. Assurance Co., Inc. v. Castro , 2009 Ark. 93, 302 S.W.3d 592. Similarly, in reviewing the denial of a motion for JNOV, we will reverse only if there is no substantial evidence to support the jury's verdict, and the moving party is entitled to judgment as a matter of law. Id. Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Id. In determining whether there is substantial evidence, we view the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Id.
III. Trial Testimony
Carrie testified that she had worked as a nurse at the hospital in Hope for approximately fifteen years before the accident. She said that she had worked all three shifts at the hospital. She testified that there was a median with a tree in the middle of it located between a parking lot and the front entrance of the hospital. She said that she had been crossing the median off and on for fifteen years. According to Carrie, she was aware that there were tree roots in the median sticking up two to three inches from the ground.
Carrie testified that she was at the hospital on February 18, 2009, to sit for a deposition. She said that she had parked near the median, walked across the median, and entered the hospital. In the front office, she briefly spoke with the secretary, and because she had time before the start of her deposition, she returned to her car to get some paperwork. She said that it was approximately 1:15 p.m. when she was walking back to her car. Carrie testified that she could see the tree roots on the day of the accident but recalled that it was "kinda shadowy" under the tree. Carrie testified, "I thought I was walking carefully, and next thing I knew I started stumbling. I had hit the root, and I couldn't regain my balance, and I just kept going head first kinda, and I hit the bumper of a Jeep." Carrie testified that she had been wearing nurse's shoes that day; she had not been in a hurry; and she did not have her phone with her. Carrie agreed on cross-examination that she thought she could avoid tripping on the tree roots if she was being careful and paying attention.
According to Carrie, there were no signs directing foot traffic between the parking lot and the hospital. She said that walking across the median was the shortest route in that it was a direct path to the hospital's front entrance. Carrie said that she also crossed the median to avoid walking through traffic on each side of the median. She agreed that she had earlier testified in a deposition that she could have walked around the tree roots.
Dr. Dale Goins, Carrie's coworker and her doctor, testified that he had worked at the hospital since 1985 under various owners. He said that he was familiar with the area in front of the hospital and that he had crossed the median himself and had seen others cross it. He confirmed that there were tree roots in the median. According to Dr. Goins, crossing the median was the fastest way to get to the other side, but it was not the only route. He said, "I could've just as easily walked around the tree and the landscaped island as I could've walked underneath it."
Kelly Holybee testified that she had worked at the hospital since 1978 or 1979. She said that in February 2009 she was the hospital's safety officer and that it was her job to protect the employees, staff, visitors, and physicians inside the building and on the grounds. She said that the tree roots in the median were obvious but that she thought a person could walk over the median safely if he or she was paying attention. Holybee testified that, although people crossed the median, it was not a pathway. She confirmed that there were no signs telling people not to walk across the median. She said that no one had reported any concerns to her about the safety of the area in the median. Holybee stated that if she had thought the area was unsafe she would have done something about it. She agreed on cross-examination that it would be harder to see the tree roots when they are shaded than when the sunlight is shining through the tree. She pointed out that in February there would not have been leaves on the tree.
IV. Discussion
To prevail on a claim of negligence, the plaintiff must prove that the defendant owed a duty to the plaintiff, that the defendant breached the duty, and that the breach was the proximate cause of the plaintiff's injuries. Duran v. Sw. Ark. Elec. Coop. Corp. , 2018 Ark. 33, 537 S.W.3d 722. Duty arises out of the recognition that the relation between individuals may impose upon one a legal obligation for the benefit of another. Id. Hope argues that it owed no duty to Carrie because her testimony establishes beyond dispute that she knew the tree root was lying in her path before she tripped over it.
The question of whether a duty is owed is always a question of law and never one of fact for the jury. Locke v. Cont'l Cas. Co. , 2013 Ark. App. 690, 2013 WL 6097990. Because the question of what duty is owed is one of law, we review it de novo. Shook v. Love's Travel Stops & Country Stores, Inc. , 2017 Ark. App. 666, 536 S.W.3d 635.
Carrie was at the hospital to sit for a deposition, so she was a business invitee. A business invitee is one who enters or remains on land for a purpose connected with the business dealings of the owner. Lively v. Libbey Mem'l Physical Med. Ctr., Inc. , 311 Ark. 41, 841 S.W.2d 609 (1992). A property owner has a duty to exercise ordinary care to maintain his or her premises in a reasonably safe condition for the benefit of his or her invitees. Delt v. Bowers , 97 Ark. App. 323, 249 S.W.3d 162 (2007). The property owner is liable if he or she has superior knowledge of an unreasonable risk of harm of which the invitee, in the exercise of ordinary care, does not or should not know. Id. In Arkansas, a landowner generally does not owe a duty to a business invitee if a danger is known or obvious. Young v. Paxton , 316 Ark. 655, 873 S.W.2d 546 (1994) ; Shook , supra . The duty to warn an invitee of a dangerous condition applies only to defects or conditions that are in the nature of hidden dangers, traps, snares, pitfalls and the like, in that they are known to the invitor but not known to the invitee and would not be observed by the latter in the exercise of ordinary care. Id. There is no duty to guard against merely possible, as opposed to probable, harm. Locke, supra.
Carrie had been an employee of the hospital for fifteen years and had walked across the median with its tree roots sticking up many times, including fifteen minutes before she fell and was injured. Carrie testified that she saw the tree roots on the day of her fall, even though there were shadows cast by the tree. Carrie's testimony showed that she was not distracted and was not in a hurry, and she said that she thought she could avoid tripping over the tree roots if she was being careful and paying attention. Her testimony shows that she appreciated the danger of the situation. A dangerous condition is "obvious" when "both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgment." Van DeVeer v. RTJ, Inc. , 81 Ark. App. 379, 386, 101 S.W.3d 881, 885 (2003). "Known" has been defined as "not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves." Id. at 386, 101 S.W.3d at 884. Because the danger was both known and obvious, according to Carrie's own testimony, we hold that the hospital did not owe a duty to warn her of the tree roots in her path. The appellate courts have reversed jury verdicts when no duty was owed to an injured plaintiff. See, e.g. , Bedell v. Williams , 2012 Ark. 75, 386 S.W.3d 493 (negligence); Ken's Disc. Bldg. Materials, Inc. v. Meeks , 95 Ark. App. 37, 233 S.W.3d 176 (2006) (premises liability).
Despite the obvious-danger rule, an owner may continue to owe a duty of care to a business invitee who is forced, as a practical matter, to encounter a known or obvious risk to perform his or her job. Jenkins v. Int'l Paper Co. , 318 Ark. 663, 887 S.W.2d 300 (1994) ; see also Carton v. Mo. Pac. R.R. Co. , 303 Ark. 568, 798 S.W.2d 674 (1990) ; Kuykendall v. Newgent , 255 Ark. 945, 504 S.W.2d 344 (1974). As noted, Carrie was not at the hospital to perform her job as a nurse, but to the extent this exception could apply, the evidence shows that Carrie was not forced to encounter the tree roots. Although Carrie said that she had to cross the median or get in "traffic," she had earlier testified in her deposition that she could have walked around the tree roots. Also, her witness, Dr. Goins, testified that, instead of walking across the median, he could have walked around the tree and avoided its roots.
Reversed and dismissed.
Klappenbach and Whiteaker, JJ., agree.
The trial court later dismissed the other defendants without prejudice.
Photographs introduced at trial show a circle drive between the median and the hospital's entrance. | [
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RAYMOND R. ABRAMSON, Judge
Appellant Rick Doss appeals the divorce decree entered by the Fulton County Circuit Court on September 6, 2017. We affirm.
Rick and appellee Jennifer Doss were married on September 29, 2009; Rick filed for divorce on May 6, 2013. Over the next few years, while their divorce was pending, the parties would reconcile at times and then file amended pleadings. The couple finally separated for good on September 26, 2015. Two hearings on the matter were held--on November 30, 2016, and on December 18, 2016, but the final order was not entered until September 6, 2017. This timely appeal followed.
On appeal, Rick argues that the circuit court failed to make requisite findings to support an unequal division of debts and assets and that the record does not support an uneven division. He contends that "at minimum, the court's division resulted in a distribution inequity of over $80,000." Rick contests that there was no equity in the circuit court's decision; that the court did not make the required express findings pursuant to statute; and that there was no evidentiary support for the court's findings. For the following reasons, we affirm the circuit court's rulings.
Our court reviews domestic-relations cases de novo on the record, but we will not reverse the circuit court's findings unless they are clearly erroneous. Hunter v. Haunert , 101 Ark. App. 93, 270 S.W.3d 339 (2007). A circuit court's 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. Id. In order to demonstrate that the circuit court's ruling was erroneous, the appellant must show that the lower court abused its discretion by making a decision that was arbitrary or groundless. Skokos v. Skokos , 344 Ark. 420, 40 S.W.3d 768 (2001). We give due deference to the circuit court's superior position to determine the credibility of witnesses and the weight to be given their testimony. Kelly v. Kelly , 2011 Ark. 259, 381 S.W.3d 817.
With respect to the division of property, we review the circuit court's findings of fact and affirm them unless they are clearly erroneous or against the preponderance of the evidence; the division of property itself is also reviewed, and the same standard applies. See Conlee v. Conlee , 370 Ark. 89, 257 S.W.3d 543 (2007). In accordance with Arkansas Code Annotated section 9-12-315(a)(1) (Repl. 2015), at the time of entry of a divorce decree, the circuit court shall equally distribute all marital property one-half to each party unless it is determined that such a distribution would be inequitable; if the property is not divided equally, then the circuit court must state the reasons and basis for not doing so, and the basis and reasons should be recited in the order entered in the matter. Brown v. Brown , 2016 Ark. App. 172, 2016 WL 1039586. Factors to be considered by the circuit court in the event that the marital property is not divided equally include the length of the marriage;
the age, health, and station in life of the parties; the occupation of the parties; the amount and sources of income available to each party; vocational skills; employability; the estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income; contribution of each party in acquisition, preservation, or appreciation of marital property, including homemaker services; and the federal income tax consequences of the court's division of property. Ark. Code Ann. § 9-12-315(a)(1)(A).
Additionally, we have held that a nonowning spouse is entitled to some benefit when marital funds have been expended to reduce the debt on the other spouse's nonmarital property. Wilson v. Wilson , 2016 Ark. App. 256, 492 S.W.3d 534. However, that reduction in debt on nonmarital property is not considered to be marital property to be divided equally; instead, the nonowning spouse is simply entitled to have the marital contribution considered in balancing the equities involved in the property division. Id.
In a divorce action, statutory law requires that all marital property be distributed at the time a divorce decree is entered. See Ark. Code Ann. § 9-12-315(a)(1)(A). But the main purpose of the property-division statute is to enable the circuit court to make a division of property that is fair and equitable under the circumstances. See Hoover v. Hoover , 70 Ark. App. 215, 16 S.W.3d 560 (2000). A circuit court has broad powers to distribute property to achieve an equitable distribution. See Hodges v. Hodges , 27 Ark. App. 250, 770 S.W.2d 164 (1989). Property division and alimony are complementary devices that the circuit court may utilize in combination to make the dissolution of marriage equitable. Moore v. Moore , 2016 Ark. 105, 486 S.W.3d 766.
Based on our review of the record, and specifically on our examination of the divorce decree, we hold that the circuit court adequately weighed the factors listed in section 9-12-315 in light of both the alimony claim and the inequitable-division-of-marital-property claim. The court began its examination of the assets and determined the characterization of them as either marital or nonmarital based on lengthy testimony by Rick regarding movement of funds in to and out of his individual accounts and the sale of assets during the pendency of the divorce. The court also analyzed the division of the assets by considering the needs of Jennifer and the ability of Rick to pay. The court stated that it could not assess Rick's ability to pay due to the "obfuscation of assets."
The circuit court awarded Jennifer her marital share of the 401k retirement account and acknowledged that it was basically impossible to trace the origin of those funds from the facts presented. The circuit court split Rick's tax refund equally between the parties and also divided the parties' marital foreign currency--Iraqi Dinars--equally, minus the amounts owed to separate family members. The circuit court awarded Rick his premarital property and its associated debt, acknowledging the pay down of $77,000 benefiting this property during the marriage. The circuit court also awarded Jennifer the Green Acres marital storage-unit property and charged her with its underlying debt.
When the circuit court divides property unequally, our property-division statute requires the court to 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 circuit court's order. See Ark. Code Ann. § 9-12-315(a)(1)(B). In the instant case, the circuit court did just that. The circuit court explained its reasoning for the unequal division, noting that the court had the ability to award alimony but that Rick's ability to pay was unclear. Therefore, rather than awarding alimony, the court found that Jennifer's need would be met by an unequal distribution of the marital assets and debts in order to balance the equities between the parties.
While the circuit court must consider the factors set forth in the statute and state its reasons for dividing property unequally, it is not required to list each factor in its order or to weigh all the factors equally. See Kelly , supra ; Bamburg v. Bamburg , 2011 Ark. App. 546, 386 S.W.3d 31. Further, our supreme court has determined that "the specific enumeration of the factors within the statute does not preclude a circuit court from considering other relevant factors, where exclusion of other factors would lead to absurd results or deny the intent of the legislature to allow for the equitable division of property." Hernandez v. Hernandez , 371 Ark. 323, 328, 265 S.W.3d 746, 750 (2007).
The allocation of marital debt must be considered in the context of the distribution of all of the parties' property. Bailey v. Bailey , 97 Ark. App. 96, 244 S.W.3d 712 (2006). However, our court has held that Arkansas Code Annotated section 9-12-315 and its presumption of equal division does not apply to the division of marital debts. Williams v. Williams , 82 Ark. App. 294, 108 S.W.3d 629 (2003) ; Ellis v. Ellis , 75 Ark. App. 173, 57 S.W.3d 220 (2001). A determination that debts should be allocated between the parties on the basis of the relative ability to pay is not a decision that is considered clearly erroneous. Bailey , supra ; Ellis , supra.
We have long held that any exception to the rule of equal distribution will always depend on the specific facts as reflected by the circuit court's findings and conclusions. Gentry v. Gentry , 282 Ark. 413, 668 S.W.2d 947 (1984). Again, the statute requires the lower court simply to explain its reasons for not dividing the marital property equally, not to recite each of the statutory factors in the order. Kelly, supra. Based on our standard of review and the record before us, we hold that the circuit court considered and analyzed all the relevant and necessary factors to determine the true financial picture of the parties' marriage and their lives postdivorce. We cannot say that the circuit court's decision was arbitrary or groundless. Accordingly, we affirm.
Affirmed.
Gladwin and Murphy, JJ., agree. | [
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BRANDON J. HARRISON, Judge
Alim Shakir Hakim challenges the sufficiency of the State's evidence against him to support one conviction of the delivery of cocaine. Ark. Code Ann. § 5-64-422(b)(1) (Repl. 2016). He does not challenge the enhancement of his sentence pursuant to Ark. Code Ann. § 5-64-411 (enhancement for delivery within 1000 feet of a public-housing development) and Ark. Code Ann. § 5-4-501(b)(1) (Supp. 2017) (habitual offender).
Here is a recap of the State's case. A video recording taken with a small camera and an audio transmitter hidden near the person of confidential informant Linda Crow showed Crow interacting with Fort Smith Police Department narcotics investigator Greg Napier. The video shows Crow driving and picking up Hakim, the two interacting, and then driving to a location later identified as Nelson Hall Homes (a government-funded housing addition). Hakim asks Crow to step inside; Crow declines and hands Hakim money. The angle of the video does not show Hakim delivering to Crow a small plastic bag of drugs, but the audio component records some haggling over the price and the amount of cocaine.
Crow testified during the trial that Hakim gave her between $40 and $60 worth of crack cocaine. Officer Napier testified that he searched Crow and her vehicle for contraband before he gave her $100 of buy money. He also said that he followed Crow and saw the transaction. According to Officer Napier, Hakim entered the passenger side of Crow's car, then Crow drove the two into the parking lot. Hakim exited the car, went inside Nelson Hall for a short time, came back out, stood by the driver's side of the car, and spoke with Crow for a moment. He went back inside the apartment complex and then returned. Officer Napier testified that Hakim sold Crow a small amount of crack cocaine. The officer conducted a field sample on the substance and sent it to the state crime lab for testing. Lize Wilcox, an employee of the Arkansas State Crime Lab, testified that the chemical composition of the cocaine was established using a gas chromatograph and a mass spectroscopy ; the amount was .02349 grams.
Arkansas Code Annotated section 5-64-422(a) makes it unlawful for a person to deliver cocaine. "Delivery" is defined as "the actual, constructive, or attempted transfer from one person to another of a controlled substance ... in exchange for money[.]" Ark. Code Ann. § 5-64-101(6). We review the jury's verdict for substantial evidence to support the conviction. Cave v. State , 2017 Ark. App. 212, at 3-4, 518 S.W.3d 134, 137 (standard of review).
Hakim argues that "there [was] nothing presented to the fact finder to substantiate the claim that the appellant was in fact a seller of cocaine" and that confidential informant Crow had a reason to lie because she was trying to avoid going to prison for check fraud. Crow and Officer Napier both testified that Hakim sold cocaine to Crow; and the video and audio recording supports their testimony. Further, the crime lab established that the substance exchanged between Hakim and Crow was cocaine. The credibility of the witnesses and in whose favor to make judgment calls on the evidence was for the jury to decide. Given this record, substantial evidence supported the case against Hakim. We therefore affirm the conviction.
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Virden and Klappenbach, JJ., agree. | [
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RITA W. GRUBER, Chief Judge
Charity Allen-Grace appeals from the Washington County Circuit Court's order adjudicating her three children-A.S. (01/22/04), A.G.1 (10/09/09), and A.G.2 (09/18/12)-dependent-neglected. On appeal, appellant argues that the evidence was insufficient to support the court's finding that the children were dependent-neglected. We affirm.
On June 17, 2017, the Arkansas Department of Human Services (DHS) exercised a 72-hour hold on appellant's three children. On June 20, 2017, DHS filed a petition for emergency custody and dependency-neglect, and an order for emergency custody was entered the same day. A probable-cause hearing was held on June 22, 2017. The trial court found that probable cause existed to issue the ex parte order and continued to exist, making it necessary for the children to remain in the custody of DHS. On July 24, 2017, the trial court entered an order placing A.G.1 and A.G.2 in the legal custody of their paternal grandparents, Joann and Albert Grace. An adjudication hearing was held on July 26, 2017.
This case originated when the police were called to investigate a domestic disturbance on June 16, 2017, involving appellant and A.S. Springdale police officer Jacob Enos testified that A.S.'s physical appearance concerned him because she had a large swelling on her nose and under her eye. He spoke with A.S. about what happened and felt her story was credible. Officer Enos testified that during the investigation, appellant was arrested on the charge of third-degree domestic battery involving A.S. Later, he saw appellant at the jail, and although he did not speak to her, he testified that she appeared to be very intoxicated based on his observation.
Stephanie Graham, the DHS investigator, began an investigation after receiving a call from the hotline that a priority-one referral was received for threat of harm, which included striking a child with a closed fist; striking a child age seven or older in the face or head; and cuts, bruises, or welts. The alleged victim was A.S. Graham interviewed appellant and A.S. on June 17, 2017, the day after the alleged disturbance. She noted that she did not see A.G.1 and A.G.2 during her investigation. She testified that when she interviewed A.S. at a neighbor's home, A.S. had raised, red welts on the bridge of her nose and near her left eye. A.S. stated that appellant had punched her in the face and hit her with a candle. According to the affidavit in support of the petition for emergency custody,
A.S. reported that appellant was intoxicated. Graham spoke to appellant at her home, and appellant denied she had done anything and had no explanation for A.S.'s injuries.
Photographs of A.S.'s injuries, as well pictures of the home, were introduced into evidence. Graham testified that there were boxes and things scattered throughout the house. She indicated that the photo of appellant's bedroom showed a beer bottle on the nightstand, a mostly empty six-pack container and two open bottles, and cigarettes. She testified that there was broken glass, broken items, and garbage on the floor of A.S.'s bedroom. She stated that the house was very messy and unsanitary, elaborating that there was dried dog urine and feces inside the home. Graham noted that there was not much food in the home. As a result of the investigation, DHS found true against appellant for the offense of cuts, bruises, and welts; striking a child age seven or older on the face or head; and striking a child with a closed fist, with A.S. as the victim. When questioned about prior DHS involvement with the family, Graham stated the history went back to 2008. There was a true finding against Matthew Steed, A.S.'s legal father, for sexual abuse naming A.S. as the victim, as well as two investigations involving appellant, one for neglect and one for abuse, both of which were unsubstantiated.
The DHS caseworker, Haley Mehan, testified that A.G.1 and A.G.2 were in the legal custody of Joanne and Albert Grace, their paternal grandparents. She did not have any problem with their father living in the home, although he had pending methamphetamine charges, based on her observations when visiting the home. She indicated A.G.1 and A.G.2 were thriving and happy to be there. Mehan recommended that appellant's visitation continue at one hour per week. She explained that A.S. remained in the custody of DHS and was placed provisionally with her paternal grandparents, Leslie and Peter Halpern. She also indicated that A.S. was doing well and that appellant had no contact with A.S. due to the criminal charge. In addition, Mehan testified that she had spoken with Steed, who lives in Colorado, and he did not ask to be present by phone for the adjudication. She recommended that he have no face-to-face contact with A.S.
Alan Grace testified that while he was married to appellant, appellant was violent toward A.S. and that he had intervened on several occasions. He stated appellant would strike her, call her names, and verbally abuse her. He testified that appellant would get intoxicated on a regular basis and expressed concern about her prescribed anxiety medications, which included Xanax. He stated that he had concerns about A.G.1 and A.G.2 being in her home. He acknowledged having two pending drug charges for possession of methamphetamine, one in Missouri and one in Benton County, which prompted a revocation of probation for a possession-of-methamphetamine offense.
Leslie Halpern, A.S.'s paternal grandmother, testified that A.S. was doing well in her home. Mrs. Halpern also stated that A.S. was in counseling.
Appellant testified that she had lived in Springdale her whole life except for one year when she lived in Siloam Springs. She stated that she was a teacher and had a master's degree in special education. On June 16, 2017, appellant was still moving back to
Springdale from Siloam Springs. She testified that since her divorce from Alan Grace, which she believed was in 2014, she had problems getting along with A.S. She stated that A.S. began self-harming (cutting), threatening suicide, threatening to run away, and stealing. She testified that A.S. also became violent with her and her sisters; she would throw things and break things. Appellant explained that when they moved to Siloam Springs, A.S. overdosed on Xanax and was evaluated at Tulsa Pediatric Hospital, where she stayed for three or four days.
Appellant explained that A.S.'s behavior worsened when they moved back to Springdale from Siloam Springs. The night of the altercation leading to her arrest, appellant noticed two fresh cuts on A.S.'s arms, prompting her to call Vantage Point that evening. She did a mobile assessment and Vantage Point scheduled a 10:00 appointment the next day to see A.S. because A.S. had been self-harming again, taking Xanax, and smoking. Appellant described the cutting as extreme cuts, resulting in scarring up and down both arms. Appellant stated that the appointment led to the altercation. She testified that A.S. began yelling and cussing at her, kicking things, packing her room, and threatening to run away. She elaborated that A.S. threatened to hit herself, call the police, have her arrested, and ruin her life and career. Appellant denied striking A.S. but stated that A.S. hit her several times trying to get appellant's phone.
She explained that the photographs of her home showed boxes and trash because they were cleaning up from the previous renters. She also stated that when she left her home upon arrest on June 16, it did not look like it did in the pictures taken by the caseworker on June 17. When she returned home from jail on June 17, she discovered her house was not locked, and her dogs had been left inside and they were not in their cages. The boxes and things in the pictures were not the way she had left them. She indicated that things had been gone through and thrown about. Her car keys, wallet, credit cards, bank cards, check books, and some prescription medications were missing. At the hearing, appellant introduced current photos of her home, showing cleaner conditions.
Appellant also testified that she found a suicide note in her daughter's room after the DHS investigator left. The note was written to A.S.'s boyfriend. She explained that A.S. was very upset about moving to Springdale because her boyfriend lived in Siloam Springs. She believed A.S. wrote the note because it was in A.S.'s handwriting and she found it in A.S.'s room. Appellant acknowledged that she has prescriptions for a muscle relaxer, Xanax, and Ambien, but stated that she takes the muscle relaxer and Ambien only as needed. In 2017, appellant had two arrests-one for misdemeanor assault in March 2017 with A.S. being the alleged victim and the one in June 2017 that led to the adjudication.
In addition, there was a 2017 citation for misdemeanor assault against Alan Grace.
Appellant testified that she did not obtain counseling for A.S. because it was not recommended, explaining that she did several mobile assessments that "came out clear." Appellant testified that A.S. had been homeschooled for a period when they were in Siloam Springs. She explained that A.S. returned to school after she overdosed but had missed a lot of school. A.S. began homeschooling because her ex-fiancé's son, who had passed away, attended the same school as A.S. Appellant testified that A.S. did not want to return to school because he went to the same school. She talked to A.S. about counseling but never made an appointment, stating that A.S. refused to go. Appellant testified that since the case was opened, she had completed different parenting classes, alcohol-and-substance-abuse classes, as well as an anger-management class. She added that she did not think she had an alcohol problem and had not consumed alcohol since the night of her arrest.
A.S. testified at the hearing that things were going great with her grandparents. She stated that she did not write the suicide note her mom claimed she had written. She testified that she was at the pediatric hospital in Tulsa the year before, and she denied overdosing or taking any medication to cause her to be hospitalized as appellant claimed. A.S. did not know why she went to the hospital, only recalling that her mom hit her; she went to her room and took a nap, and she was in the hospital for four days. She testified that she did not go to counseling before or after she was hospitalized and that her mom did not schedule counseling appointments that she refused to attend.
In its written order entered on July 26, 2017, the court found A.S., A.G.1, and A.G.2 to be dependent-neglected. The court found by clear and convincing evidence that the children were dependent-neglected upon finding they were at substantial risk of harm as a result of neglect, parental unfitness, and abuse as to A.S. Specifically, the court found that appellant physically abused A.S., that appellant's home was unsanitary, and that appellant was not meeting A.S.'s mental-health needs.
Adjudication hearings are held to determine whether the allegations in a petition are substantiated by the proof. See Ark. Code Ann. § 9-27-327(a)(1)(A) (Repl. 2015). Dependency-neglect allegations must be proved by a preponderance of the evidence. Ark. Code Ann. § 9-27-325(h)(2)(B). We will not reverse the trial court's findings unless they are clearly erroneous. Maynard v. Ark. Dep't of Human Servs. , 2011 Ark. App. 82, at 6, 389 S.W.3d 627, 630. 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. Ark. Dep't of Human Servs. v. Walker , 2016 Ark. App. 203, at 2, 489 S.W.3d 214, 216. In reviewing a dependency-neglect adjudication, we defer to the trial court's evaluation of the credibility of the witnesses. Id.
Arkansas Code Annotated section 9-27-303(18)(A) (Repl. 2015) provides:
(18)(A) "Dependent-neglected juvenile" means any juvenile who is at substantial risk of serious harm as a result of the following acts or omissions to the juvenile, a sibling, or another juvenile:
(i) Abandonment; (ii) Abuse; (iii) Sexual abuse; (iv) Sexual exploitation; (v) Neglect; (vi) Parental unfitness; or (vii) Being present in a dwelling or structure during the manufacturing of methamphetamine with the knowledge of his or her parent, guardian, or custodian.
Abuse, as defined in section 9-27-303(3)(A), includes when a parent is repeatedly cruel to a juvenile, causes non-accidental physical injury, and strikes a child on the face without justification and causes injury. Section 9-27-303(36) provides in pertinent part:
(36)(A) "Neglect" means those acts or omissions of a parent, guardian, custodian, foster parent, or any person who is entrusted with the juvenile's care by a parent, custodian, guardian, or foster parent, including, but not limited to, an agent or employee of a public or private residential home, child care facility, public or private school, or any person legally responsible under state law for the juvenile's welfare, that constitute:
(iv) Failure or irremediable inability to provide for the essential and necessary physical, mental, or emotional needs of the juvenile, including failure to provide a shelter that does not pose a risk to the health or safety of the juvenile;
Ark. Code Ann. § 9-27-303(36)(A)(iv).
On appeal, appellant challenges the sufficiency of the evidence. She addresses her argument with respect to A.G.1 and A.G.2 separately from her argument as to A.S. We will address appellant's argument as to A.S. first. She contends that there was insufficient evidence to support the court's finding of dependency-neglect based on abuse, neglect, and parental unfitness. We disagree.
The testimony at the adjudication hearing established that the police were called to a domestic disturbance between appellant and A.S. on June 16, 2017. Officer Enos spoke with A.S. about what happened and observed swelling on her nose and under her eye. Officer Enos testified that appellant appeared to be intoxicated. Graham, the DHS investigator who interviewed appellant and A.S., observed that A.S. had raised red welts on the bridge of her nose and near her left eye. She testified that A.S. stated that appellant had punched her in the face and hit her with a candle. Graham spoke to appellant, who denied she had done anything and had no explanation for A.S.'s injuries. Graham testified that the home was messy and unsanitary, noting broken glass, garbage, dog urine, and dog feces inside the home.
Alan Grace testified that while he was married to appellant, appellant was violent toward A.S. and would strike her, call her names, and verbally abuse her. He also testified that appellant would regularly get intoxicated.
Additionally, appellant testified that she had been arrested for assaulting A.S. approximately three months before DHS took emergency custody of her children and had one citation in 2017 for assault of Alan Grace. Appellant also admitted having prescriptions for Xanax, Ambien, and a muscle relaxer. Appellant testified that A.S. had been acting out for three years and was self-harming, threatening suicide, threatening to run away, stealing, and becoming violent by breaking and throwing things. Appellant testified that A.S. overdosed on Xanax, which resulted in a three-day stay at Tulsa Pediatric Hospital. Despite A.S.'s ongoing behavior, appellant did not obtain counseling for A.S., explaining that A.S. refused to go or that it was not recommended after mobile assessments "came out clear."
While appellant denied that she had struck A.S. in the incident that led DHS to take custody of A.S., the trial court found appellant was not credible and found A.S. to be credible. In addition, she attributes the condition of her home at the time of the incident with A.S. to the previous renters and alleges that someone entered her home the night she was arrested and her dogs were left inside. Appellant claims that there was no evidence from a mental-health professional that A.S. needed therapy and points to the fact that the only testimony on this issue comes from her and the trial court found her not to be credible.
We defer to the trial court's determinations of witness credibility. Ark. Dep't of Human Servs. v. Walker , 2016 Ark. App. 203, at 2, 489 S.W.3d 214, 216. This court is not to act as a "super factfinder," substituting its own judgment or second-guessing the credibility determinations of the court; we reverse only in those cases where a definite mistake has occurred. Harris v. Ark. Dep't of Human Servs. , 2015 Ark. App. 508, at 7, 470 S.W.3d 316, 320. Based on these facts, we cannot say that a mistake has been made.
Appellant also argues that there is insufficient evidence to support the finding that A.G.1 and A.G.2 were dependent-neglected, specifically contending there was no evidence that A.G.1 and A.G.2 were dependent-neglected. Appellant suggests that while the evidence and the adjudication order detailed a "tumultuous relationship" between her and A.S., the issues of their relationship do not mean A.G.1 and A.G.2 were at a substantial risk of harm. She points to her own testimony that she never had issues with A.G.1 and A.G.2 as she did with A.S.
Our case law and statute, as quoted above, support a trial court's finding of dependency-neglect for any sibling of a child who has suffered neglect or abuse. Eason v. Ark. Dep't of Human Servs. , 2012 Ark. App. 507, at 9, 423 S.W.3d 138, 143. The abuse or neglect of one sibling can establish that another sibling is at a substantial risk of serious harm, even when there is no reason to think that the other siblings have also been actually abused or neglected. Id. (citing
Brewer v. Ark. Dep't of Human Servs. , 71 Ark. App. 364, 43 S.W.3d 196 (2001) ). It is the risk of harm that is created by the sibling's abuse or neglect that makes a finding of dependency-neglect regarding the other sibling appropriate. Id. In Brewer , we explained:
Parental unfitness is not necessarily predicated upon the parent's causing some direct injury to the child in question. Such a construction of the law would fly in the face of the General Assembly's expressed purpose of protecting dependent-neglected children and making those children's health and safety the juvenile code's paramount concern. To require Logan to suffer the same fate as his older sister before obtaining the protection of the state would be tragic and cruel.
71 Ark. App. at 368, 43 S.W.3d at 199.
In addition to the true finding of abuse of A.S., there was also evidence of neglect and parental unfitness, which was discussed previously. When considering all the evidence in this case, we cannot say that the trial court's finding A.G.1 and A.G.2 to be dependent-neglected is clearly against the preponderance of the evidence. Also, we are not left with a firm conviction that a mistake has been committed. Therefore, we affirm the trial court's adjudication order.
Affirmed.
Harrison and Glover, JJ., agree.
A.G.1 and A.G.2 were with their legal father, Alan Grace, for summer visitation.
Matthew Steed is not a party to this appeal.
Alan Grace is not a party to this appeal.
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Butler said that when they arrived at the cemetery, he and Scroggins got out of the car, started walking to the cemetery, and hopped the fence. At that time, appellant followed Butler's directions to "[j]ust drive down the road." Butler explained that after Scroggins had begun asking him questions, he turned around, drew the gun, asked him about the stolen drugs, and shot Scroggins two times after he had received no answer. The first shot misfired, but then Butler shot Scroggins in the head. He took a pill bottle containing marijuana and pills out of Scroggins's pocket.
Butler returned to the road where appellant picked him up approximately ten minutes after appellant had left him there, and Butler testified that appellant asked him what had happened. Butler stated that he told appellant that he thought he had killed Scroggins. Butler explained that appellant "started freaking out," which made him panic, so he told her that Scroggins was not dead. On the way home, Butler showed appellant the pill bottle he had taken from Scroggins. Without further discussion, the pair went to their home, and Butler put the gun away.
Captain Bob King of the Boone County Sheriff's Department testified about the investigation. He explained that they identified Butler as the person Scroggins last had contact with via Facebook messenger records. That led to officers interviewing Butler and a few months later interviewing appellant, whose stories were similar but contained some conflicting information and timing discrepancies. Appellant acknowledged that she could not fill in more details because she had been "pretty strung out on meth," was confused about when and where she had met with Scroggins and Butler, and did not know what had happened to Scroggins that night. She tried to establish that she was at her grandmother's residence on the evening in question.
Appellant subsequently was interviewed by Special Agent Buster Rink of the Arkansas State Police, to whom Butler had previously confessed. According to Rink's testimony and the transcript, appellant's memory of the events was more clear during the subsequent interview, but she continued to claim that her only involvement was to drive the car. She claimed that Butler did not tell her that he was going to beat up Scroggins or that he had a gun. She acknowledged that she did not go to the police after Butler told her that he was afraid he had killed Scroggins because she was scared. Appellant also acknowledged that Scroggins had left his cell phone in her car that evening because he thought he would be coming back to it.
Special Agent David Small of the Arkansas State Police also testified regarding the discovery of Scroggins's remains and a spent .22-caliber casing, which were recovered after an interview with Butler.
At the close of the State's case-in-chief, appellant moved for a directed verdict, arguing that the State had failed to present the circuit court with any type of corroboration, which would be independent of Butler's testimony, to sustain the aggravated-robbery charge against appellant. Counsel argued that the testimony of the accomplice, Butler, was uncorroborated and that a prima facie case was not made by the State. Counsel said the State had not given any distinct and independent evidence that would prove anything other than that appellant had been merely present. The circuit court denied appellant's motion for a directed verdict, finding that there was substantial corroboration of appellant's participation by her own statement to police independent of Butler's testimony.
Appellant did not present any evidence in her defense. At the close of appellant's case, counsel renewed the motion for a directed verdict, arguing that the State had failed to present sufficient proof of corroboration independent of Butler's testimony. The circuit court again denied appellant's motion.
Appellant was found guilty by the jury of aggravated robbery and sentenced to thirteen years in the Arkansas Department of Correction pursuant to a judgment and commitment order entered on September 7, 2017. Appellant filed a notice of appeal on September 22, 2017.
II. Standard of Review
A motion for directed verdict is a challenge to the sufficiency of the evidence. Hill v. State , 2018 Ark. 194, 546 S.W.3d 483. 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. Id. Substantial evidence is evidence that is forceful enough to compel a conclusion beyond suspicion or conjecture. Id. 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. Wilson v. State , 2018 Ark. App. 371, 554 S.W.3d 279.
Weighing the evidence, reconciling conflicts in the testimony, and assessing credibility are all matters exclusively for the trier of fact. Lovelace v. State , 2017 Ark. App. 146, at 6, 516 S.W.3d 300, 304. A jury may accept or reject any part of a witness's testimony, and its conclusion regarding credibility is binding on the appellate court. Id. at 6-7, 516 S.W.3d at 304.
III. Sufficiency of Evidence Supporting Appellant's Conviction of Aggravated Robbery
Appellant argues that the circuit court erred in denying her motions for a directed verdict on the aggravated robbery charge under Arkansas Code Annotated section 5-12-103(a) (Repl. 2013) because her criminal liability was based entirely on the accomplice testimony of Butler and her written and oral statements made to law enforcement officers. Appellant contends that evidence does not constitute substantial evidence to support her conviction.
With respect to corroborating testimony, this court has held that
when accomplice testimony is considered in reaching a verdict, Arkansas law provides that a person cannot be convicted based upon the testimony of an accomplice "unless corroborated by other evidence tending to connect the defendant ... with the commission of the offense." Ark. Code Ann. § 16-89-111(e)(1)(A) (Repl. 2005). Corroborating evidence is not sufficient if it merely shows that the offense was committed and the circumstances thereof. The corroboration must be sufficient, standing alone, to establish the commission of the offense and to connect the defendant with it. Corroborating evidence need not, however, be so substantial in and of itself to sustain a conviction. The test is whether, if the testimony of the accomplice were completely eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Martin v. State , 346 Ark. 198, 57 S.W.3d 136 (2001).
Riley v. State , 2009 Ark. App. 613, at 4, 343 S.W.3d 327, 331.
A person is criminally liable for the conduct of another person when he or she is the accomplice of another person in the commission of an offense. Ark. Code Ann. § 5-2-403 (Repl. 2013). An accomplice is defined as follows:
(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, the person:
(1) Solicits, advises, encourages, or coerces the other person to commit it; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.
(b) When causing a particular result is an element of an offense, a person is an accomplice in the commission of that offense if, acting with respect to that result with the kind of culpability sufficient for the commission of the offense he:
(1) Solicits, advises, encourages, or coerces the other person to engage in the conduct causing the result; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or engaging in the conduct causing the result; or
(3) Having a legal duty to prevent the conduct causing the result, fails to make a proper effort to prevent the conduct causing the particular result.
Ark. Code Ann. § 5-2-403. Appellant submits that the State failed to make a prima facie case against appellant as to aggravated robbery.
Appellant argues that the only testimony that directly implicates her in the offense as an accomplice is the previously described testimony of accomplice Butler. Appellant claims that Butler's testimony about telling her that he was going to beat up Scroggins and get his stuff back is so unbelievable that reasonable minds could not differ thereon; particularly considering Butler's answers on cross-examination and his agreement to testify against appellant as part of his plea agreement with the State. Barnes v. State , 258 Ark. 565, 528 S.W.2d 370 (1975).
Moreover, appellant maintains that if Butler's testimony as an accomplice was removed, the remaining evidence merely places appellant with Butler and Scroggins on June 27, 2016. Appellant submits that she had no duty to take any action before or after Butler murdered Scroggins. She claims that the evidence presented at trial was that she did not know of Butler's plan to rob or kill Scroggins before the crimes were committed.
Appellant maintains that even in the light most favorable to the State, the evidence is sufficient only to place her at the cemetery where Scroggins had been killed before and after Butler murdered him. The jury was instructed that "mere presence" is not enough:
Mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make one an accomplice. Therefore, if you find that [appellant] was only present while a crime was being committed and did not have a legal duty to act, then she is not an accomplice.
AMI Crim. 2d 404; see also West v. State , 2017 Ark. App. 416, 530 S.W.3d 355.
Appellant argues that she meets none of the requirements of an accomplice under Ark. Code Ann. § 5-2-403, claiming that no evidence was presented that she aided, agreed to aid, or attempted to aid Butler in robbing or killing Scroggins. She maintains that she was simply present before and after Butler killed Scroggins and that she drove the vehicle to meet up with a guy who owed Butler money.
Mere presence, acquiescence, or silence, in the absence of a duty to act, is not enough to create accomplice liability; the knowledge that a crime is being committed or is about to be committed does not create an accomplice. West , supra. Neither is the mere failure to inform the officers of the law when one has learned of the commission of a crime. Hutcheson v. State , 92 Ark. App. 307, 213 S.W.3d 25 (2005). Absent a legal duty, presence, acquiescence, silence, knowledge, or failure to inform an officer of the law is not sufficient to make one an accomplice. Id. Appellant maintains that the alleged corroborative evidence is not substantial nor can her involvement as an accomplice in this matter stand without resorting to conjecture and speculation. Turner v. State , 103 Ark. App. 248, 288 S.W.3d 669 (2008).
Alternatively, appellant alleges that if this court holds that she is an accomplice, she can be held liable for only the degree of the offense that is consistent with her own mental culpability or her own accountability for an aggravating fact or circumstance. See AMI Crim. 2d 405; Ark. Code Ann. § 5-2-406. Appellant submits that there was no evidence presented at trial that indicated she knew Butler had a gun or was planning to use a gun to take anything from Scroggins. Considering Butler's testimony in which he testified that he told appellant before picking up Scroggins that he was going to beat Scroggins up and get his stuff back, then the only elements of an offense that are met and the only culpable mental state proved is that of a simple robbery.
Robbery is defined in Arkansas Code Annotated section 5-12-102(a) (Repl. 2013):
A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately after committing a felony or misdemeanor theft, the person employs or threatens to immediately employ physical force upon another person.
Appellant claims that if the jury accepted Butler's testimony at trial-without resorting to speculation or conjecture-the only facts presented were that appellant knew a robbery was going to take place and that Butler was going to beat up Scroggins and get his stuff back. Appellant maintains that because there was no robbery instruction offered or given to the jury, this court must conclude that there was insufficient evidence presented to convict appellant of the aggravated-robbery charged in the felony information.
We disagree and hold that the circuit court did not err by denying appellant's motion for directed verdict. A defendant is an accomplice so long as he or she renders the requisite aid or encouragement to a principal irrespective of whether the defendant directly commits the crime. Atkinson v. State , 347 Ark. 336, 347, 64 S.W.3d 259, 266 (2002). The accomplice-corroboration statute, enacted in 1883, remains virtually unchanged since its enactment:
(A) A conviction ... may not be had in any case of felony upon the testimony of an accomplice ... unless corroborated by other evidence tending to connect the defendant ... with the commission of the offense.
(B) The corroboration ... is not sufficient if it merely shows that the offense was committed and the circumstances of the offense.
Ark. Code Ann. § 16-89-111(e)(1) (Supp. 2017). In King v. State , 254 Ark. 509, 494 S.W.2d 476 (1973), the Arkansas Supreme Court held as follows regarding the accomplice-corroboration statute:
By its own language, the statute only requires that there be corroboration by evidence tending to connect the defendant with the commission of the offense and that this evidence go beyond a showing that the crime was committed and the circumstances thereof. We have, therefore, consistently held that the corroborating evidence need not be sufficient in and of itself to sustain a conviction, but it need only, independently of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the crime.
Id. at 510, 494 S.W.2d at 477-78 (citations omitted).
Our supreme court has further held that it is not necessary that an accomplice's testimony be corroborated on every fact or detail. MacKool v. State , 365 Ark. 416, 231 S.W.3d 676 (2006). A defendant cannot disclaim accomplice liability simply because he or she did not personally take part in every act making up the commission of a criminal offense as a whole. Id. at 435, 231 S.W.3d at 692. Governing precedent does not require that corroborating evidence, by itself, be sufficient to sustain a conviction. Taylor v. State , 2011 Ark. 10, at 11-12, 370 S.W.3d 503, 509.
It is well settled that the acts, conduct, and declarations of a defendant before or after the crime may be considered as corroborating evidence. MacKool , 365 Ark. 416, at 433, 231 S.W.3d at 690-91. Likewise, a defendant's possession of missing property belonging to a crime victim may be considered corroborating evidence of guilt. See Lipsmeyer v. State , 16 Ark. App. 14, 695 S.W.2d 848 (1985). Furthermore, association with a person involved in the crime in a manner suggestive of joint participation is a relevant factor in determining the connection of an accomplice with the crime. Passley v. State , 323 Ark. 301, 915 S.W.2d 248 (1996).
We hold that the corroborating evidence presented at trial established more than appellant's being "simply present" during the commission of the crime. Substantial corroborating evidence connects appellant to the crime, including corroboration through a series of evolving recorded statements she gave to the police.
Butler explained that before they left her vehicle on the day in question, he told appellant they were going to pick up Scroggins and that Butler intended to beat him up and take anything that Scroggins had on him. Despite this knowledge of Butler's purpose, appellant still agreed to drive him. Butler's testimony that he told appellant of his intention to beat Scroggins up and take everything he had before appellant drove Butler and Scroggins to the cemetery was consistent throughout the trial and also in his statements to police. His statements were made before he entered a plea bargain to testify against appellant.
Substantial corroborating evidence connecting appellant to the crime includes two recorded interviews appellant gave to the police, along with her written statement, all of which were admitted at trial. Captain King testified that in her first interview with the police on October 3, 2016, appellant denied having any contact with Scroggins on the date of his disappearance or any knowledge of Scroggins's whereabouts or what had happened to him.
Appellant's version of events was significantly different in the second recorded interview she gave the following day on October 4, 2016. Although she initially stood by her previous account of having only one recollection of meeting Scroggins-when she picked him up near Walmart and took him to the Scenic Seven Motel to buy drugs-soon after being confronted with a question about what had happened at the cemetery, appellant admitted driving the car, picking Scroggins up, letting the two men out at the cemetery, and then driving up and down the road a few times until she picked up Butler, who was alone.
In that second interview, appellant's version of events was consistent with Butler's testimony that while appellant was driving them to the cemetery, Butler told Scroggins he was going to help Butler collect money from someone else who lived near there. Appellant admitted to officers that she believed Butler was "making up more of a story" about needing Scroggins's help to collect money from someone who lived near the cemetery.
Appellant's story was consistent with Butler's testimony that when she stopped to let the two men out at the cemetery, Butler told her to drive on down the road, and she did. Likewise, appellant's story about what Butler told her had happened to Scroggins also was consistent with Butler's accomplice testimony. After the incident occurred, appellant admitted to the police interviewer that she had seen Scroggins's cell phone, which had been left in her car. Appellant told police of the two places in her home where a bag of phones might be located and that she also might have disposed of the Scroggins's phone in Butler's belongings that she had given to his mother after his arrest.
Viewed in the light most favorable to the State, a reasonable juror could have found from the corroborating evidence that appellant was guilty of being an accomplice to the aggravated robbery of Scroggins. Independent of Butler's accomplice testimony, evidence obtained by the police and presented by the State at trial established that Scroggins had been fatally shot near the cemetery where both his body and the bullets were found. The bullets found at the scene were the same caliber as one of the guns Butler had recently stolen from appellant's family. In addition to Butler's confession, Facebook postings indicated that Butler was the last person to communicate with Scroggins.
Appellant's recorded statement revealed that on June 27, 2016, she rendered the requisite aid to Butler to commit the crime by transporting Butler and his intended victim to the scene of the crime where Butler robbed and fatally shot Scroggins. Appellant acknowledged transporting Butler away from the scene, knowing that he had severely injured or killed Scroggins, and she admitted possibly retaining or disposing of the Scroggins's cell phone after the incident. We hold that appellant's possession of the Scroggins's property, her evasive or conflicting statements to the police, and her other acts and conduct could be viewed by the jury as corroborating evidence.
Regarding appellant's additional argument that there was insufficient evidence to convict her for aggravated robbery because she was unware that Butler had a gun or was going to use a gun to rob Scroggins-the State notes that this specific argument was not presented to the circuit court in a directed-verdict motion and should not be considered on appeal. A directed-verdict motion requires the movant to apprise the circuit court of the specific basis on which the motion is made. Rounsaville v. State , 372 Ark. 252, 256, 273 S.W.3d 486, 490 (2008). Arguments not raised at trial will not be addressed for the first time on appeal, and a party cannot change the grounds for an objection on appeal but is bound by the scope and nature of the objections and arguments presented at trial. Id.
Arkansas law makes no distinction between the criminal liability of a principal and an accomplice. Starling v. State , 2015 Ark. App. 429, at 4, 468 S.W.3d 294, 296 ; see Ark. Code Ann. § 5-2-402(2). Appellant's argument fails to acknowledge that death was inflicted on Scroggins during the commission of a robbery. See Ark. Code Ann. § 5-12-103(a)(3). Because the evidence established that appellant participated or aided in the commission of an aggravated robbery in which death was inflicted on the victim-regardless of her knowledge of whether a gun might be used in the commission of the offense-Scroggins's death made the offense an aggravated robbery; accordingly, appellant was an accomplice to that crime.
Affirmed.
Abramson and Murphy, JJ., agree. | [
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MIKE MURPHY, Judge
On December 7, 2016, a Miller County jury convicted appellant Ronald Anthony Antoniello of thirty counts of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child in violation of Arkansas Code Annotated section 5-27-602 (Repl. 2013). He received ten-year sentences on each count, to run consecutively, for a total of 300 years in the Arkansas Department of Correction. He now appeals, arguing that the circuit court erred in (1) admitting evidence of other child pornography for which he was not charged; (2) admitting testimony from Antoniello's former stepdaughter about past molestation by Antoniello; and (3) denying Antoniello's Batson challenge. We affirm.
This appeal centers around three pretrial motions and the consequences of those rulings. The relevant facts are these. At the trial, the State presented evidence that the cyber-crimes unit of the Arkansas Attorney General's Office had identified a computer that had downloaded videos of child pornography using a BitTorrent client. The investigator, James Lett, subpoenaed the internet service provider to find out the name and address of the subscriber corresponding to the IP address identified during the investigation. The information returned identified Antoniello. A search warrant was issued, and a search was conducted at Antoniello's home.
During the search, the investigators discovered a computer and a hard drive that contained suspected videos and images of child pornography. The computer and hard drive also contained search terms that are known to be used by people searching for illegal child pornography. There were also lists of websites, DVDs, CDs, and other items found at the home.
Before trial, the State indicated its intention to introduce evidence pursuant to Arkansas Rule of Evidence Rule 404(b). The trial court allowed the introduction of Rule 404(b) evidence over Antoniello's objection. In particular, Agent Chris Cone testified that Antoniello's computer had "over three thousand" images or videos depicting child pornography. However, Antoniello was not charged with possession of these images or videos and none of the "three thousand" images or videos were introduced at trial. The court overruled Antoniello's objection and allowed Agent Cone to testify to the amount of child pornography he found through his investigation.
In that same motion, the State also sought to offer evidence of "other instances of sexual acts involving children." The court granted the motion, and at sentencing, the State introduced evidence that involved Antoniello's former stepdaughter, who lived in Florida and whom he had not seen for nearly forty years. The stepdaughter testified about how Antoniello had sexually assaulted her when she was only nine or ten years old.
Finally, Antoniello challenges on appeal the State's peremptory strikes against two black jurors during jury selection. Antoniello, however, made his challenge on this point to the court after the jury had been sworn in. Antoniello argued that the State did not provide a race-neutral reason for the strikes. The court found the motion was not timely and denied it.
This appeal follows.
I. References to Additional Child Pornography
As previously mentioned, the circuit court permitted the State to introduce, over Antoniello's objection, testimony that Antoniello's computer contained "over three thousand" child-pornography images, for which Antoniello was not charged with possessing. Antoniello objected to the Rule 404(b) evidence on the basis of Arkansas Rule of Evidence 403, which provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
Arkansas Rule of Evidence 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove character, but the evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Circuit courts are afforded wide discretion in evidentiary rulings; specifically, a circuit court's ruling on issues relating to admission of evidence under Rules 401, 403, and 404(b) is entitled to great weight and will not be reversed absent an abuse of discretion. Anderson v. State , 2009 Ark. App. 804, 372 S.W.3d 385.
On appeal, Antoniello contends the "over three thousand" reference was not used to show any of the elements in Rule 404(b) but to persuade the jury that the sheer number of other images should be considered as additional counts for which the jury should punish, because the State referenced it again in closing:
And so, I'm gonna ask you to strongly consider the upper range of punishment for each and every one of those. And the reason is, is each and every one of those children in those thirty images, and keep in mind, that thirty images is just a small fraction, right, of the over three thousand, and that's just the three thousand that Agent Cone was able to say for sure are under the age of eighteen.
One of the elements the State is required to prove is that the defendant knowingly distributed, possessed, or viewed matter depicting sexually explicit conduct involving a child. See generally Steele v. State , 2014 Ark. App. 257, at 9-10, 434 S.W.3d 424, 430. The number of images found on Antoniello's computer is probative of his intent, lack of mistake, and knowledge and was thus properly admitted under Rule 404(b). See, e.g. , id. We cannot say that the circuit court abused its discretion in allowing the State to prove its case as conclusively as possible by referring to the total number of images found on Antoniello's computer. Id.
II. Testimony of Former Stepdaughter
For his second point on appeal, Antoniello argues that the circuit court abused its discretion by admitting the testimony of his former stepdaughter, Angela, that he had sexually assaulted her when she was a child.
Relevant evidence at a sentencing hearing includes relevant character evidence, evidence of aggravating and mitigating circumstances, and evidence relevant to guilt presented in the first stage of trial. Ark. Code Ann. § 16-97-103(5), (6), (7) (Repl. 2016); Crawford v. State , 362 Ark. 301, 306, 208 S.W.3d 146, 149 (2005). Evidence is relevant if it has 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). However, although evidence is relevant, it may nonetheless be excluded if "its probative value is substantially outweighed by the danger of unfair prejudice." Ark. R. Evid. 403. The danger of unfair prejudice must substantially outweigh the probative value of the evidence. Shreck v. State , 2017 Ark. 39, at 4, 510 S.W.3d 750, 752. The circuit court has wide discretion in admitting evidence, and its discretion will not be reversed without an abuse of discretion. Huff v. State , 2012 Ark. 388, at 7, 423 S.W.3d 608, 612.
Here, during the sentencing phase of the trial, the witness testified that one of the faces photoshopped onto the known images of child pornography was her sister. She also identified herself and her sister in photographs found at Antoniello's residence with titles such as "my lovers" and "My 10 year old lover." She ultimately testified that Antoniello had sexually assaulted her when she was a child.
Given the above facts and testimony, it was within the discretion of the circuit court to admit this testimony as relevant evidence of Antoniello's character, an aggravating circumstance, and guilt. Her testimony about the evidence found at Antoniello's apartment and his history of attraction to underage girls was relevant to his character and the crimes for which he was convicted, and it tends to make Antoniello's argument at closing that he possessed child pornography because he was "simply intrigued" when "he stumbled across it" less probable than it would be without the evidence. Accordingly, the probative value outweighs any prejudice in this instance, and we hold that the circuit court did not abuse its discretion in admitting it.
III. BatsonChallenge
Finally, Antoniello argues that the State exercised two peremptory strikes against black jurors without giving a race-neutral reason, contrary to Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (holding that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits prosecution from striking a prospective juror as a result of racially-discriminatory intent). The State argues that Antoniello's challenge was untimely and is therefore not preserved for our review. We will regard a Batson challenge as timely so long as the objection is made before the jury is sworn. Weston v. State , 366 Ark. 265, 271, 234 S.W.3d 848, 854 (2006). Here, the jury was selected and sworn on November 28, 2016. The trial began on December 6, 2016. Antoniello did not raise his Batson challenge until the day of trial, over a week after the jury had been sworn. Because his Batson challenge was untimely, he failed to preserve it for review by this court.
Affirmed.
Virden and Klappenbach, JJ., agree. | [
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LARRY D. VAUGHT, Judge
Richard Blasingame appeals the Sebastian County Circuit Court's termination of his parental rights to his three minor children, A.B., I.B., and R.B. On appeal, he argues that there was insufficient evidence to support any statutory ground for termination, termination was not in the children's best interest, and the court failed to enter a timely order. We affirm.
After numerous investigations into allegations of abuse and neglect dating back to 2011, the Arkansas Department of Human Services (DHS) removed Blasingame's three children in September 2015 because their mother was high on drugs and hallucinating.
Blasingame fled the home when police arrived. The case proceeded in the normal fashion, and Blasingame was ordered to comply with the case plan, which required that he maintain stable and appropriate housing, income, and transportation; complete parenting classes; complete drug, alcohol, and psychological assessments and all recommended treatment; submit to drug screens as required by DHS; and visit his children regularly. He was also ordered to complete domestic-violence classes.
The evidence presented at the termination hearing demonstrated that Blasingame failed to complete outpatient treatment or marital counseling ; failed to attend domestic-violence classes; and continued a pattern of criminal behavior throughout the case, resulting in multiple arrests for battery, trespass, and violation of his probation. Blasingame testified that he had been arrested six times during the pendency of this case. Blasingame also failed to maintain stable and appropriate housing and employment; he was evicted during the case. At the time of the termination hearing, Blasingame testified that he was currently living in a one-bedroom trailer and was hoping to soon move in with a friend, but he acknowledged that the friend's home would not be appropriate for the children.
The children went through numerous foster placements during the case. At one point, they were placed with their aunt and uncle, Justin Voight, who testified at the hearing. Voight testified that Blasingame's phone visitation with the children did not go well and that Blasingame had threatened to have Voight killed after they had a disagreement about phone visitation. The caseworkers testified that the children were currently placed together in a therapeutic foster home and that the foster parents were interested in adoption. Caseworkers testified that there was no reason to believe the children would not be adopted.
Blasingame claimed that he was unable to comply with many of the case-plan requirements because he lacked transportation, but his caseworker testified that she had provided him with a six-month supply of bus passes and had personally provided the family with transportation on many occasions. Blasingame also presented evidence that he had made some progress in the case recently. He was doing odd jobs, although it was not stable income and wasn't sufficient to support the children. He had completed parenting classes, a drug-and-alcohol assessment, and a psychological assessment. However, the circuit court found that this progress was insufficient given his continued instability, failure to follow the case plan, and numerous arrests and violent offenses. At the end of the February 2017 hearing, the court granted the petition to terminate Blasingame's parental rights, although it did not issue the written order until June. In its written order, the court found that termination was appropriate under three statutory grounds: (1) failure to remedy, (2) subsequent factors, and (3) aggravated circumstances (little likelihood that further services would result in successful reunification). The court also found that termination was in the children's best interest. Specifically, the court found that the children were adoptable and, alternatively, that if not adoptable, adoptability was of no legal significance because the risk of harm posed by returning them to their parents outweighed any concerns about their adoptability.
We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep't of Human Servs. , 344 Ark. 207, 40 S.W.3d 286 (2001). 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); 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. Anderson v. Douglas , 310 Ark. 633, 839 S.W.2d 196 (1992). The appellate inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep't of Human Servs. , 329 Ark. 243, 947 S.W.2d 761 (1997) ; Tucker v. Ark. Dep't of Human Servs. , 2011 Ark. App. 430, 389 S.W.3d 1 ;
Pine v. Ark. Dep't of Human Servs. , 2010 Ark. App. 781, 379 S.W.3d 703. Credibility determinations are left to the fact-finder. Moiser v. Ark. Dep't of Human Servs. , 95 Ark. App. 32, 233 S.W.3d 172 (2006).
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. Camarillo-Cox v. Ark. Dep't of Human Servs. , 360 Ark. 340, 201 S.W.3d 391 (2005) ; Cole v. Ark. Dep't of Human Servs. , 2012 Ark. App. 203, 394 S.W.3d 318. A parent's past behavior is often a good indicator of future behavior. Stephens v. Ark. Dep't of Human Servs. , 2013 Ark. App. 249, 427 S.W.3d 160. Termination of parental rights is an extreme remedy and in derogation of a parent's natural rights; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Pine , supra.
The standard of review in appeals of termination of parental rights is de novo, but we reverse a circuit court's decision to terminate parental rights only when it is clearly erroneous. Ullom v. Ark. Dep't of Human Servs. , 340 Ark. 615, 12 S.W.3d 204 (2000) ; Mitchell v. Ark. Dep't of Human Servs. , 2013 Ark. App. 715, 430 S.W.3d 851 ; Brewer v. Ark. Dep't of Human Servs. , 71 Ark. App. 364, 43 S.W.3d 196 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a distinct and firm conviction that a mistake was made. Wade v. Ark. Dep't of Human Servs. , 337 Ark. 353, 990 S.W.2d 509 (1999) ; Hopkins v. Ark. Dep't of Human Servs. , 79 Ark. App. 1, 83 S.W.3d 418 (2002).
Blasingame challenges the sufficiency of the evidence in support of each statutory ground found by the court. 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 first statutory ground cited by the court in support of termination was Blasingame's failure to remedy the conditions causing removal. Ark. Code Ann. § 9-27-341(b)(3)(B)(b)(i)(a) . Blasingame argues that the only "condition" causing removal on his part was the fact that he fled from the home when police arrived. However, both the affidavit of facts attached to DHS's petition for emergency custody and the court's subsequent order relied on DHS's extensive history with the family, including numerous allegations of domestic violence, abuse, and neglect going back to 2011. Although the mother's drug use was the final straw, both the petition and order clearly indicate that the former neglect and abuse were factors causing removal. Therefore, we find no reversible error in the circuit court's finding that Blasingame's continued pattern of violence, arrests, and instability constituted a failure to remedy those conditions.
Blasingame's second argument on this point asks us to reweigh the evidence supporting each of the court's findings, which we cannot do. He claims that his housing and work were more stable than the court believed, that his failure to complete domestic violence classes was excusable due to his lack of transportation and other time constraints, and that he had "remedied" his multiple arrests by having been sentenced on each charge so that no criminal charges were still pending at the time of the hearing. It is well settled that we will not reweigh the evidence on appeal, and credibility determinations are left to the circuit court. Newman v. Ark. Dep't of Human Servs. , 2016 Ark. App. 207, 489 S.W.3d 186. Again, we find no error in the circuit court's determination and affirm.
Blasingame further argues that the court erred by ignoring evidence of his recent progress. However, the court's final order does not ignore such evidence. The court acknowledged that Blasingame had completed parenting classes, drug-and-alcohol assessments, and a psychological assessment. However, it also listed numerous findings that weighed against Blasingame-his failure to complete domestic-violence classes, his multiple arrests and continued pattern of violent behavior, and his instability in housing and employment. Again, Blasingame is asking us to reweigh the evidence, focusing on his progress and ignoring the many ways he fell short. This we cannot do, and we affirm as to the sufficiency of the evidence supporting at least one statutory ground for termination.
Blasingame also challenges the court's best-interest finding. He again argues that the court failed to credit his recent progress and argues that there was insufficient evidence that returning the children to his custody would pose a threat of harm. We disagree. For the same reasons stated above, we will not reweigh the evidence in Blasingame's favor. His multiple arrests, pattern of violent behavior, death threats against Justin Voight, and instability all support the court's best-interest finding.
Blasingame's final argument on appeal is that the circuit court violated Arkansas Code Annotated section 9-27-341(e) by failing to file the written termination order within thirty days of the hearing. Instead, the court waited 127 days before filing the order. DHS contends that this argument was not raised below and is therefore not preserved for appeal. Blasingame responds that he never had the opportunity to raise this point before the filing of the termination order and relies on the rule that where a party has no opportunity to object to a circuit court's ruling, it is not necessary to raise the issue below in order to preserve it for appeal. Olson v. Olson , 2014 Ark. 537, at 7-8, 453 S.W.3d 128, 132-33. Our caselaw is clear that a posttrial motion is unnecessary to preserve an issue for appeal in a dependency-neglect case. Kelso v. Ark. Dep't of Human Servs. , 2013 Ark. App. 509, at 3, 2013 WL 5272997 ; Geatches v. Ark. Dep't of Human Servs. , 2016 Ark. App. 526, at 3, 2016 WL 6471686. Therefore, because Blasingame's first opportunity to raise the issue would have been in a posttrial motion, his argument is not barred from appellate review due to lack of preservation.
However, Blasingame's challenge to the timeliness of the order fails on its merits. He has acknowledged that our precedents unequivocally hold that compliance with this part of the statute is little more than a "best practice," the violation of which does not warrant reversal or any other sanction. Wade v. Ark. Dep't of Human Servs. , 337 Ark. 353, 360, 990 S.W.2d 509, 514 (1999) (finding that the failure to file an order terminating parental rights within thirty days as required by statute was not jurisdictional and the legislature did not provide for any penalty).
Newman , 2016 Ark. App. 207, at 14, 489 S.W.3d at 194. There are numerous cases holding that failure to comply with the statute's time requirement is not jurisdictional and does not warrant reversal. Faussett v. Ark. Dep't of Human Servs. , 2017 Ark. App. 168, at 8, 2017 WL 1019021 (no error denying a motion to dismiss for not filing the termination petition within thirty days from the permanency-planning hearing as required by statute); Hill v. Ark. Dep't of Human Servs. , 2012 Ark. App. 108, at 6, 389 S.W.3d 72, 75 (finding that the failure to hold a hearing on a termination petition within ninety days from filing as required by statute was not jurisdictional). While Blasingame argues that these cases were wrongly decided and should be reversed, we need not consider this argument because the Arkansas Supreme Court decided Wade v. Arkansas Department of Human Services , cited above, and the Arkansas Court of Appeals is not at liberty to overturn a decision of the Arkansas Supreme Court. Metcalf v. Texarkana Sch. Dist. , 66 Ark. App. 70, 73, 986 S.W.2d 893, 894 (1999) ; Conway v. State , 62 Ark. App. 125, 969 S.W.2d 669 (1998) ; Nelson v. Timberline Int'l., Inc. , 57 Ark. App. 34, 942 S.W.2d 260 (1997) ;
Cheshire v. Foam Molding Co. , 37 Ark. App. 78, 822 S.W.2d 412 (1992) ; Myles v. Paragould Sch. Dist. , 28 Ark. App. 81, 770 S.W.2d 675 (1989).
Affirmed.
Abramson and Hixson, JJ., agree.
Maura Blasingame is not a party to this appeal.
There was inconsistent evidence as to whether he fled immediately before or after police arrived at the home.
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KAREN R. BAKER, Associate Justice
Petitioner Adam Davis, Jr., brings a fourth petition to reinvest jurisdiction in the trial court to file a petition for writ of error coram nobis in the trial court in his criminal case. This court dismissed or denied his first three such petitions. Davis v. State , 2017 Ark. 74, 511 S.W.3d 847 (per curiam); Davis v. State , 2016 Ark. 296, 498 S.W.3d 279 (per curiam); Davis v. State , 2016 Ark. 69, 2016 WL 675435 (per curiam). Additionally, Davis filed a motion to proceed in forma pauperis, a motion for appointment of counsel, and a motion that he be permitted to file a response to the State's response to his petition in which he argues that recent precedent supports his claims for relief.
In the petition, Davis contends that he was not competent to stand trial; that the trial court did not meet its obligation under Ake v. Oklahoma , 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), to provide him with a mental-health expert to assist in his defense; that the State violated Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by not disclosing all evidence favorable to the defense; that the evidence was insufficient to establish that he acted with deliberation and premeditation when he committed the offenses of which he was convicted; and that the trial court erred in declining a jury instruction favorable to his claim of mental disease or defect and in denying the jury access to significant information concerning his mental state. We find that the allegations are largely a repetition of claims already raised in his prior petitions, and to the degree that Davis has enlarged on the claims, the claims are without merit. For this reason, the petition is dismissed as an abuse of the writ. Davis's motion to proceed in forma pauperis, motion for appointment of counsel, and motion to be permitted to file a response to the State's response are 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 ; 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. It is the petitioner's burden to show that a writ of error coram nobis is warranted. This burden is a heavy one because a writ of error coram nobis is an extraordinarily rare remedy. Jackson v. State , 2017 Ark. 195, 520 S.W.3d 242.
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. This court will grant permission to proceed with a petition for the writ only when it appears that, looking to the reasonableness of the allegations of the proposed petition and the existence of the probability of the truth of those allegations, the proposed attack on the judgment is meritorious. Isom v. State , 2015 Ark. 225, 462 S.W.3d 662.
III. Background
In 2008, a jury found Davis guilty of capital murder, attempted first-degree murder, and two counts of use of a firearm in the commission of a felony. Consecutive sentences of life imprisonment without parole and a total of 720 months' imprisonment were imposed. We affirmed. Davis v. State , 2009 Ark. 478, 348 S.W.3d 553.
IV. Repetition of Claims for the Writ
The grounds raised by Davis in this fourth petition are issues already raised in his three prior petitions for writ of error coram nobis. Reassertion of the same claims without sufficient facts to distinguish the claims from those raised in a previous coram nobis petition is an abuse of the writ and subjects the petition to dismissal. Jackson , 2017 Ark. 195, 520 S.W.3d 242 ; see also United States v. Camacho-Bordes , 94 F.3d 1168 (8th Cir. 1996) (holding that res judicata did not apply to bar a second petition for writ of error coram nobis, but abuse-of-writ doctrine was applied to subsume res judicata). Due process does not require this court to entertain an unlimited number of petitions to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis in a particular case. This court has the discretion to determine whether the renewal of a petitioner's application for the writ will be permitted to go forward even if there are additional facts in support of repetitive grounds. Chatmon v. State , 2017 Ark. 229, 2017 WL 3300517.
In his first petition, Davis argued that the trial court made several errors in its rulings and that he was denied due process because the court did not allow into evidence all the evidence he desired to bring forth to the jury. The same allegation is raised again in this fourth petition with the addition of new claims of trial error, but a claim of trial error is not a ground for the writ. By its very nature, a question concerning a trial court's ruling could have been settled in the trial court and on the record on direct appeal. Accordingly, the allegation that the trial court made some mistake in its rulings, including rulings concerning the admissibility of evidence, is not within the purview of a coram nobis proceeding. Mason v. State , 2014 Ark. 288, 436 S.W.3d 469. The writ will not lie to retry the defendant or to reexamine the strength of the evidence adduced at trial. Carner v. State , 2018 Ark. 20, 535 S.W.3d 634.
With respect to Davis's assertion that he was incompetent, which appears to encompass his mental state both at the time of the offenses and at the time of trial, the claims are essentially the same as those raised in his earlier petitions. Merely restating an allegation raised in a prior coram nobis petition does not automatically provide grounds for a successive petition for the writ. Chatmon , 2017 Ark. 229. Davis has expanded on the claim of incompetence by contending that he should have been provided with a mental-health expert to assist the defense under Ake and other cases and that his mental evaluation should have been conducted at the Arkansas State Hospital rather than at another facility. These additional allegations do not constitute a showing of evidence extrinsic to the record that could not have been argued at trial. The writ functions to correct mistakes of fact, not mistakes of law. Ridgeway v. State , 239 Ark. 377, 389 S.W.2d 617 (1965).
Davis argued at trial that his intent or state of mind was the central issue in whether he was guilty of the offenses and that the State failed to prove that he acted with the requisite mental state for each offense. Defense counsel sought, and was denied, instructions on the lesser-included offenses of second-degree murder and manslaughter with extreme emotional disturbance. The crux of Davis's grounds for the writ in all of his petitions-including the one now under consideration-with respect to the evidence adduced at trial, as well as the evidence he argued could have been adduced, was that there was information available that he wanted the jury to hear and was not brought out. The argument, as such, does not satisfy any ground for granting the writ because Davis does not argue that there was any evidence extrinsic to the record that was hidden from the defense or that was unknown at the time of trial. Larimore v. State , 327 Ark. 271, 938 S.W.2d 818 (1997). Neither Davis's dissatisfaction with the trial court's rulings concerning his competence nor his dissatisfaction with the evidence presented to the jury constitutes a showing of extrinsic evidence that would have produced a different verdict had it been known at trial. See Cloird v. State , 357 Ark. 446, 182 S.W.3d 477 (2004).
Davis continues to fail to offer facts sufficient to warrant granting leave to proceed in the trial court for the writ. See Jackson , 2017 Ark. 195, at 7, 520 S.W.3d 242, 247 (The addition of new factual allegations surrounding an issue raised in a prior petition was not sufficient to distinguish the claims in the latest petition from the claims in prior petitions in that the allegations involved matters that were known or could have been discovered at the time of trial and otherwise failed to establish that material evidence had been withheld by the prosecution.). The application for coram nobis relief must make full disclosure of specific facts relied on as the basis for the writ. Martinez-Marmol v. State , 2018 Ark. 145, 544 S.W.3d 49. Because those few additional facts that Davis offers are not sufficient to support his claims, this fourth petition, as with the third petition, is an abuse of the writ and subject to dismissal for that reason.
Davis further invokes Brady , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, as a ground for the writ and claims that the State should have produced for the jury all available information pertaining to his mental health. The mere fact that a petitioner alleges a Brady violation is not sufficient to provide a basis for the writ. 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). 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. Here, Davis offers no proof that the State suppressed any specific evidence pertaining to his competence. Mosley v. State , 2018 Ark. 152, 544 S.W.3d 55 (holding that a Brady violation occurs if the defense was prejudiced because the State wrongfully withheld evidence from the defense prior to trial).
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KENNETH S. HIXSON, Judge
Appellants, Arkansas Health Center (AHC) and Arkansas Insurance Department, Public Employee Claims Division (PECD), appeal from a November 22, 2017 opinion by the Arkansas Workers' Compensation Commission (Commission). The Commission granted additional medical treatment to appellee Stephanie Burnett-specifically, the surgery recommended by Dr. James R. Adametz and additional temporary total-disability (TTD) benefits from February 23, 2017, until a date yet to be determined. On appeal, appellants contend that substantial evidence does not support the Commission's decision. We affirm.
Appellee worked as a certified nursing assistant for AHC before her injuries. The parties stipulated that she sustained a compensable back injury on April 11, 2016. Appellee claimed that she injured her back while she was showering a patient. She was treated at Saline Memorial Hospital and discharged with "THORACIC STRAIN." After returning to work, appellee sustained a stipulated compensable neck injury on April 15, 2016. Appellee claimed that the right side of her neck popped and that her right side went numb when she was assisting a resident out of bed into her wheelchair. She was treated at Saline Memorial Hospital and discharged with "THORACIC STRAIN, THORACIC MUSCLE SPASM."
Appellee was subsequently treated conservatively by Dr. Bruce W. Randolph at University of Arkansas for Medical Sciences. An MRI of appellee's lumbar, thoracic, and cervical spine was taken in May 2016. That MRI revealed the following relevant impressions according to the radiologist:
1. Minimal degenerative changes in the lower cervical spine at C6-7. There is no canal stenosis of neural foraminal narrowing.
2. Minimal degenerative changes in the lower lumbar spine. There is no canal stenosis or neural foraminal narrowing.
3. The cord appears normal in size and signal.
Dr. Randolph noted that he considered those findings to be within normal limits and that he was releasing her from his care to resume her regular duties.
Appellee formally changed physicians and began receiving treatment from Dr. Adametz on June 21, 2016. Dr. Adametz examined appellee and reviewed her May 2016 MRI. Regarding the MRI, Dr. Adametz noted that
[t]he cervical spine shows sort of a central disc herniation at C6-7, it is not causing any real cord compression or anything, but is not normal. There is a questionable abnormality at C5-6 in the foramen, but I could not see it on all the views. The rest of the neck looks okay. The thoracic spine did not show anything significant. The lumbar spine showed multiple small bulging discs, but not anything major that looked surgical or anything.
He recommended conservative treatment at that time. Appellee received physical therapy, epidural steroid injections, and medication.
On October 7, 2016, Dr. Adametz noted that appellee stated her pain had "settled down a bit" and that it was more localized in her neck and shoulder. She complained of pain in her left arm and numbness in the index and middle fingers of the left hand, which Dr. Adametz stated was consistent with the C6-7 disc abnormality he observed in the MRI. Dr. Adametz further noted that appellee indicated that she "can live with her low back and mid-back, it is the neck, shoulder and arm that is killing her." Documentation in the record reflects that appellee subsequently received additional physical therapy, but she claimed that her symptoms continued.
Dr. Adametz indicated that he wanted to order a second MRI before he considered any surgical options. A January 24, 2017 MRI indicated the following relevant impressions according to the radiologist:
C5-6: Shallow disc bulge slightly flattens the anterior thecal space but without significant mass-effect.
C6-7: Shallow disc osteophyte complex and mild right unconvertebral hypertrophy cause mild central stenosis slightly flattening the anterior surface of the cord and mild right foraminal narrowing. There is good fluid maintained posterior to the cord at this level.
....
Multilevel spondylitic changes as above most prominent at C6-7 where there is mild central stenosis and mild right foraminal narrowing. I do not identify pathology to explain the patient's reported left upper extremity symptoms.
Dr. Adametz stated in a progress note that he reviewed the second MRI and met with appellee on January 24, 2017. Dr. Adametz explained that the MRI scan showed "a small disc herniation at C6-7, which is a little bit eccentric to the left side." Therefore, he offered appellee an anterior discectomy and fusion at C6-7, opining that surgery might benefit that particular spot because it looked the most significant. In a form requesting the surgery that was sent to the PECD, Dr. Adametz checked "Yes" to the question, "Can you state within reasonable degree of medical certainty if need for surgery is greater than 50% related to our work injury?" Furthermore, in a February 10, 2017 progress note, Dr. Adametz noted that appellee desired to go ahead with the surgery. He additionally noted that "[s]he understands that I have certainly not made any kind of guarantee of the success of it, but I think that is the best thing I have to offer her. We are waiting on approval on it."
Dr. Steven L. Cathey conducted an independent neurosurgical evaluation and ultimately disagreed with Dr. Adametz's diagnosis and recommendation. Dr. Cathey specifically noted the following on February 23, 2017:
There are degenerative changes particularly in the cervical area but no significant canal stenosis, disc herniation, etc. We also reviewed an updated MRI scan of her cervical spine ordered by Dr. Adametz at Arkansas Surgical Hospital last month. There is reversal of the cervical lordosis but no significant canal stenosis, nerve root compression, etc.
At this point, the diagnosis is degenerative cervical disc disease. Her lumbar study is negative so I do not have a good explanation for her chronic low back pain. Although Dr. Adametz has offered her an anterior cervical decompression and fusion at C6-7, unfortunately, I do not believe the patient will benefit from spinal surgery or other neurosurgical intervention. The patient was adamant in her disagreement with my assessment of her clinical presentation and her long-term prognosis.
At this point, she is at maximal medical improvement with regard to the occupational injuries of 4/11/16, as well as the subsequent event on 4/15/16. I see no additional indication for treatment related to these events.
There is no impairment rating as there are no objective findings either clinically or radiographically related to the occupational injury in question.
As far as her work is concerned, based on today's exam, I believe she can be released to return to full employment without restriction.
Thereafter, appellants disputed that appellee was entitled to the surgery recommended by Dr. Adametz and additional TTD benefits, and a hearing was held before the administrative law judge (ALJ). At the hearing, appellee testified as to her injuries, pain, and the case history as already set out above. In addition to the medical documents introduced, deposition testimony from both Dr. Adametz and Dr. Cathey were introduced into evidence. In his deposition, Dr. Adametz reiterated his course of treatment and findings, and he stated that he recommended that appellee undergo surgery based on his "objective finding" that she has a "disc herniation at the C6-7 on the MRI." In contrast, Dr. Cathey reiterated in his deposition his opinion that the degeneration at C6-7 was not an objective finding that related to appellee's symptoms of numbness or weakness on the left side of her body. He further opined that the degeneration or disc herniation identified on the MRI was not unexpected and was, in fact, normal for appellee's age. Although he diagnosed appellee with degenerative cervical-disc disease, he stated that he would not recommend surgery as a reasonable and necessary treatment. Instead, Dr. Cathey did not recommend any other medical treatment but would recommend releasing her to work without any restrictions.
Additionally, our record contains an independent peer-review report from the Medical Review Institute of America, Inc., regarding appellee's proposed treatment. The report specifically opines that "the proposed anterior cervical discectomy and fusion is indicated and medically appropriate." Thus, the report agreed with Dr. Adametz's recommendation.
The ALJ filed his opinion on June 1, 2017, wherein he found that appellee failed to satisfy her burden of proof that she was entitled to additional medical treatment or additional TTD. Appellee appealed the ALJ's decision, and on November 22, 2017, the Commission, in a unanimous decision, reversed the ALJ and made the following relevant findings:
In the present matter, the Full Commission finds that the claimant proved by a preponderance of the evidence that she was entitled to surgery recommended by Dr. Adametz. The parties stipulated that the claimant sustained a compensable injury on April 11, 2016. The claimant was diagnosed with a thoracic strain after injuring her back at work on April 11, 2016. The parties stipulated that the claimant sustained a compensable neck injury on April 15, 2016. The Claimant testified that the right side of her neck "popped" while helping a patient from bed into a wheelchair. The claimant received conservative medical treatment beginning April 15, 2016.
Dr. Randolph's assessment on April 19, 2016 included "Muscle strain with spasm." An MRI of the claimant's cervical spine on May 12, 2016 showed "Minimal degenerative changes in the lower cervical spine at C6-7." Dr. Randolph opined on May 17, 2016, "I consider these findings to be within normal limits." Dr. Randolph assessed maximum medical improvement and released the claimant from his care on May 31, 2016. However, because the claimant requested a second opinion, Dr. Randolph planned a neurosurgical referral. Dr. Adametz therefore began treating the claimant on June 21, 2016. Dr. Adametz initially planned conservative medical treatment. The claimant thereafter underwent cervical epidural steroid injections and physical therapy.
Dr. Adametz arranged additional diagnostic testing. An MRI of the claimant's cervical spine on January 24, 2017 showed "Multilevel spondylitic changes as above most prominent at C6-7 where there is mild central stenosis and mild right foraminal narrowing." Dr. Adametz reported on January 24, 2017, "The only thing I have left to offer would be an anterior discectomy and fusion at C6-7." Dr. Adametz opined at deposition that there was at least a "50 percent or greater" chance that the claimant would benefit from surgery. We recognize Dr. Cathey's contrasting opinion that the claimant would not benefit from surgery. However, it is within the Commission's province to weigh all of the medical evidence and to determine what is most credible. Minnesota Mining & Mfg. v. Baker , 337 Ark. 94, 989 S.W.2d 151 (1999). The Commission has the authority to accept or reject a medical opinion and the authority to determine its probative value. Poulan Weed Eater v. Marshall , 79 Ark. App. 129, 84 S.W.3d 878 (2002).
In the present matter, the Full Commission finds that Dr. Adametz's opinion is more credible than Dr. Cathey's opinion and is entitled to significant evidentiary weight. The Full Commission finds that the evidence of record corroborates Dr. Adametz's opinion. Said evidence includes the February 7, 2017 report from Medical Review Institute of America, "The proposed procedure is a C6-7 anterior cervical discectomy and fusion (ACDF).... The proposed anterior cervical discectomy and fusion is indicated and medically appropriate." The respondents argue on appeal, "There are no objective findings to support the complaints the claimant makes, just her subjective complaints of pain." Nevertheless, the Full Commission notes the parties' stipulation that the claimant sustained compensable injuries on April 11, 2016 and April 15, 2016. The claimant is not required to offer objective medical evidence to prove that her healing period continues. Chamber Door Indus., Inc. v. Graham , 59 Ark. App. 224, 956 S.W.2d 196 (1997).
Based on our de novo review of the entire record, the Full Commission finds that the claimant proved she was entitled to additional medical treatment, specifically surgery recommended by Dr. Adametz. The Full Commission finds that the recommended surgery is reasonably necessary in accordance with Ark. Code Ann. § 11-9-508(a) (Repl. 2012). The respondents paid temporary total disability benefits until February 23, 2017. The Full Commission finds that the claimant remained within a healing period as of February 23, 2017 and was totally incapacitated from earning wages. The claimant therefore proved she was entitled to temporary total disability benefits from February 23, 2017 until a date yet to be determined. See Ark. State Hwy. Dept. v. Breshears , 272 Ark. 244, 613 S.W.2d 392 (1981).
The claimant's attorney is entitled to fees for legal services in accordance with Ark. Code Ann. § 11-9-715(a) (Repl. 2012). For prevailing on appeal to the Full Commission, the claimant's attorney is entitled to an additional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b) (Repl. 2012).
In appeals involving claims for workers' compensation, the appellate court views the evidence in the light most favorable to the Commission's decision and affirms the decision if it is supported by substantial evidence. Prock v. Bull Shoals Boat Landing , 2014 Ark. 93, 431 S.W.3d 858. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission, but whether reasonable minds could reach the result found by 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. Thus, we are foreclosed from determining the credibility and weight to be accorded to each witness's testimony, and we defer to the Commission's authority to disregard the testimony of any witness, even a claimant, as not credible. Wilson v. Smurfit Stone Container , 2009 Ark. App. 800, 373 S.W.3d 347 (2009). 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. Prock , supra.
Arkansas Code Annotated section 11-9-508(a) (Repl. 2012) requires an employer to provide an employee with medical and surgical treatment "as may be reasonably necessary in connection with the injury received by the employee." However, a claimant bears the burden of proving entitlement to additional medical treatment. LVL, Inc. v. Ragsdale , 2011 Ark. App. 144, 381 S.W.3d 869. What constitutes reasonably necessary treatment is a question of fact for the Commission. Id. The Commission has authority to accept or reject medical opinion and to determine its medical soundness and probative force. Id. Furthermore, it is the Commission's duty to use its experience and expertise in translating the testimony of medical experts into findings of fact and to draw inferences when testimony is open to more than a single interpretation. Id.
On appeal, appellants argue that the Commission erred in awarding additional medical treatment and benefits because there were no objective findings to support appellee's subjective complaints of pain. This argument, however, lacks merit because, even if true, appellants stipulated that appellee sustained compensable injuries to her back and neck, and a claimant who has sustained a compensable injury is not required to offer objective medical evidence to prove entitlement to additional benefits. See Chamber DoorIndus., Inc. v. Graham , 59 Ark. App. 224, 956 S.W.2d 196 (1997) ; Ark. Dep't of Cmty. Corr. v. Moore , 2018 Ark. App. 60, 2018 WL 632164. Additionally, appellants repeatedly argue that Dr. Adametz merely made an "offer" of surgery rather than state that he "recommended" it. However, our record does not support this assertion. On February 10, 2017, Dr. Adametz stated, "I think [surgery] is the best thing I have to offer her." Further, to the extent there was still any ambiguity, Dr. Adametz clarified [in his deposition] that he was "recommending" surgery.
Ultimately, the Commission was confronted with multiple medical opinions and credited Dr. Adametz's recommendation, which was also supported by the Medical Review Institute of America, Inc. It is within the Commission's province to reconcile conflicting evidence, including the medical evidence. Boykin v. Crockett Adjustment Ins. , 2013 Ark. App. 157, 2013 WL 828582. The Commission has the duty of weighing medical evidence, and the resolution of conflicting evidence is a question of fact for the Commission. See Ark. Human Dev. Ctr. v. Courtney , 99 Ark. App. 87, 257 S.W.3d 554 (2007). It is well settled that the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Id. Under the particular facts of this case, we cannot say that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Therefore, we affirm the Commission's decision to award additional medical treatment.
Appellants finally contest the Commission's award of additional TTD benefits. TTD is appropriate during the healing period when an employee suffers a total incapacity to earn wages. Fuller v. Pope Cty. Judge , 2018 Ark. App. 1, 538 S.W.3d 851. Appellants argue that the Commission erred in awarding additional TTD because Dr. Cathey opined that appellee did not need surgery and that there was no medical reason to support the work restrictions. However, because we are affirming the Commission's decision to credit Dr. Adametz's opinion and its decision that appellee is entitled to additional medical treatment, we also affirm the Commission's award of additional TTD benefits.
Affirmed.
Glover and Vaught, JJ., agree. | [
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KENNETH S. HIXSON, Judge
Windsong Enterprises, Inc., brings this appeal from the order of the Cleburne County Circuit Court granting partial summary judgment in favor of appellees Red Apple Enterprises Limited Partnership, its general partner, Richard Upton, and related entities (collectively, Red Apple). Windsong only challenges a single basis for the summary judgment, leaving an unchallenged basis to support the court's ruling. Accordingly, we summarily affirm.
This case is part of a long-running dispute between land developers over property located in Eden Isle Subdivision in Cleburne County. Windsong purchased a tract of real property in Eden Isle Subdivision at a 1997 foreclosure sale. The property, known as Southwinds, had previously been owned by Red Apple. Soon after the foreclosure sale, Windsong discovered that the property it had acquired included parts of the Red Apple golf course. Initially, Upton made several attempts to reacquire the golf course encroachments, but the parties were unable to agree on a purchase price. According to Windsong, it was at that point that Upton began to interfere with Windsong's plans to develop its land in Eden Isle in accordance with the bill of assurance in effect at the time Windsong purchased the land.
Specifically, in 1997, the bill of assurance reflected that the Southwinds property was zoned for condominiums. Windsong claimed that, in retaliation for the golf-course dispute, Upton had gathered support from relatives and friends who also owned property in the Eden Isle subdivision to amend the bill of assurance so as to restrict the development of unplatted acreage, such as Southwinds, to single-family residences.
Litigation ensued in 1998, brought by Eden Isle Corporation, a nonprofit corporation, against Windsong on the issue of whether Windsong should be allowed to subdivide its property without approval from Eden Isle Corporation. Windsong filed a counterclaim and a third-party complaint that brought Red Apple and Upton into the litigation. Eventually, the supreme court affirmed a summary judgment in favor of Upton on Windsong's claim for tortious interference with business expectancy. Windsong Enters., Inc. v. Upton , 366 Ark. 23, 233 S.W.3d 145 (2006) ( Windsong I ).
The bill of assurance of Eden Isle was amended several times between December 2003 and January 2008. The amendments required signatures of landowners owning more than 50% of the total acreage of Eden Isle. Windsong contends that it learned that Red Apple had intentionally misrepresented that it owned more acreage than it did, making it appear that it owned 48% of the acreage, and this acreage combined with other land belonging to family and friends gave it more than the 50% required to control development. According to Windsong, Red Apple made a series of misrepresentations in filings in the public tax and land records. Windsong conducted an examination of the records and commissioned a survey that, according to Windsong, revealed Red Apple's acreage was far less than the amount that Red Apple represented that it owned.
Windsong filed suit against Red Apple, asserting causes of action for (1) fraud; (2) intentional interference with business expectancy; (3) breach of contract; and (4) declaratory judgment as to the validity of some of the amendments to the bill of assurance. Windsong later amended its complaint to include a claim for negligence. In response, Red Apple filed a motion for partial summary judgment, arguing that Windsong's three tort claims were barred by the three-year statute of limitations, res judicata, and collateral estoppel. According to Red Apple, most of Windsong's claims in its second amended complaint were raised, or could have been raised, in the prior litigation leading to
WindsongI . Windsong responded that Red Apple had fraudulently concealed its true ownership percentage by filing falsified records. Red Apple asserted that the records have been on file for over a decade and provided constructive notice to Windsong of any potential claims. Windsong argued that fraudulent public records could not put a party on constructive notice.
The circuit court held a hearing on the motion for summary judgment. At the conclusion of the hearing, the court ruled from the bench and granted partial summary judgment on the three tort claims on the basis of the statute of limitations. The court did not discuss Red Apple's other grounds for summary judgment. The court's written order, however, did not specify a reason for the decision. In the written order, the circuit court stated only that "the court finds and determines that the Upton Entities' motion for partial summary judgment should and hereby is granted" with respect to the three tort claims.
Although this appeal concerns the partial summary judgment decided in December 2010, the litigation continued for another six years. None of these later actions are germane to this appeal. This appeal timely followed entry of the order that disposed of the final outstanding claim.
On appeal, Windsong argues that summary judgment was improper because the statute of limitations was tolled by Red Apple's fraudulent concealment and that it exercised reasonable diligence in discovering the fraud. This argument, however, ignores Red Apple's alternative contention that res judicata and collateral estoppel also barred Windsong's tort claims.
The fact that the circuit court in this case may have orally indicated that it was basing its decision on the statute of limitations is not controlling because that ruling was never reduced to writing. An oral order announced from the bench does not become effective until reduced to writing and filed. Nat'l Home Ctrs., Inc. v. Coleman , 370 Ark. 119, 121, 257 S.W.3d 862, 863 (2007). As our supreme court has recognized, "the written order controls." Id. The circuit court's written order did not specify any particular basis for its decision. Instead, the order simply provided that the motion for summary judgment should be granted with respect to the three tort claims.
Our courts have recognized that when a circuit court grants a summary-judgment motion without expressly stating the basis for its ruling, that ruling encompasses all of the issues presented to the circuit court by the briefs and arguments of the parties. Hardin v. Bishop , 2013 Ark. 395, 430 S.W.3d 49 ; see also Quarles v. Courtyard Gardens Health & Rehab., LLC , 2016 Ark. 112, 488 S.W.3d 513. Here, Windsong and Red Apple both briefed the issues of fraudulent concealment, res judicata, and collateral estoppel to the circuit court. The court's written order simply provided that the motion should be granted without stating the grounds. Therefore, we have no alternative but to conclude that the circuit court's grant of the motion for summary judgment constituted a ruling on all of the issues raised by the parties, including Red Apple's allegation that Windsong's claims were barred by res judicata.
In its opening brief to this court, Windsong argues the case solely on the issues of fraudulent concealment and whether it exercised due diligence in attempting to discover the fraud. However, with its blanket ruling, the circuit court is deemed to have accepted all of the arguments advanced by Red Apple, see Quarles , supra , including its contention that Windsong's current claims were also barred by res judicata because they either had been raised, or could have been raised, in the case leading to Windsong I . Because Windsong does not raise an argument to contest that finding in its opening brief, we cannot address any issue regarding the circuit court's decision to grant partial summary judgment to Red Apple on the tort claims. Quarles , supra ; see also English v. Robbins , 2014 Ark. 511, 452 S.W.3d 566 ; Pearrow v. Feagin , 300 Ark. 274, 778 S.W.2d 941 (1989).
While Windsong attempts to argue in its reply brief that res judicata does not apply in this case, this argument comes too late. We have consistently ruled that issues cannot be raised for the first time in a reply brief. See Quarles , supra ; Jewell v. Fletcher , 2010 Ark. 195, 377 S.W.3d 176.
Affirmed.
Abramson and Vaught, JJ., agree.
Propco Limited Partnership No.1, Propco, Inc., United Resorts, Inc., and UDC, LLC. United Resorts is alleged to be a general partner in Red Apple, and Upton is also its general partner.
The bill of assurance grants Eden Isle Corporation certain authority with reference to the lots and property in Eden Isle Subdivision. Upton is alleged to have voting representation on Eden Isle Corporation's board of directors.
Red Apple filed a motion to dismiss the appeal on the basis that Windsong did not first seek approval from the circuit court to file the notice of appeal. The motion had been passed until the case was submitted. We deny the motion. | [
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....
Throughout the case, the court found that children needed to be separated, yet at no time during the termination hearing was any testimony introduced regarding the likelihood that J.F. and K.F. could be adopted together-or whether it was in their best interest not to be adopted together, as well as their prospects to be adopted together given J.F.'s issues-despite there being
testimony and documentary [evidence] that resuming sibling visits would be beneficial to both children. A complete lack of evidence can never be sufficient evidence of something.... Sibling groups matter, DHS's burden at trial matters.
She asks us to "make good" on our warning in Renfro v. Arkansas Department of Human Services , 2011 Ark. App. 419 at 8 n. 3, 385 S.W.3d 285, 289 n. 3, that "bare minimum" evidence is not sufficient concerning the adoptability prong of best interest.
DHS responds that it does not have to prove the likelihood or probability of adoption. "Rather, there must be evidence presented and the trial court must consider that evidence. That's all. To set the bar higher would unfairly punish children with special needs or developmental disabilities who need permanency-especially if the behavior and development issues are a direct result of the parent's inattention and unfitness-as in this case." DHS cites McDaniel v. Arkansas Department of Human Services , 2013 Ark. App. 263, 2013 WL 1776479, arguing that even if a child is unlikely to be adopted, it can still be in his or her best interests to terminate the parents' rights. "DHS is not required to disprove all possible barriers to adoption, such as behavioral issues, with clear and convincing evidence." The circuit court is required only to weigh the evidence of adoptability.
Under Arkansas law, to terminate parental rights, a circuit 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). While the likelihood of adoption must be considered by the circuit court, that factor is not required to be established by clear and convincing evidence. Hamman v. Ark. Dep't of Human Servs. , 2014 Ark. App. 295, at 9, 435 S.W.3d 495, 501. A caseworker's testimony that a child is adoptable is sufficient to support an adoptability finding. Caldwell v. Ark. Dep't of Human Servs. , 2016 Ark. App. 144, at 5, 484 S.W.3d 719, 722. Adoptability is not an essential element of proof. McDaniel , 2013 Ark. App. 263. The statute does not require any "magic words" or a specific quantum of evidence regarding a child's adoptability but simply provides that the circuit court consider the likelihood that the child will be adopted in making its best-interest determination. Sharks v. Ark. Dep't of Human Servs , 2016 Ark. App. 435, 502 S.W.3d 569 ; see also Renfro , 2011 Ark. App. 419, at 10, 385 S.W.3d at 290 ("neither the statute nor our case law requires any specific quantum of evidence [on adoptability]").
In this case, the circuit court did not have the benefit of the 2017 DHS report on foster care and adoption that Carrie cites in her brief, because it was not entered as evidence into the record. An appellate court does not consider matters outside the record, and it is an appellant's burden to bring up a record sufficient to demonstrate error. Dep't of Career Educ., Div. of Rehab. Servs. v. Means , 2013 Ark. 173, 426 S.W.3d 922. In this case, the circuit court heard the evidence of adoptability, the evidence that J.F. and K.F. would likely not be together, the evidence that J.F. had significant behavioral and mental-health issues, and the evidence of the parents' major drug problems and instability, and weighed the evidence in favor of termination. We cannot say that the circuit court erred in finding that termination of parental rights was in J.F. and K.F.'s best interest.
III. Michael Fisher
Michael argues on appeal that DHS produced insufficient evidence of any termination ground and that a termination was not in the children's best interest.
We affirm the termination of Michael's parental rights on the subsequent-factors ground, which is a statutory ground that DHS pled and the circuit court found. This ground requires clear and convincing proof 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. Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a ). Termination of parental rights is a drastic remedy that is necessary to provide permanency in a juvenile's life in circumstances in which return to the family home is contrary to the juvenile's health, safety, or welfare, and it appears from the evidence that return to the family home cannot be accomplished in a reasonable period as viewed from the juvenile's perspective. Ark. Code Ann. § 9-27-341(a)(3). That means that a child's need for permanency and stability may override a parent's request for additional time to improve the parent's circumstances. Fredrick v. Ark. Dep't of Human Servs. , 2010 Ark. App. 104, 377 S.W.3d 306.
In this case, Robert Hammond, a substance abuse counselor, submitted a letter to the court that stated Michael had completed an assessment in February 2017, almost a year into the case. The result of the assessment was a recommendation of two (12-week) outpatient services to address Michael's psychiatric issues and substance abuse. Michael did not comply with the outpatient recommendation, did not return phone calls or written correspondence and tested positive for methamphetamine. As stated in the facts above, Michael pretty much failed to follow any court order throughout the entire case. There was other testimony that before February 2017, he had few visits with the children, he had not addressed substance-abuse issues, had not maintained stable housing, and had not participated in counseling services. During the termination hearing, he testified that he was waiting on disability benefits and that he did not know how long it would be before he could support his children. The circuit court's decision to terminate his parental rights on the subsequent-factors ground was not clearly erroneous.
As far as best interest, Michael does not challenge the court's adoptability finding as to K.F., but he does as to J.F. Michael's argument about J.F.'s best interest is like the argument Carrie made on the lack of adoptability evidence of J.F. We affirm for the same reasons we gave earlier in the opinion. The circuit court heard the evidence of adoptability, the evidence that J.F. and K.F. would likely not be together, the evidence J.F. has significant behavioral and mental-health issues, the evidence of the parents' major drug problems and instability, and weighed the evidence in favor of termination. We cannot say that the circuit court clearly erred in deciding that terminating Michael's rights was in J.F.'s best interest.
Affirmed.
Gruber, C.J., and Virden, J., agree. | [
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Karen R. Baker, Associate Justice
Randy Zook, petitioner, challenges the sufficiency of a statewide-initiative petition. Respondent, the Honorable Mark Martin, Arkansas Secretary of State, certified the initiative entitled "An Act to Increase the Arkansas Minimum Wage Act," also known as "Issue No. 5," which is on the November 6, 2018 ballot. The proposed Act is sponsored by intervenor, Kristin Foster, Individually and on behalf of Arkansans for A Fair Wage ("sponsor-intervenor").
Because we do not find merit in Zook's claims, we deny the petition.
Article 5, § 1 of the Arkansas Constitution governs both statewide and local initiatives and referendums. Jurisdiction to review the sufficiency of statewide initiative petitions is conferred upon this court by way of Amendment 7 to the Arkansas Constitution. See Ward v. Priest , 350 Ark. 345, 86 S.W.3d 884 (2002). Amendment 7 states that "[t]he sufficiency of all state-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such causes." Ark. Const. art. 5, § 1, amended by Ark. Const. amend. 7. Following certification by the Secretary of State, Amendment 7 clearly confers original and exclusive jurisdiction upon this court to review the Secretary of State's decision as to the sufficiency of the petition. See Ward , 350 Ark. 345, 86 S.W.3d 884 ; see also Stephens v. Martin , 2014 Ark. 442, at 6, 491 S.W.3d 451, 454.
The relevant history of this matter is as follows. On July 6, 2018, the sponsor-intervenor initially submitted 69,413 signatures to Martin. Martin performed an initial prima facie review and validated 68,861 signatures. On July 30, 2018, Martin notified the sponsor-intervenor that 52,124 signatures submitted were valid, and pursuant to article 5 section 1 of the Arkansas Constitution, if a petition contains 75 percent of the necessary valid signatures to be certified on the ballot, the petition qualifies for a thirty-day cure period. Martin informed the sponsor-intervenor that she had earned the thirty-day cure period to submit additional signatures. On August 3, 2018, the sponsor-intervenor submitted her cure signatures for a total of 113,160 signatures, and 85,526 were valid signatures. On August 16, 2018, Martin certified the petition as sufficient for inclusion on the 2018 general-election ballot.
On September 4, 2018, Zook filed his petition with this court. In challenging the sufficiency of the initiative petition, Zook contends that the sponsor-intervenor did not submit an adequate number of signatures and the petition should not have not qualified for the cure. Zook contends that Martin improperly counted invalid petitions and signatures that qualified the sponsor-intervenor's petition for a cure and ultimately certified Issue No. 5 for the November 6, 2018 general election ballot. Accordingly, Zook contends that because the petitions submitted to Martin failed to contain the 75 percent of the number of valid signatures needed in the initial filing and she was not entitled to the cure period and, therefore, signatures obtained after July 6, 2018 should not have been counted.
On September 6, 2018, we appointed the Honorable Sam Bird as special master in this matter. The special master held a hearing on September 17-19, 2018, at which he heard testimony, heard the arguments of counsel, and received evidence.
On September 24, 2018, the special master entered his findings that the sponsor-intervenor's petition had sufficient signatures to qualify for a cure period and exceeded the minimum number of signatures (67,887) required to qualify for placement on the November 6, 2018 ballot. The parties have now filed their respective briefs in this matter. We deny the petition.
I. Standard of Review
Under our standard of review, we will accept the special master's findings of fact unless they are clearly erroneous. See Roberts v. Priest , 334 Ark. 503, 975 S.W.2d 850 (1998). A finding of fact is clearly erroneous, even if there is evidence to support it, when, based on the entire evidence, the court is left with the definite and firm conviction that the master has made a mistake. Id.
On review of this challenge, we are tasked with interpreting article 5, section 1 --including amendment 93 of 2014-which amended article 5, section 1. "In interpreting the constitution on appeal, our task is to read the law as it is written and interpret it in accordance with established principles of constitutional construction. First Nat'l Bank of DeWitt v. Cruthis , 360 Ark. 528, 203 S.W.3d 88 (2005). It is this court's responsibility to decide what a constitutional provision means, and we will review a lower court's construction de novo. Id. Language of a constitutional provision that is plain and unambiguous must be given its obvious and common meaning. Id. Neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision. Id. "
Proctor v. Daniels , 2010 Ark. 206, at 5-6, 392 S.W.3d 360, 363.
II. Thirty-Day Cure Period and Verification
With these standards identified, we turn to the merits of Zook's petition. We begin with article 5 section 1, which provides, "The first power reserved by the people is the initiative. Eight per cent of the legal voters may propose any law and ten per cent may propose a constitutional amendment by initiative petition and every such petition shall include the full text of the measure so proposed." Ark. Const. art. 5, § 1. Amendment 7 amended article 5, section 1 of the Arkansas Constitution and is commonly referred to as the "Initiative and Referendum Amendment." Amendment 7 must be liberally construed in order to effectuate its purposes and only substantial compliance with the amendment is required. Kyzar v. City of W. Memphis , 360 Ark. 454, 459, 201 S.W.3d 923, 927-28 (2005) ; Porter v. McCuen , 310 Ark. 674, 839 S.W.2d 521 (1992).
Next, we review additional language in article 5, section 1, "The Petition," which provides:
Sufficiency . The sufficiency of all state-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such causes.
....
Amendment of Petition . (a)(1) If the Secretary of State, county clerk or city clerk, as the case may be, shall decide any petition to be insufficient, he or she shall without delay notify the sponsors of such petition, and permit at least thirty (30) days from the date of such notification, in the instance of a state-wide petition, or ten (10) days in the instance of a municipal or county petition, for correction or amendment.
(2) For a state-wide petition, correction or amendment of an insufficient petition shall be permitted only if the petition contains valid signatures of legal voters equal to:
(A) At least seventy-five percent (75%) of the number of state-wide signatures of legal voters required....
Ark. Const. art. 5, § (a)(1), (a)(2)(A) (Supp. 2017).
We now turn to Zook's petition. The crux of Zook's argument is that the sponsor-intervenor's petition should not have qualified for the thirty-day cure, any signatures submitted thereafter should not have been counted, and Issue No. 5 should not be on the ballot. The sponsor-intervenor contends that she presented a prima facie case of the requisite number of signatures of legal voters to qualify her petition for the cure. Here, to qualify her petition for a thirty-day cure period, the sponsor-intervenor must have presented Martin with a petition that contains the requisite number of signatures of legal voters-67, 887 signatures upon prima facie review and 50,915 signatures to qualify for the thirty-day cure.
In Stephens v. Martin , Stephens argued that the petition in that case was not prima facie valid when it was submitted because it relied on petition parts with forged notary signatures to meet the initial-count signature threshold and therefore, the sponsor was not entitled to a 30-day cure period. We disagreed with Stephens and held that fraud was not an appropriate consideration for the initial count, and the sponsor was entitled to the thirty-day cure period. We recounted our history regarding amendment 7 and challenges to initial counts and cure periods in initiated petitions and referendums:
This court has previously considered the propriety of the Secretary of State's determination relating to the thirty-day cure period under Amendment 7. See, e.g. , Arkansas Hotels & Entm't, Inc. v. Martin , 2012 Ark. 335, 423 S.W.3d 49 (original action seeking a writ of mandamus to the Secretary of State to accept the petition); Ellis v. Hall , 219 Ark. 869, 245 S.W.2d 223 (1952) (per curiam) (interim opinion in an original action); Dixon v. Hall , 210 Ark. 891, 198 S.W.2d 1002 (1946) (original action seeking to enjoin the Secretary of State from accepting additional signatures). In Dixon , this court held that it was intended that a petition be filed within the time fixed by Amendment 7. Further, "[t]o be a petition, it must prima facie, contain at the time of filing, the required number of signatures." 210 Ark. at 893, 198 S.W.2d at 1003. The inverse of this is that the complete failure to obtain the requisite number of signatures results in the proposed measure failing for want of initiation. See id.
Stephens , 2014 Ark. 442, at 8-9, 491 S.W.3d at 455-56.
We held that Amendment 7 states that
"If the petition is found to be insufficient, time must be allowed for correction or amendment." Ellis , 219 Ark. at 871, 245 S.W.2d at 224 (emphasis in original) (quoting Ark. Const. art. 5, § 1, amended by Ark. Const. amend. 7 ). To qualify for this additional time, we have held that "the petition must first, on its face, contain a sufficient number of signatures pursuant to both the state-wide and fifteen-county requirement, before the thirty-day provision to correct deficiencies applies." Arkansas Hotels , 2012 Ark. 335, at 10, 423 S.W.3d at 55.
....
We further observed that Amendment 7 permitted time for correction or amendment, such as an addition, if a petition was found to be insufficient following the initial submission of a sufficient number of signatures. See [ Ellis , 219 Ark. at 870, 245 S.W.2d at 224 ]. We concluded that the Secretary of State had found what was initially "a prima facie valid petition to be insufficient for want of qualified signers and allowed further time for amendment," a procedure "well within the intention of the constitution." Id. at 871, 245 S.W.2d at 224.
Stephens , 2014 Ark. 442, at 9, 10, 491 S.W.3d 451 at 457.
Here, as in Stephens , Zook cites cases addressing the final sufficiency regarding the validity of signatures. Further in support of this position, Zook asserts that " Stephens was decided before Act 1413 went into effect and before the passage of Amendment 93, both of which significantly changed the law governing initiatives and referenda." This argument is misplaced. First, Act 1413, Ark. Code Ann. §§ 7-9-101 et seq., specifically, the plain language of the pertinent parts of Ark. Code Ann. § 7-9-126 -currently in effect now and when Stephens was decided-is the same and has not altered our review or jurisdiction of review of the initial count. Second, as discussed above, to qualify for the cure period, pursuant to Amendment 93 of 2014, the sponsor-intervenor had to submit valid signatures of legal voters equal to at least 75 percent of the number of statewide signatures of legal voters required; and at least 75 percent of the required number of signatures of legal voters from each of at least fifteen counties of the state. See Ark. Const. art 5, section 1. Accordingly, our review jurisdiction and review of the initial count is for prima facie review for signatures of legal voters. With regard to our review of the initial count and cure qualification, we are not tasked with reviewing a challenge to the final sufficiency of the petition. Rather, we look to the accuracy of the cure. Here, Zook does not challenge the validity of the signatures of legal voters. See Ark. Const. art. 5, § (a)(1), (a)(2)(A) (Supp. 2017).
As we explained in Stephens , " Ellis , Dixon , and Arkansas Hotels make clear, our only concern when examining the propriety of the Secretary of State's decision to grant or not grant the cure period is whether, on the face of the petition, the signatures were of a sufficient number. That inquiry is a simple one, and it is in keeping with the object and purpose of article 5, section 1, as amended by Amendment 7, which was to 'increase the sense of responsibility that the lawmaking power should feel to the people by establishing a power to initiate proper, and to reject improper, legislation.' Leigh v. Hall , 232 Ark. 558, 566, 339 S.W.2d 104, 109 (1960) (quoting Ferrill v. Keel , 105 Ark. 380, 385, 151 S.W. 269, 272 (1912) )." Stephens , 2014 Ark. 442, at 12, 491 S.W.3d 451, 457. Here, based on the record and the requirements of article 5, section 1, including the additional language from amendment 93 of 2014, the sponsor-intervenor's petition, on its face, contained the requisite signatures of a sufficient number and is therefore entitled to the thirty-day cure period.
Because we conclude that Zook's claims are without merit, we deny his petition. The mandate shall issue immediately.
Petition denied.
Wood and Womack, JJ., concur.
Although I agree the petition should be denied, I disagree with the majority's reliance on Stephens v. Martin , 2014 Ark. 442, 491 S.W.3d 451. We are not limited, as the majority writes, to a review of "whether, on the face of the petition, the signatures were of a sufficient number." quoting Stephens , 2014 Ark. 442, at 11, 491 S.W.3d at 457. In Stephens , this court interpreted a prior version of article 5 section 1 of the Arkansas Constitution. However, amendment 93 revised article 5, section 1, and those revisions, particularly those to the "Amendment of Petition" section, opened the door for this court to consider issues other than simply the sufficiency of the number of signatures. Article 5, section 1 now reads that "correction or amendment of an insufficient petition shall be permitted only if the petition contains valid signatures of legal voters ...." (Emphasis added.) Consequently, our constitution now provides that a cure is available, not just based on a sufficient number of signatures, but on "valid signatures of legal voters." Id. Therefore, the majority's continued reliance on Stephens 's limited review of only the number of signatures is erroneous.
As this court wisely explained in Sturdy v. Hall , 201 Ark. 38, 143 S.W.2d 547 (1940), we must be careful in our interpretation of the constitutional provisions that vest powers in the public. Article 5, section 1 confers the ability to assemble the voting public into a general assembly or to call a constitutional convention in the hands of relatively few. Id. The last census reflected the population of Arkansas at approximately 3 million. Currently, 84,859 registered voters, or 2.8 percent of our population, may submit a constitutional amendment to the people and 67,887, or 2.2 percent of our population, may submit an initiated act. "The law must, therefore, be, and is, that if a power so great may be exercised by a number so small, substantial compliance with the provisions of the constitution conferring these powers should be required." Id. We therefore should not simply rely on old precedent that relies on prior versions of our constitution to limit our review of matters this important.
Nevertheless, I do not think that the constitution in its current form allows us to reach the petitioner's argument and decide whether the canvassers complied with residency requirements, notary issues, and other issues beyond the validity of the voters' signatures and their numeric sufficiency, for purposes of a cure. Therefore, I join in denying the petition.
Womack, J., joins.
The parties agree that 75 percent of the 67,887 signatures amounts to 50,915 valid signatures.
Even though we recognize that the law in 2014 and now are the same, we do note that in Stephens , 2014 Ark. 442, at 3, 491 S.W.3d 451, 453 n.3, we did not address the viability of Ark. Code Ann. § 7-9-126. We explained,
Although the Arkansas Code contains a statute outlining which petition parts and signatures should be counted for purposes of the Secretary of State's initial count, the Secretary of State, in a separate case, was enjoined by judgment of the Pulaski County Circuit Court from applying its provisions. See Spencer v. Martin , No. 60CV-13-4020 (Apr. 2, 2014) (judgment declaring certain provisions of Act 1413 of 2013 unconstitutional and permanently enjoining the Secretary of State from enforcing those provisions, including Ark. Code Ann. § 7-9-126 (Supp. 2013) ). At the time of the initial count in this case, the Secretary of State was operating under this injunction and was precluded from applying the provisions of section 7-9-126. We therefore offer no opinion on that statute's viability under the constitution or this court's case law.
Amendment 93 was approved at the November 4, 2014 election. | [
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WAYMOND M. BROWN, Judge
Appellants ABF Freight System, Inc. (ABF), and ArcBest Corporation (ArcBest), employer and third-party administrator, respectively, appeal from the Arkansas Workers' Compensation Commission's (Commission) opinion affirming and adopting the administrative law judge's (ALJ) opinion finding ABF responsible for medical care appellee Byron Dugger received in 2015, following his 2004 compensable injury. The appellants' sole argument on appeal is that the Commission erred in awarding appellee his expenses for medical treatment that was not authorized because appellee failed to meet the mandatory preauthorization requirement of Commission Rule 30. We reverse.
Appellee suffered a compensable injury to his back on June 28, 2004. He was treated by Dr. John Wilson, whose treatment included surgery. Appellee reached maximum medical improvement on February 16, 2005, though he remained under Dr. Wilson's care. A permanent total disability finding was accepted, for which appellee receives permanent indemnity benefits. The costs of appellee's medical care through the surgery was paid for by appellants.
In 2015, appellee contacted Dr. Wilson when he again began to experience back pain. Dr. Wilson advised appellee that he had retired, referring appellee to his former partner, Dr. Kathryn McCarthy. Dr. McCarthy subsequently took over appellee's treatment, performing surgery on appellee on April 13, 2015. Appellee's medical bills arising from the treatment were paid by Medicare. ArcBest was notified by letter from the Centers for Medicare and Medicaid Services (CMMS) on April 13, 2017, of CMMS's belief that ArcBest owed it $ 21,332.86 for conditional payments it made on appellee's behalf for which ArcBest had "primary payment responsibility[.]" CMMS notified appellee, by letter dated April 20, 2017, of its attempt to recover said conditional payments from ArcBest, attaching a copy of its April 13, 2017 letter to ArcBest thereto. Appellee was advised that he need not take any action at that time. At some point, appellants contested the payments and appellee obtained an attorney, though neither date is clear from the record.
According to the January 10, 2018 prehearing order, the issues to be adjudicated were whether appellee received a valid referral from Dr. Wilson to Dr. McCarthy and whether the treatment appellee received from Dr. McCarthy was "the result of a valid referral, was authorized, and was reasonably necessary in relation to [appellee's] compensable injury." That an employee/employer relationship existed at the time of injury; that appellee sustained a compensable lumbar injury on June 28, 2004; that appellee's healing period ended on or about February 16, 2005; and that appellee was permanently and totally disabled and presently receiving permanent indemnity benefits from ArcBest was stipulated to.
A hearing was held on February 28, 2018. Appellee, who was sixty-nine years old at the time of the hearing, testified that he was treated by Dr. Wilson who performed an L4-5 decompression surgery and an L5-S1 fusion surgery. Dr. Wilson told appellee the "surgery would last 10-15 years if [appellee] took real good care of [his] back, so [he] tried to follow those instructions." He saw Dr. McCarthy for the first time in March 2015. He had been referred to her by Dr. Wilson after he informed appellee that he had retired. Appellee denied that he had hurt his back in the interim between his surgery by Dr. Wilson and his referral to Dr. McCarthy.
Appellee gave Dr. McCarthy his insurance information-Medicare and Physician's Mutual-and advised that he had "had two prior surgeries and [he] worked for ABF" when asked how he hurt his back. When asked if ABF had workers' compensation insurance, he said yes. Dr. McCarthy later performed an L4-5 fusion surgery in April 2015.
When appellee "realized [he] needed help, [he] needed a doctor," he contacted Dr. Wilson. He "did not feel like" he needed to get a change of physician "because [he] had communicated with Dr. Wilson and gotten a referral[.]" It had been "quite a while" since appellee last saw Dr. McCarthy as he "[felt] like [he had] recovered from the surgery" though he "still had ongoing problems with [his] back." He manages said unidentified problems with over-the-counter medications.
Appellee had not spoken with anyone at ABF since 2005 and went "many years" without communicating to Dr. Wilson "because [he] didn't need anything." Furthermore, "[s]ince the beginning, first injury, [he had] never contacted ABF when [he] needed a doctor." Appellee had not contacted ABF in 2015 when he contacted Dr. Wilson. Neither he nor his attorney had asked ABF or the Commission to change physicians from Dr. Wilson to Dr. McCarthy; "he didn't know [he] had to." "No one ... contacted [appellee] in the last couple of years and asked [him] to pay anything over and above what was already paid in this case." His bills had either been paid by Medicare or Physician's Mutual. He had received a letter from CMMS regarding the 2015 bills and was concerned that "at some point in the future, [he] could be contacted by Medicare with a request to reimburse it for payments made."
Travis Sharp, a "work comp examiner" for ArcBest, testified that he was not contacted by anyone with any medical provider-including Dr. McCarthy or St. Vincent Infirmary-requesting authorization for treatment in 2015. He agreed that a bill would not be sent to him until after treatment had been performed. He admitted that ArcBest has "a diary system" for purposes of reviewing a claimant's files and that he did not know the frequency with which a file was reviewed. Noting that another person was assigned to appellee's claim, whom he did not recall if she was "disengaged from the file at some point in time" -which he stated "could be possible ... to happen on occasion"-he stated that he did not know the specific date on which appellee's claim was last reviewed before 2015. He did not know whether the file was reviewed in 2015 before appellee had his surgery.
Sharp went on to testify that appellee's file "could have been reviewed in preparation for this hearing" and that he "would have been the person conducting those reviews" and that he "would've reviewed [appellee's] file before March 2015" but he [could not] say when that review occurred without his notes." Said review would have included a determination of whether action needed to be taken. He "[doesn't] search out medical records" and "wasn't searching out medical records for [appellee] because [he] had no indication that he was treating." Having taken over the file in 2012, he did not know if, between 2004 and 2012, someone had contacted Dr. Wilson's office to determine whether additional medical records had been generated, but he "had no reason to believe" that someone had done so. He admitted that it was "a possibility that if [he] had contacted Dr. Wilson's office, [he] may have found out that, in fact, he was retiring and had had [sic] referred [appellee] to be seen by Dr. McCarthy." He further admitted that they "might have contacted Dr. McCarthy to find out whether or not she was treating" appellee if they had been informed that appellee's treatment was related to the workers' compensation claim. They have "a claim file that [appellee] signed" and they "used that authorization to obtain medical records."
The ALJ filed his opinion on April 16, 2018. Therein, he noted that "none of the medical records in either parties' exhibits contain the precise history of [appellee's] 2004 compensable injury." He made the following findings of fact and conclusions of law:
1. [Appellee] received a valid referral from Dr. John L. Wilson to Dr. Kathryn McCarthy.
2. The treatment received by [appellee] to date from Dr. Kathryn McCarthy, and other providers or entities associated with such treatment, was the result of a valid referral and was reasonably necessary in relation to [appellee's] compensable injury of June 28, 2004.
3. Rule 099.30 of the Arkansas Workers' Compensation Commission does not preclude [ABF's] responsibility for reasonably necessary medical care related to [appellee's] compensable injury of June 28, 2004.
4. The change of physician rules set forth in Ark. Code Ann. § 11-9-514 do not apply to this matter.
5. To the extent that the Centers for Medicare & Medicaid Services may seek recovery or conditional payments in the future for reasonably necessary medical care related to [appellee's] compensable injury of June 28, 2004, [ABF] remains responsible for payment such subject to the fee schedule set forth in Rule 099.30 of the Arkansas Workers' Compensation Commission.
The ALJ stated that "[w]hile [he] did not regard [appellee's] testimony as uncontroverted, after observing his demeanor and the overall quality of his testimony, [he did] specifically find that [appellee] was a credible witness." The ALJ went on to state:
It is also noted that the submitted exhibits do not appear to contain an actual document that reflects a referral from Dr. Wilson to Dr. McCarthy. However, [appellee] has credibly testified that Dr. Wilson did, in fact, direct or refer him to Dr. McCarthy, and that he informed Dr. McCarthy's staff of his original history. Thereafter, Dr. McCarthy frequently copied Dr. Wilson on many of [appellee's] records that she prepared, which lends credence to [appellee's] testimony and understanding that he had been referred to her by Dr. Wilson. Based on these factors, I cannot conclude or find that [appellee] is accountable for the manner in which Dr. McCarthy's office thereafter pursued reimbursement or authorization. I do find, however, based on these same factors, that [appellee] received a valid referral from Dr. Wilson to Dr. McCarthy.
It is further noted that the record contains the front page of Commission Form AR-N, apparently signed by [appellee] on June 28, 2004, nearly 14 years prior to the hearing on this matter. The language preceding [appellee's] signature reflects, in pertinent part, that "My signature below also indicates that I have been provided with my rights regarding change-of-physician. (See additional information of back side of form)" (RX 3 at 1, emphasis added).
The "back side" of Form AR-N was not included in the record, and no testimony was elicited from [appellee] or Mr. Sharp to confirm whether the former had actually been provided with notice of his rights pertaining to a change of physician. As reflected above, [appellee] credibly testified that he was unaware of the need to request a change of physician. Consequently, absent proof that [appellee] was properly furnished with notice of the change of physician rules, or had any understanding of such, I find that the change of physician rules do not apply to this matter, pursuant to Ark. Code Ann. § 11-9-514(c)(2), and that nether Ark. Code Ann. §§ 11-9-514(b) or (c)(3) operate to preclude [ABF's] ongoing responsibility for reasonably necessary and related care.
Appellants appealed to the Commission.
In the Commission's September 5, 2018 opinion, it affirmed and adopted the ALJ's opinion. This timely appeal followed.
Under Arkansas law, the Commission is permitted to adopt the ALJ's opinion. In so doing, the Commission makes the ALJ's findings and conclusions the findings and conclusions of the Commission. Therefore, for purposes of our review, we consider both the ALJ's opinion and the Commission's majority opinion. With regard to our standard of review, this court has stated:
When reviewing a decision of the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; even if a preponderance of the evidence might indicate a contrary result, if reasonable minds could reach the Commission's conclusion, we must affirm its decision. The Commission is required to weigh the evidence impartially without giving the benefit of the doubt to any party.[ ]
When reviewing the Commission's interpretation and application of its rules, we give the Commission's interpretation great weight; however, if an administrative agency's interpretation of its own rules is irreconcilably contrary to the plain meaning of the regulation itself, it may be rejected by the courts. An administrative agency's interpretation of a statute or its own rules will not be overturned unless it is clearly wrong.
The appellants' sole argument on appeal is that the commission erred in awarding appellee his expenses for medical treatment that was not authorized because the preauthorization requirement of Rule 30 is mandatory. The entirety of appellants' argument can be summarized as the plain meaning of "required[,]" as used in Rule 30, means that compliance with the rule is not discretionary and payment cannot be required when a claimant is not compliant.
Rule 099.30 (Rule 30) "[e]stablishes procedures for preauthorization of nonemergency hospitalizations, transfers between facilities, and outpatient services expected to exceed $ 1,000.00 in billed charges for a single date of service by a provider." It goes on to state "[p]reauthorization is required for all nonemergency hospitalizations, transfers between facilities, and outpatient services expected to exceed $ 1,000.00 in billed charges for a single date of service by a provider."
In Burlington Industries v. Pickett , our supreme court held that "there is nothing in Rule 30 which implies its requirements are discretionary." Rule 30 contemplates carriers having medical bills submitted to them according to certain guidelines which would enable them to verify the merit and accuracy of claims. The plain meaning of Rule 30 does not establish a duty on the part of a carrier to pay until claims meeting its requirements are properly submitted.
While noting that a different section is at issue in Burlington -section (I)(F)-our supreme court's broad language states that the entire rule, unless expressly stated otherwise, is mandatory. We have no ability to overturn Burlington ; therefore, preauthorization is yet another requirement placed on the claimant prior to imposition of a requirement to pay on the carrier.
Reversed.
Gladwin and Murphy, JJ., agree.
Sharp did not define what "disengaged" meant.
Stoker v. Thomas Randal Fowler, Inc. , 2017 Ark. App. 594, at 6, 533 S.W.3d 596, 600 (citing SSI, Inc. v. Cates , 2009 Ark. App. 763, 350 S.W.3d 421 ).
Id.
Dick v. Conley Transp. , 2009 Ark. App. 789, at 4-5, 358 S.W.3d 904, 907 (citing Jones v. Wal-Mart Stores, Inc. , 100 Ark. App. 17, 262 S.W.3d 630 (2007) ).
Cyphers v. United Parcel Serv. , 68 Ark. App. 62, 68, 3 S.W.3d 698, 702 (1999) (citing Burlington Indus. v. Pickett , 336 Ark. 515, 988 S.W.2d 3 (1999) ).
Id. (citing Ark. Dep't Human Servs. v. Hillsboro Manor Nursing Home, Inc. , 304 Ark. 476, 803 S.W.2d 891 (1991) ).
099-00-001 Ark. Code R. 099.30(I)(A)(1)(s) (Weil 2010).
Id. 099.30(I)(S).
336 Ark. 515, 520, 988 S.W.2d 3, 6 (1999).
Id.
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RITA W. GRUBER, Chief Judge
This is an appeal from an interlocutory order entered by the Pulaski County Circuit Court denying Mel Deshun Jones, Jr.'s, motions to transfer three cases to the juvenile division of circuit court. All three cases involved charges of theft of property, two of the three cases involved aggravated robbery, and one case involved robbery. At the time of the alleged offenses in each of the three cases, appellant was seventeen years old. He was eighteen years old when he filed the motions to transfer and the court entered its order denying the motions. Appellant argues on appeal that the circuit court's order denying his motions was clearly erroneous because it failed to give greater weight to one of his witnesses regarding his mental, physical, and social history. We find no clear error and affirm.
Under Arkansas law, a prosecuting attorney has discretion to charge a juvenile sixteen years of age or older in the criminal division of circuit court if the juvenile has engaged in conduct that, if committed by an adult, would be a felony. Ark. Code Ann. § 9-27-318(c)(1) (Repl. 2015). A defendant charged in the criminal division may file a motion to transfer to the juvenile division, and the court in which the criminal charges have been filed must conduct a hearing to determine whether to transfer the case. Ark. Code Ann. § 9-27-318(e). The moving party bears the burden of proving that the case should be transferred to the juvenile division of circuit court. Austin v. State , 2017 Ark. App. 114, at 3, 515 S.W.3d 633, 635. The circuit court shall order the case transferred to another division only upon a finding by clear and convincing evidence that the case should be transferred. Ark. Code Ann. § 9-27-318(h)(2). Clear and convincing evidence is that degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. Vasquez-Sanchez v. State , 2017 Ark. App. 673, at 8, 536 S.W.3d 628, 633. We will not reverse a circuit court's determination of whether to transfer a case unless the decision is clearly erroneous. Id.
At a juvenile-transfer hearing, the circuit court is required to consider all the following factors:
(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). Pursuant to Arkansas Code Annotated section 9-27-318(h)(1), a circuit court shall make written findings on all the factors set forth above. 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, at 3, 487 S.W.3d 374, 377.
Although appellant challenges only one of the factors found by the court-factor (9) regarding information relating to his mental, physical, educational, and social history-we turn to all the evidence presented at the court's hearing on the motions to transfer. Two detectives testified about the facts in two of the cases. Investigator Michael Bryant of the Pulaski County Sheriff's Office testified that one of the victims, Ramos Rodriguez, had met a woman, Tonishell Hamilton, on Facebook and had agreed to pick her up at the Chenal Ridge Apartments on July 18, 2017. When Rodriguez arrived at the apartment complex, he was approached by three black males who pulled him from his vehicle and beat him up. Investigator Bryant obtained warrants for two of the suspects, one of whom implicated appellant. Appellant later admitted his involvement, including taking the victim's car and driving off.
In another case, Det. Gary Jones of the North Little Rock Police Department testified that he was in charge of investigating an aggravated robbery that had occurred on August 10, 2017, in North Little Rock. The victim, Alejandro Morales, told officers that he was picking up Tonishell Hamilton, a woman he had met on Facebook, to bring her to his house. After he picked her up, he stopped his car to allow another female and a male to get into the back seat of his Jeep. He later identified the male as appellant. Mr. Morales told Detective Jones that a different male walked up when he picked up the others but did not get into the Jeep. After driving to a convenience store at which appellant bought a pack of cigarettes, Mr. Morales proceeded to another address where appellant put a knife to Mr. Morales's neck; got him out of the vehicle; stole his wallet, iPhone, and Jeep; and drove off in the Jeep with Tonishell and the other female. When confronted by Detective Jones later, appellant admitted being in the Jeep and buying cigarettes at the convenience store, but he denied holding a knife to Mr. Morales's neck or taking the Jeep. He said that he saw a guy named "Jeremy" drive by in the Jeep several minutes after appellant had been dropped off.
Appellant's father, Mel Jones, Sr., testified that he was in high school when appellant was born and that appellant's grandmother had raised appellant. He testified that appellant's mother had been incarcerated for most of appellant's life and had been murdered by her uncle on Easter several years earlier. He said that appellant had never been arrested before the incidents in these cases and had no gang involvement that he was aware of. He said that his mother's murder hit appellant "real hard" and he had gone to counseling to work through it. Mr. Jones said that he wanted appellant to finish high school, and he would make sure appellant would keep any counseling appointments set for him.
Emily Whitley, a clinical therapist with Youth Home, testified that appellant had been referred to her by his primary-care physician at Arkansas Children's Hospital for trauma-focused therapy after his mother died in March 2016. Appellant had been diagnosed with posttraumatic stress disorder and dysregulated-mood disruptive disorder. Ms. Whitley testified that she treated appellant from August through November 2016 and then again in June 2017 and that he was on medication during the time she saw him. She testified that appellant had completed half of the treatment and could benefit from more therapy if he was willing to continue. She said he was "immature" and that trauma affects the frontal lobe of the brain, which she testified is not developed in males until the age of twenty-six. During her testimony, the court asked her whether continued therapy would need to be in the juvenile system or in the adult system. She said she thought it would be better in the juvenile system because for therapy to be most effective, the environment matters. Upon specific questioning by the court, she said she "was not sure" why it would be better for appellant to be in the juvenile system rather than in the adult system, but she thought it was better because of the services he might receive in the juvenile system. No one testified about what services were offered in either the juvenile or the adult system.
Appellant's grandmother, Wanda Jones, testified that she adopted appellant when he was one year old. She said that his mother "had a lot of problems" with the law and was often incarcerated and unable to visit appellant. She testified that appellant had been no trouble, had made good grades, and had never been arrested before his mother was murdered. Ms. Jones said that everything "went bad" after the mother's death. She said that she had gone with appellant to his therapy sessions after his mother died. She also said that at the time of the incidents in July and August 2017, appellant had been living with his cousin. Finally, she thought appellant needed to mature some more.
The court denied appellant's motions to transfer his three cases to the juvenile division of circuit court, entered an order stating that it had considered all the factors listed in Ark. Code Ann. § 9-27-318, and made the following written findings:
1. The underlying offenses are serious offenses. 60CR-17-3503: Aggravated Robbery (FY), Theft of Property (FB); 60CR-17-3563: Aggravated Robbery (FY), Theft of Property (FB); and 60CR-17-4233: Robbery (FB), Theft of Property (FB).
2. The alleged offenses were committed in a violent manner.
3. The alleged offenses were committed against a person.
4. The Defendant had no criminal record as a juvenile.
5. The Defendant is not very mature.
6. While there are services available to the Defendant in juvenile court, those services are limited now that the Defendant is 18 years old.
7. The Defendant committed these offenses as part of a group.
8. The Defendant could benefit from continued therapy.
9. Evidence relating to the juvenile's mental, physical, educational, and social history was considered by the Court.
On appeal, appellant argues that the circuit court clearly erred in failing to give greater weight to the testimony from Ms. Whitley concerning his mental, physical, and social history. He also points to the court's written finding that "[e]vidence relating to the juvenile's mental, physical, educational, and social history was considered by the Court" and argues that these statements prove, at most, that the court considered Ms. Whitley's testimony but claims that they do not constitute findings.
We recognize that appellant's point on appeal is that the circuit court clearly erred in denying his motion to transfer because it failed to give greater weight to Ms. Whitley's testimony. However, we note that, to the extent he is arguing that the court did not make a written finding complying with the statute, this argument is not preserved for appeal. J.A.C. v. State , 2013 Ark. App. 513, 2013 WL 5272951 (affirming juvenile-transfer order because statutory-noncompliance argument was not raised below). We turn to appellant's argument that the court clearly erred and failed to give the proper weight to Ms. Whitley's testimony. First, the circuit court is not required to give equal weight to each of the factors but may use its discretion in the weight afforded to each factor. Vasquez-Sanchez , 2017 Ark. App. 673, at 11, 536 S.W.3d at 634 ; see also Magana-Galdamez v. State , 104 Ark. App. 280, 287, 291 S.W.3d 203, 208 (2009). Moreover, the circuit court did consider and make written findings on each factor. Indeed, it clearly considered Ms. Whitley's testimony and specifically found in paragraph 8 of its order that the defendant "could benefit from continued therapy." Finally, during counsel's examination of Ms. Whitley, the circuit court asked her specific questions about her opinion regarding the propriety of the juvenile versus the adult division of circuit court. At the end of the hearing, the circuit court made the following statement:
And I take very seriously the testimony from his therapist, that he could receive services, he should receive services in juvenile court, but I think had it not been for the three, had this maybe been one, the Court would have considered transferring to juvenile, EJJ, but I'm going to deny the motion.
The circuit court considered all of the evidence appellant introduced in support of his motion to transfer, including the testimony of Ms. Whitley; it simply weighed the evidence differently than appellant desired. Having reviewed the entire evidence, we cannot say with firm conviction that a mistake has been committed. Thus, we hold that the circuit court did not clearly err in denying the motion to transfer.
Affirmed.
Hixson and Brown, JJ., agree. | [
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WAYMOND M. BROWN, Judge
Appellant Dameion Williams appeals from the order of the Pope County Circuit Court denying his petition for Rule 37 postconviction relief. He contends that the circuit court erred in failing to hold an evidentiary hearing on his claims of ineffective assistance of counsel. We affirm.
Williams was convicted by a jury of aggravated robbery, attempted murder in the first degree, and battery in the first degree. He was sentenced to an aggregate term of 35 years' incarceration in the Arkansas Department of Correction. His conviction and sentence were affirmed by this court in Williams v. State , 2017 Ark. App. 198, 517 S.W.3d 446. Williams then filed a petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2017), raising claims of ineffective assistance of counsel. Without holding an evidentiary hearing, the circuit court entered an order with written findings denying his request for postconviction relief. Williams then appealed the circuit court's denial of his Rule 37 petition. Noting abstracting deficiencies and citing noncompliance with Arkansas Supreme Court Rule 4-2(a)(5), we ordered Williams to file a substituted abstract, brief, and addendum that complies with our rules.
Williams filed his new brief, correcting the deficiencies in the abstract as ordered. However, we note that Williams not only corrected his abstract but also made changes to the argument portion of his brief, adding a claim that his counsel was ineffective in regard to the cross-examination of the victim, Allicia Brown. We will not address the merits of this new claim for two reasons.
As an initial matter, Rule 37 provides that all grounds for postconviction relief must be asserted in the original petition. Ark. R. Crim. P. 37.2(b) ; Hayes v. State , 2011 Ark. 327, 383 S.W.3d 824. Because we do not consider issues that are raised for the first time on appeal, appellant's argument with respect to the cross-examination of the victim is not preserved for our review. See Rasul v. State , 2015 Ark. 118, 458 S.W.3d 722.
Secondly, we take the opportunity to note that the changes made to the argument section of Williams's substituted brief, in which he added an additional claim for relief, went beyond the scope of our rebriefing order. In Hall v. State , the State pointed out that the abstract section of Hall's brief was deficient. 324 Ark. 431, 921 S.W.2d 929 (per curiam). In response, Hall sought permission, which the court granted, to correct the abstract and file a substituted brief. Id. In his new brief, Hall not only corrected the abstract but rewrote the argument section, as well. Id. The State then moved to strike Hall's substituted brief, or alternatively, asked the court to consider only Hall's original brief. Id. The supreme court directed that Hall's appellate brief properly contained the substituted abstract and the original argument. Id. Despite the State's failure to move for such a remedy here, we hold that the same outcome is proper in the case at bar.
On appeal from a trial court's ruling on a petitioner's request for Rule 37 relief, this court will not reverse the trial court's decision granting or denying postconviction relief unless it is clearly erroneous. Hogan v. State , 2013 Ark. 223, 2013 WL 2295431. 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.
On appeal, Williams argues that the circuit court erred in not holding an evidentiary hearing on his ineffective-assistance-of-counsel claims. He specifically contends that his counsel was ineffective (1) for failing to adequately prepare for trial, (2) for failing to effectually cross-examine Detective Barker, (3) for failing to obtain a ruling on his proposed jury instruction, and (4) for submitting a subpar appellate brief to this court on direct appeal.
The benchmark for judging a claim of ineffective assistance of counsel must be "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Pursuant to Strickland , we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance must show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Williams v. State , 369 Ark. 104, 251 S.W.3d 290 (2007). A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel's performance fell below an objective standard of reasonableness. Abernathy v. State , 2012 Ark. 59, 386 S.W.3d 477 (per curiam). A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id.
Second, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Id. The petitioner must show there is a reasonable probability that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Howard v. State , 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. Additionally, conclusory statements that counsel was ineffective cannot be the basis of postconviction relief. Anderson v. State , 2011 Ark. 488, 385 S.W.3d 783.
For his first point on appeal, Williams argues that his trial counsel provided ineffective assistance because he was inadequately prepared for trial. Specifically, Williams asserts that counsel waited until the last minute to subpoena Zach Stokes, the co-defendant. Williams argues that he expected Stokes to exonerate him by testifying that while the victim identified Stokes as one of the robbers, Williams was not with him on the night in question.
To prevail on a claim that trial counsel was ineffective for failing to adequately investigate and prepare for trial, the petitioner must show how a more searching pretrial investigation or better preparation would have changed the results of the trial. Bond v. State , 2013 Ark. 298, 429 S.W.3d 185 (per curiam). The petitioner must delineate the actual prejudice that arose from the alleged failure to investigate and prepare for trial and demonstrate a reasonable probability that additional preparation and the information that would have been discovered with further investigation could have changed the outcome of the trial. Id. A petitioner cannot succeed on an ineffective assistance claim by merely alleging that counsel was not prepared. Id.
Any alleged lack of preparation on counsel's part had no effect on whether or not Stokes testified. Stokes invoked his Fifth Amendment right against self-incrimination. A co-defendant cannot be forced to testify once he has asserted his Fifth Amendment privilege. Hamm v. State , 301 Ark. 154, 782 S.W.2d 577 (1990). Therefore, Williams cannot establish that he suffered any actual prejudice or in what manner any additional preparation on counsel's part could have changed the outcome of the trial. We affirm on this point.
Williams also argues that his trial counsel provided ineffective assistance during the cross-examination of Detective Barker. He specifically alleges that he was prejudiced by counsel's failure to elicit testimony from Detective Barker regarding the investigation of other possible suspects. Zinger v. State provides that evidence of a third party's culpability requires direct or circumstantial evidence linking the third person to the crime. 313 Ark. 70, 852 S.W.2d 320 (1993). Evidence which only creates an inference or conjecture as to another's guilt is inadmissible. Id. At trial, counsel attempted to cross-examine Detective Barker regarding other suspects that were interviewed. However, the State objected pursuant to Zinger , and the trial court sustained the objection. Williams has provided no persuasive argument as to how counsel could have overcome the State's objection under Zinger . We affirm on this point.
Next, Williams argues that his counsel also provided ineffective assistance on appeal. He asserts that he was prejudiced by counsel's failure to cite legal authority on direct appeal to support his argument regarding codefendant Stokes's ability to testify despite the invocation of his Fifth Amendment privilege. The petitioner claiming that appellate counsel was ineffective must make a clear showing that counsel failed to raise some meritorious issue on appeal. Moore v. State , 2011 Ark. 269, 2011 WL 2412787 (per curiam). Here, Williams makes no specific argument as to the merit of the issue, stating only that it "could have made all the difference." Conclusory statements cannot be the basis for postconviction relief. Hogan v. State , 2013 Ark. 223, 2013 WL 2295431.
He also contends that his counsel was ineffective and not functioning as counsel guaranteed by the Sixth Amendment when he failed to obtain a ruling on a proposed jury instruction thereby removing the issue from the purview of the appellate court. Prior to trial, Williams requested a jury instruction allowing jurors to draw a negative inference from a missing surveillance video. The circuit court stated that it would "revisit [the issue] again but [it has] got to hear some proof." However, because Williams never raised the jury instruction issue again, the circuit court never ruled on it. An appellant must obtain a ruling on his or her argument to preserve the matter for appeal. Vaughn v. State , 2015 Ark. App. 136, 456 S.W.3d 767.
In order to prevail on an ineffective-assistance claim based on counsel's failure to preserve an issue for appeal, a petitioner is required to demonstrate that, had the issue been preserved, the appellate court would have reached a different decision. Strain v. State , 2012 Ark. 42, 394 S.W.3d 294. Here, Williams makes no such argument. He again merely states "this issue could have made all the difference in the results of the appeal." Williams has failed to meet his burden of demonstrating a meritorious argument.
Additionally, Williams's contention that the circuit court erred by denying his Rule 37 petition without holding an evidentiary hearing on his ineffective-assistance-of-counsel claims is without merit. Arkansas Rule of Criminal Procedure 37.3 requires an evidentiary hearing be held in a postconviction proceeding unless the petition, files, and records of the case conclusively show that the prisoner is entitled to no relief. England v. State , 2018 Ark. App. 137, 543 S.W.3d 553. If the petition and record conclusively show that the petitioner is not entitled to relief, the circuit court is required to make written findings to that effect, "specifying any parts of the files, or records that are relied upon to sustain the court's findings." Van Winkle v. State , 2016 Ark. 98, 486 S.W.3d 778. Here, upon review, we hold that the files and records of the case conclusively established that Williams was entitled to no relief, and the circuit court made the requisite findings.
For the reasons stated herein, we affirm the circuit court's denial of Williams's petition for postconviction relief.
Affirmed.
Gruber, C.J., and Hixson, J., agree. | [
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JOHN DAN KEMP, Chief Justice
The State brings this interlocutory appeal pursuant to Arkansas Rule of Appellate Procedure-Criminal 3 (2018) and contends that the circuit court erred in granting appellee David Reynolds's motion to suppress evidence seized from a search of his cell phone. For reversal, the State contends that the circuit court erred as a matter of law (1) in finding that there was no nexus between Reynolds's cell phone and the criminal activity alleged in the search warrant and (2) in concluding that the cell phone was beyond the scope of the warrant. We dismiss for lack of a proper State appeal.
I. Facts
The investigation of Reynolds began with a CyberTipline report submitted to the National Center for Missing and Exploited Children (NCMEC). NCMEC is a nonprofit organization that operates the CyberTipline, a website through which law enforcement, members of the public, and others report incidents of child pornography and child exploitation. Electronic-service providers that "obtain[ ] actual knowledge of any facts and circumstances from which there is an apparent violation" or a "planned or imminent" violation of statutes concerning child pornography are legally obligated to report such facts and circumstances to NCMEC. See 18 U.S.C. § 2258A(a). NCMEC must forward reports that it receives to an appropriate law enforcement agency. Id. § 2285A(c). When an electronic-service provider voluntarily reports an internet protocol (IP) address for the user or person being reported, NCMEC will "geographically resolve" the IP address via a publicly available online search.
On December 28, 2015, NCMEC received a tip from Twitter, a social-media platform. Twitter reported that devices associated with multiple IP addresses had accessed "sweetoothcandy3," a Twitter account believed to contain images and videos of child pornography. Using publicly available geolocation technology, NCMEC placed one of the IP addresses in Sherwood, Arkansas. NCMEC forwarded the tip and IP-address information to Arkansas law enforcement. Detective Frank Spence of the Sherwood Police Department subpoenaed Comcast, the internet-service provider for that IP address, and requested "information related to the subscriber ... assigned that IP address during the time in question." In response, Comcast disclosed that the IP address was assigned to David Reynolds at 2324 Miramonte Drive in Sherwood.
Spence prepared an affidavit for a search-and-seizure warrant recounting the information that he had received from NCMEC and Comcast. He stated that through his investigation, he learned that the IP address linked to Reynolds's residence had accessed "sweetoothcandy3," the Twitter account containing images of child pornography, forty-one times in December 2015. He also stated that on February 16, 2016, he received a cyber tip that a device associated with the same IP address had accessed a Twitter account tagged with the username "EthanluvsTS" and uploaded twenty images, "several of which depicted children engaging in sexual[ly] explicit conduct." Spence stated that he issued a subpoena to Comcast, and Comcast reported that the IP address was still registered to Reynolds at the Miramonte address. The affidavit stated that there was probable cause to believe that evidence of distributing, viewing, or possessing child pornography would be found on the premises of 2324 Miramonte Drive. According to the affidavit, the "premises" comprised a one-story single-family dwelling; surrounding grounds; outbuildings; and vehicles. Spence sought a warrant to search the premises and seize potential evidence, including computers, computer files, cameras, and mobile-communication devices with internet access.
The district court found probable cause and signed a warrant authorizing the search and seizure sought by Spence. On March 3, 2016, at 12:35 p.m., Spence, along with other Sherwood officers and investigators from the Arkansas Attorney General's office, executed the warrant. When officers first arrived at the residence, no one was home. A few minutes later, Reynolds arrived and drove into the garage where he was met by Spence and another officer. Spence testified at the suppression hearing that he approached Reynolds in the garage and advised him that he had a warrant to search the home and seize any digital devices. Spence asked Reynolds if he had a cell phone. Reynolds produced an iPhone, and Spence took it from him. Spence explained that the officers were there to execute the warrant and that Reynolds was not under arrest and was free to leave. Spence asked for the phone's passcode, and Reynolds declined to provide it. After some discussion with Spence, Reynolds unlocked the phone. Spence handed the phone to Chris Cone, a special agent with the attorney general's office. Cone used "Black Light" software to conduct a "logical acquisition" of the phone to extract data for a more detailed view. While Cone was extracting the data, Reynolds told Spence that he needed to pick up his son from school. Spence told Reynolds that he was free to leave at any time but that officers were "retaining custody" of the house until they completed their search. The search ended at 3:09 p.m. Spence testified that Cone's "cursory examination ... really didn't find any images to be alarmed about," so they returned the phone to Reynolds. Reynolds left and agreed to bring his son's cell phone to the police department for examination later that day.
After a subsequent, more thorough search of the data that was obtained from Reynolds's phone, as well as statements that he made to police, Reynolds was arrested and charged with thirty counts of possessing or viewing images depicting sexually explicit conduct involving a child. See Ark. Code Ann. § 5-27-602 (Repl. 2013). Thereafter, he filed a motion to suppress the evidence from the search and seizure of his cell phone. Reynolds contended that the evidence recovered from the search of his cell phone should be suppressed because (1) the search warrant was not supported by probable cause, (2) the search warrant was overly broad, and (3) the search of his cell phone exceeded the scope of the warrant. He filed a separate motion to suppress his statements to police.
A hearing on the motions was held on July 5, 2017. Spence and Cone testified about the application for and execution of the search warrant. The circuit court took the matter under advisement and allowed the parties to file posthearing briefs. Reynolds argued in his brief that the search warrant was not supported by probable cause because (1) the affidavit failed to establish a nexus between his cell phone and the crime and (2) Spence had failed to attach the images or describe them in the affidavit. He also argued that the warrant was overbroad and an unconstitutional "general warrant" because it failed to describe with particularity the place where the child pornography might be located within the electronic devices. Reynolds asserted that Cone's search of his cell phone exceeded the scope of the search warrant, which authorized only the seizure, not the search, of items described in the warrant. Finally, Reynolds contended that his statements to police should be suppressed as fruit of the poisonous tree.
The circuit court entered an order on September 18, 2017, granting Reynolds's motion to suppress the evidence from his cell phone. The circuit court ruled that the search warrant for the residence was supported by probable cause and rejected Reynolds's argument that the search warrant was overbroad. But the circuit court agreed with Reynolds that the search and seizure of his phone exceeded the scope of the search warrant, finding that there was no nexus between the criminal activities alleged in the search warrant and the cell phone that was improperly seized from Reynolds. The circuit court also granted Reynolds's motion to suppress statements he made to police, ruling that the statements were fruit of the poisonous tree. The State appeals.
II. Law and Analysis
The State contends that the circuit court's decision to suppress the evidence seized from Reynolds's cell phone was based on a "serious error of law." The State asserts that there was a nexus between Reynolds's cell phone and the criminal activity alleged in the search warrant and that the circuit court erred by concluding that the phone was beyond the scope of the warrant.
As a threshold matter, we must determine whether this is a proper State appeal. The State's ability to appeal is limited to the provisions in Rule 3 of the Arkansas Rules of Appellate Procedure-Criminal. E.g. , State v. S.L. , 2012 Ark. 73, 2012 WL 581690. Section (a) of the rule outlines the grounds for State interlocutory appeals in criminal cases. Although Rule 3(a)(1) allows the State to file an interlocutory appeal from a pretrial order granting a motion to suppress seized evidence, we will not consider the appeal unless "the correct and uniform administration of the criminal law" requires review by this court. Ark. R. App. P.-Crim. 3(d). The correct and uniform administration of the criminal law is at issue when the question presented is solely a question of law independent of the facts in the case appealed. See, e.g. , State v. S.G. , 373 Ark. 364, 284 S.W.3d 62 (2008). Consequently, we do not accept an appeal by the State when the circuit court's decision turns on facts unique to the case or involves a mixed question of law and fact. E.g. , State v. Crane , 2014 Ark. 443, 446 S.W.3d 182.
The State asserts that its appeal is permitted by Rule 3 because the issue presented is whether the circuit court erred in its interpretation of the law. According to the State, the "principal error" in this case was the circuit court's conclusion "that the appellee's cell phone automatically fell outside the search warrant-despite the fact that it was at his residence-because the cell phone was on the person of the appellee." The State argues that such a "blanket rule" is contrary to our case law.
The State mischaracterizes the circuit court's ruling. The circuit court did not rule that the cell phone "automatically fell outside the search warrant" because the cell phone was on Reynolds's person. Rather, the circuit court ruled that Reynolds's "arriving on the scene and letting [police] into the home did not automatically make a search of his person, and crucially, the cell phone on his person, subject to the search warrant of the premises." Thus, contrary to the State's assertion, the circuit court did not base its decision on a "blanket rule" requiring it to suppress evidence seized from the cell phone because it was on Reynolds's person. Rather, the circuit court relied on the specific language in the search warrant and the facts surrounding the execution of the warrant. This is demonstrated by the court's order granting the motion to suppress wherein the court explained the basis for its decision.
In its order, the circuit court stated, "Here, we are dealing with a search warrant alleging that criminal activity was occurring at the residence where the IP was registered-this is not an arrest warrant alleging that Reynolds was a suspect in a criminal investigation." The circuit court noted Spence's testimony at the hearing that Reynolds was not a suspect when the search warrant was executed, that he was not under arrest, and that the officers were there only to search the house. The circuit court rejected the State's argument that Reynolds voluntarily produced his cell phone and found that Reynolds unlocked his phone because Spence "threatened to get a judge to sign an order directing him to unlock it." The circuit court stated, "Though the warrant itself was valid, in executing the warrant the Detective overstepped his bounds and extended the search warrant into a personal search of the Defendant." The circuit court analyzed case law and recognized that in some cases, a warrant authorizing a search of the premises could extend to a search of the person. However, the circuit court found that under the circumstances in this case, the warrant did not authorize a search of the person.
In making this determination, the circuit court reviewed unique circumstances and decided mixed questions of law and fact; therefore, we conclude that the correct and uniform administration of the criminal law is not at issue in this case, and we dismiss the appeal. See, e.g. , State v. Sprenger , 2016 Ark. 177, 490 S.W.3d 314 (dismissing State appeal of an order suppressing evidence based on a defective affidavit for search warrant because the decision whether to issue warrant was highly fact-intensive); State v. Threadgill , 2011 Ark. 91, 382 S.W.3d 657 (concluding that the State's challenge of a circuit court's decision to invalidate a search warrant based on a lack of particularity involved facts unique to the case and did not involve the correct and uniform administration of the law); State v. Nichols , 364 Ark. 1, 216 S.W.3d 114 (2005) (dismissing appeal and noting that the State framed its argument in terms of whether the circuit court misinterpreted the law on exigent circumstances, but the resolution of the issue on appeal turned on the circuit court's consideration of the facts surrounding the officer's approach to the house).
Appeal dismissed.
Special Justices Hani W. Hashem and Chad W. Pekron dissent.
Wood and Womack, JJ., not participating.
Special Justice Hani W. Hashem, dissenting.
I respectfully dissent, as I believe the majority has failed to consider an important facet of the standard by which interlocutory appeals of suppression rulings are evaluated by this court. As a threshold matter, the court is required to determine whether or not the State's interlocutory appeal is proper, pursuant to Arkansas Rule of Appellate Procedure-Criminal 3. The court accepts appeals by the State when our holding would be important to the "correct and uniform administration of the criminal law." See , Id. I believe this is exactly such an appeal, as the relevant question-whether an item within the scope of a valid search warrant may be excluded simply because it was on the person of someone within the premises-presents an issue of first impression that will have widespread ramifications and be important to the correct and uniform administration of the criminal law.
As a matter of practice, this court has only taken appeals which are narrow in scope and involve the interpretation of law. See, e.g. , State v. Griffin , 2017 Ark. 67, 513 S.W.3d 828 ; State v. Robinson , 2013 Ark. 425, 430 S.W.3d 105 ; and State v. Thompson , 2010 Ark. 294, 377 S.W.3d 207. This court also has a long-standing history of accepting appeals by the State when a holding would establish precedent that would be important to the correct and uniform administration of justice. State v. Griffin , 2017 Ark. 67, 513 S.W.3d 828 ; State v. Payton , 2015 Ark. 203, 462 S.W.3d 630 ; State v. Myers , 2012 Ark. 453, 2012 WL 6061932, 2012 Ark. LEXIS 486 ; and State v. Earl , 333 Ark. 489, 970 S.W.2d 789 (1998). When, as here, "[t]he material facts surrounding the execution of the warrant are not in dispute ... the question presented is purely a legal one and presents a proper issue for an appeal by the state." Robinson , 2013 Ark. 425, at 4, 430 S.W.3d at 108 (emphasis added).
The majority's decision relies upon a number of cases in which the appeal does not present an issue of interpretation of the criminal rules with widespread ramifications. In those cases, this court has held that it does not involve the correct and uniform administration of law and dismissed the appeal. Similarly, the majority relies upon cases in which a resolution of the issue on appeal turns on facts unique to the case or involves mixed questions of law and fact; because such cases do not require an interpretation of our criminal rules with widespread ramifications, they are not properly appealable by the State. Although the majority correctly cites these precedents, I do not believe they are applicable to the case at hand, because a resolution of the issue here requires no in-depth analysis of the facts, nor does it involve mixed questions of law and fact.
The relevant facts are uncontroverted and set forth in the trial court's pre-trial order of suppression. Law enforcement authorities obtained a broad, but unquestionably valid, warrant to search the Appellee's home for all digital devices, computers, and devices capable of wireless connectivity to the internet. When the authorities initially arrived at Appellee's home to execute the warrant, no one was there. As the officers were discussing how to proceed, the Appellee arrived on the scene and drove his vehicle into the garage, connected to the home. It is undisputed that the garage was a location encompassed within the scope of the warrant. One of the officers met Appellee in the garage as he exited his vehicle. The officer identified himself and explained that he had a warrant to search Appellee's home for the aforementioned devices. The officer asked Appellee if he had a cell phone. The Appellee responded positively and voluntarily reached in his pocket to produce an iPhone (a device that is capable of internet connectivity). The Officer asked for the phone and Appellee handed it to the Officer, without protest or struggle.
Later, upon examination, law enforcement authorities determined that the iPhone contained information showing that it had been utilized for purposes of connecting to the internet to view and upload child pornography. Upon a later questioning, Appellee, when confronted with this information, made certain potentially incriminating statements. Appellee was subsequently charged with thirty (30) counts of distribution, possession, or viewing of matter depicting sexually explicit conduct involving a child. In a pre-trial motion, Appellee sought to suppress the evidence found on the iPhone and his subsequent incriminating statements. The trial court in deciding to suppress the evidence, framed the question for this interlocutory appeal rather nicely. Quoting from the pre-trial order suppressing evidence:
If the phone had been properly seized, then a search would be proper commensurate with that seizure. The proper question is whether the initial seizure was permissible. The Defendant argues that the search of the phone on his person exceeded the scope of the search warrant for the home.
The trial court then decided that although the warrant itself was valid, in executing the warrant, the detective overstepped his bounds and extended the search warrant into a personal search of the Appellee.
To me, the issue presented by this interlocutory appeal is a simple and narrow one: When a person voluntarily brings evidence onto a premises during the execution of a valid search warrant, and that evidence is clearly within the scope of the search warrant, is there an unjustified search of the person, if the police ask the individual to produce the evidence and he voluntarily does so? On these points, the facts are undisputed; there is no claim that the police actually searched Appellee. There can be no doubt that had Appellee left the phone on the console of his vehicle, it would have been subject to seizure; had he laid it on the kitchen counter once he entered the house, it could be validly seized; had he dropped the phone on the floor and the police picked it up, a valid seizure would have occurred. Does the fact of Appellee reaching into his pocket and handing the officer his phone require that the phone be excluded? I am not aware of any precedent that would require such an illogical result.
I believe that this is an issue of first impression and the precedent set by reaching the merits would be important to the correct and uniform administration of the criminal laws. The issue is narrow in scope - does a search warrant for property exclude evidence voluntarily produced by persons on that property during the execution of the warrant? That issue requires no in-depth factual analysis or weighing of the credibility of witnesses; the relevant facts are undisputed. By emphasizing irrelevant factual disputes, the majority unnecessarily complicates the issues before us. I would accept the State's interlocutory appeal and reach the merits.
Special Justice Chad W. Pekron joins in this dissent.
"An IP address is a series of numbers that identifies a computer or other device on a network." Choice Escrow & Land Title, LLC v. BancorpSouth Bank , 754 F.3d 611, 614 n.1 (8th Cir. 2014). | [
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LARRY D. VAUGHT, Judge
This is an appeal from the dismissal of an unlawful-detainer action. D & T Pure Trust; Mayflower R.V., Inc.; Toni Len Boydston, as personal representative of the estate of Lendell Doug Boydston; and Toni Len Boydston, individually (collectively referred to as Boydston), sued DWB, LLC, d/b/a Mayflower RV Sales and Service; and Danny Brown (collectively referred to as Brown) in the Crawford County Circuit Court for unlawful detainer. Boydston sought possession of certain property that it had leased to Brown as well as treble damages stemming from Brown's alleged breach of their commercial lease. The Crawford County Circuit Court dismissed Boydston's unlawful-detainer complaint based on "the doctrine of claim preclusion and the concepts of res judicata and judicial economy." We reverse and remand.
I. Background and Procedural History
This dispute stems from Brown's March 2013 purchase of Mayflower RV-a business with locations in Faulkner County, Crawford County, and Hot Spring County-from Boydston. Brown purchased Mayflower RV and also leased the land on which the business was located. These transactions were memorialized in an asset-purchase agreement and a lease agreement.
Notably, the asset-purchase agreement included a venue provision that required that all disputes under the agreement be resolved in Pulaski County. The lease included no such venue provision. Also significant to this appeal is that the lease required Brown to pay Boydston $14,583.33 monthly in rent for the three Mayflower RV locations, but it did not specify the amount of rent attributable to each individual property.
The relationship between Brown and Boydston soured, and Boydston accused Brown of breaching the lease and the asset-purchase agreement. The dispute heightened when the Faulkner County location was destroyed by a tornado in April 2014. At this juncture, Brown and Boydston disagreed on the amount of pro rata rent that Brown was obligated to pay for Mayflower RV's two operational locations in Crawford County and Hot Spring County.
On May 13, 2014, Boydston sent a formal notice of default and opportunity to cure to Brown. In the letter, Boydston alleged numerous breaches of their agreements, including that Brown owed and failed to pay rent in the amount of two-thirds of the amount enumerated in the lease agreement. On May 16, 2014, Brown responded to Boydston's letter and challenged Boydston's understanding of the proper amount of pro rata rent owed. Boydston replied, outlining Brown's continuing defaults.
On June 6, 2014, Boydston sent Brown a letter terminating the lease, a notice of uncured default, and a notice to vacate the Crawford County location. Brown was served with the notice to vacate on June 13, 2014, but did not vacate the property. Boydston informed Brown of additional defaults in letters dated July 15, and September 19, 2014. Brown continued to hold over on the property.
On June 12, 2014, Brown sued Boydston in the Pulaski County Circuit Court seeking a declaratory judgment regarding a multitude of disputes between the parties. Boydston counterclaimed, seeking damages for the breaches of the agreements, which included damages for unpaid rent.
Shortly thereafter, on June 23, 2014, Boydston filed this unlawful-detainer action in the Crawford County Circuit Court pursuant to Arkansas Code Annotated sections 18-60-301 et seq. (Repl. 2015). In his complaint, Boydston alleged that Brown breached the lease, the lease had been terminated based on Brown's breach, and Brown refused to vacate the premises. Brown answered, and Boydston later filed an amended and substituted complaint. Subsequently, Brown answered the amended and substituted complaint and also filed a motion to dismiss pursuant to Arkansas Rule of Civil Procedure 12(b)(8), arguing that venue was proper in Pulaski County.
Next, Boydston filed a motion with the Crawford County Circuit Court to stay the proceedings; however, the circuit court never ruled on the motion. The parties also filed several motions for continuance. The practical result of these motions was that there was no action on this case until after the Pulaski County case was litigated in February 2016.
In July 2016, several months after the February 2016 trial, the Pulaski County Circuit Court entered an order in which Boydston largely prevailed. As part of its ruling, the Pulaski County Circuit Court found that Brown was liable to Boydston under the lease for failure to pay the proper amount of pro rata rent on the Crawford County and Hot Spring County properties. Specifically, it found that Brown owed Boydston $40,251.06 in unpaid rent. The Pulaski County Circuit Court further found that it lacked jurisdiction to decide the unlawful-detainer claims and stated:
The Court's findings of fact regarding when [Brown was] in breach of the Lease Agreement and Asset Purchase and Sale Agreement and the proper pro rata rent amounts that should have been paid by [Brown] to [Boydston] are instructive, but are not binding, for the ... Crawford County Court in the unlawful detainer litigation.
Brown appealed the Pulaski County Circuit Court's order to this court and had numerous arguments in support of reversal. We largely affirmed the Pulaski County Circuit Court, reversing only its awards of prejudgment interest. See DWB, LLC v. D & T Pure Trust , 2018 Ark. App. 283, 550 S.W.3d 420.
After the Pulaski County Circuit Court issued its final order, the parties sought resolution of the unlawful-detainer complaint filed in Crawford County. Boydston filed a motion for summary judgment. His motion was based on the Pulaski County Circuit Court's finding that Brown had breached the lease and owed $40,251.06 in unpaid rent. Boydston contended that the only matter left to adjudicate was his entitlement to treble damages, which the unlawful-detainer statute clearly authorizes in cases involving property used for commercial purposes. See Ark. Code Ann. § 18-60-309(b)(2). On the contrary, Brown renewed his motion to dismiss, making several arguments including that Boydston's unlawful-detainer claim was barred by res judicata.
The Crawford County Circuit Court held a hearing on Brown's and Boydston's competing motions on August 29, 2017. At the hearing, the circuit court grappled with whether the Pulaski County litigation of the amount of unpaid rent Brown owed amounted to an adjudication of the Crawford County unlawful-detainer claim. On September 20, 2017, the circuit court issued a letter opinion granting Brown's motion to dismiss and denying Boydston's motion for summary judgment. On September 27, 2017, the circuit court entered an order to that effect. The order dismissed the unlawful-detainer complaint with prejudice based on "the doctrine of claim preclusion and the concepts of res judicata and judicial economy."
Boydston timely appealed the dismissal order. In this appeal, Boydston seeks reversal of the dismissal order and the denial of his motion for summary judgment. Boydston argues that the circuit court erred when it granted Brown's motion to dismiss based on res judicata. More specifically, Boydston argues that neither claim preclusion nor issue preclusion bars his unlawful-detainer claim. Boydston also contends that the circuit court erred when it granted Brown's motion to dismiss based on the doctrine of judicial economy. Finally, Boydston argues that the circuit court erred when it denied his motion for summary judgment because it failed to apply previously adjudicated facts.
II. Unlawful Detainer Generally
We recognize that an unlawful-detainer action is "quite limited in scope." Coleman's Serv. Ctr. v. FDIC , 55 Ark. App. 275, 292, 935 S.W.2d 289, 298 (1996). Our unlawful-detainer statute is codified at Arkansas Code Annotated §§ 18-60-301 et seq. It provides that a person is guilty of unlawful detainer if he or she, willfully and without right, holds land after demand has been made in writing for the delivery or surrender of possession of the land by the person having the right to possession. Ark. Code Ann. § 18-60-304(2). Jurisdiction for an unlawful-detainer action lies in the county in which the offense was committed. Ark. Code Ann. § 18-60-306(a)(1). And significantly, in cases in which the property sought to be recovered is used for commercial purposes, the plaintiff shall be entitled to receive liquidated damages at the rate of three times the rental value per month for the time that the defendant has unlawfully detained the property. Ark. Code Ann. § 18-60-309(b)(2).
III. The Dismissal Order
The dismissal order provides that "the doctrine of claim preclusion and the concepts of res judicata and judicial economy" apply. Boydston argues that the circuit court erred by dismissing the unlawful-detainer complaint based on this reasoning.
We conduct a de novo review of the order granting the motion to dismiss and determine whether Brown was entitled to judgment as a matter of law. Holliman v. Johnson , 2012 Ark. App. 354, 417 S.W.3d 222 ; Winrock Grass Farm, Inc. v. Affiliated Real Estate Appraisers of Ark., Inc. , 2010 Ark. App. 279, 373 S.W.3d 907.
The purpose of res judicata is to put an end to litigation by preventing a party who has already had a fair trial on the matter from litigating it again. Hardy v. Hardy , 2011 Ark. 82, 380 S.W.3d 354. Res judicata consists of "two facets, one being issue preclusion and the other claim preclusion." Id. at 5, 380 S.W.3d at 357. Claim preclusion and issue preclusion are applicable only when the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. Huffman v. Alderson , 335 Ark. 411, 983 S.W.2d 899 (1998). It is important to acknowledge that res judicata "does not bar a subsequent action where ... a party was prohibited from asserting its claim." Coleman's , 55 Ark. App. at 295, 935 S.W.2d at 300.
First, we analyze whether the circuit court erred as a matter of law by finding that claim preclusion barred Boydston's unlawful-detainer claim. Claim preclusion bars relitigation when the following factors are present: (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action; and (5) both suits involve the same parties or their privies. Hardy , 2011 Ark. 82, at 6, 380 S.W.3d at 358.
Boydston's claim in the Crawford County Circuit Court was for unlawful detainer of commercial property, and accordingly, he sought possession of the property plus treble damages for unpaid rent. In Pulaski County, Boydston had a claim for breach of contract and sought damages for unpaid rent. These claims are certainly related as they both require a determination of the proper amount of rent owed by Brown. Nevertheless, they are separate and distinct actions. An unlawful-detainer action is a proceeding governed by statute, specifically Arkansas Code Annotated sections 18-60-301 et seq. Subsection 306(a)(1) provides that an unlawful-detainer action must be brought in the county in which the property lies. Ark. Code Ann. § 18-60-306(a)(1). Our unlawful-detainer statute specifically prohibited Boydston from asserting his unlawful-detainer claim in Pulaski County, and the Pulaski County Circuit Court correctly determined that it did not have jurisdiction to adjudicate the claim. Accordingly, Boydston did not have a full and fair opportunity to litigate the unlawful-detainer claim in Pulaski County, and claim preclusion does not bar this action in Crawford County.
Turning to issue preclusion, we acknowledge that this doctrine bars relitigation of issues of law or fact. Bradley Ventures, Inc. v. Farm Bureau Mut. Ins. Co. , 371 Ark. 229, 264 S.W.3d 485 (2007). Issue preclusion is sometimes referred to as collateral estoppel. Pursuant to the doctrine of issue preclusion, specific issues of fact cannot be relitigated. Crockett & Brown, P.A. v. Wilson , 314 Ark. 578, 581, 864 S.W.2d 244, 246 (1993).
We easily dispose of the question of whether issue preclusion barred the Crawford County Circuit Court from deciding Boydston's unlawful-detainer complaint and conclude that it did not. Although it is correct that the Pulaski County Circuit Court determined the amount of unpaid rent Brown owed Boydston, it specifically found that the rent amounts were instructive and not binding on the Crawford County court. Moreover, the amount of rent owed is not the only element of an unlawful-detainer action. Because the parties did not have a full and fair opportunity to litigate all components of the unlawful-detainer action in Pulaski County, the Crawford County Circuit Court was not barred from doing so on the basis of issue preclusion.
Boydston also contends the circuit court erred when it determined that dismissal of his unlawful-detainer complaint was proper based on the doctrine of judicial economy. We agree. Judicial economy is merely a policy consideration used when a court makes various determinations and not a basis by which a suit can be barred. See Pennington v. Harvest Foods , 326 Ark. 704, 934 S.W.2d 485 (1996). Thus, judicial economy, by itself, is insufficient to support dismissal.
In summation, we hold that the Crawford County Circuit Court erred by dismissing Boydston's unlawful-detainer complaint based on "the doctrine of claim preclusion and the concepts of res judicata and judicial economy." Accordingly, we reverse the circuit court's order of dismissal.
IV. The Order Denying the Motion for Summary Judgment
Boydston also seeks reversal of the circuit court's order denying his motion for summary judgment. Generally, he contends that because the Pulaski County Circuit Court had previously determined the amount of unpaid rent Brown owed, there were no issues of fact to resolve, and summary judgment was proper.
As a preliminary matter, we must address whether the issue is properly before our court. Ordinarily, the denial of a motion for summary judgment is not reviewable or appealable. See Nucor Holding Corp. v. Rinkines , 326 Ark. 217, 931 S.W.2d 426 (1996). Boydston argues that in this case, the denial is reviewable because it effectively terminated the proceedings below. See Hutchens v. Bella Vista Vill. Prop. Owners' Ass'n, Inc. , 82 Ark. App. 28, 110 S.W.3d 325 (2003) ; Shelter Mut. Ins. Co. v. Williams , 69 Ark. App. 35, 9 S.W.3d 545 (2000) ; Karnes v. Trumbo , 28 Ark. App. 34, 770 S.W.2d 199 (1989).
We do, indeed, review the denial of orders for summary judgment in limited circumstances. Nevertheless, the facts in this case do not allow for our review. The denial of a motion for summary judgment is reviewable when the denial implicitly grants the dismissal order. For instance, in both Hutchens and Williams , which were cited with approval by Boydston, the dismissal order followed competing motions for summary judgment filed by the parties. And in Karnes , the dismissal order followed a motion for summary judgment filed by Karnes that included facts stipulated to by the parties. In each of these cases, the dismissal of the action was based on arguments directly opposed to those in the motion for summary judgment that was denied.
Here, the facts are distinguishable. Although one order disposed of both Boydston's and Brown's motions, their motions were based on legal theories that, although similar, were separate and distinct from each other. And, unlike the cases cited by Boydston, the denial of Boydston's motion for summary judgment was not the impetus for the dismissal of the case. Accordingly, we decline to reach the merits of the order denying the motion for summary judgment.
V. Conclusion
We hold that the circuit court erred by granting Brown's motion to dismiss based on "the doctrine of claim preclusion and the concepts of res judicata and judicial economy." We further conclude that we are without jurisdiction to consider the merits of the order denying Boydston's motion for summary judgment. Accordingly, we reverse and remand for the circuit court to proceed in a manner consistent with our opinion.
Reversed and remanded.
Gruber, C.J., and Whiteaker, J., agree.
We acknowledge that matters outside the pleadings were presented to the circuit court and not excluded. Thus, the motion to dismiss was converted to a motion for summary judgment. See Short v. Westark Cmty. College , 347 Ark. 497, 65 S.W.3d 440 (2002). Irrespective of this, our analysis is the same because the issues presented to the circuit court were purely questions of law. | [
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On May 1, 2018, the trial court entered an "Order finding this court lacks subject-matter jurisdiction." In its order, the trial court made the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. That on March 16, 2017, the Defendant lodged this Court's record with the Arkansas Court of Appeals. This Court retained jurisdiction on collateral matters in this case.
2. That on September 26, 2017, this court granted Plaintiff's Motion to Dismiss this matter without prejudice pursuant to ARCP 41(a). There were no pending counterclaims filed by the Defendant in this matter.
3. That on October 27, 2017, the Temporary Restraining Order (TRO) issued by the Court in this matter expired.
4. That on November 8, 2017, the Arkansas Court of Appeals rendered its decision in this matter.
5. That on December 19, 2017, this court vacated the status hearing set in this matter at the request of both parties.
6. That on January 25, 2018, this court received its mandate from the Arkansas Court of Appeals.
7. That on February 21, 2018, the Defendant submitted his Motion for Damages and Attorney's Fees and Costs in this court.
8. That on March 12, 2018, the Plaintiff submitted its Motion to Strike, Alternatively, a Response in opposition to Defendant's Motion for Damages and Attorney's Fees.
9. That on March 22, 2018, Defendant submitted his Response to the Plaintiff's Motion to Strike.
CONCLUSIONS OF LAW
This court finds that it does not have subject matter jurisdiction to hear the Petitioner's Motion for Damages, Costs, and Attorney's Fees filed on February 21, 2018. Also, this court finds that it lacks subject matter jurisdiction to hear Plaintiff's Motion to Strike filed on March 12, 2018.
Arkansas Rule of Civil Procedure, Rule 60(c) states, in part: "To correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk." Moreover, "The trial court loses jurisdiction to set aside or modify an order under Rule 60 if it does not do so within 90 days of the entry of the original order, even though petitioner's motion may have been filed prior to expiration of that period." Jordan v. Circuit Court of Lee County , 366 Ark. 326, 235 S.W.3d 487 (2006) ; City of Little Rock v. Ragan , 297 Ark. 525, 763 S.W.2d 87 (1989).
In addition, this court also finds that Petitioner has pleaded no basis for any of the exceptions to the ninety-day limitation pursuant to Rule 60. Exceptions under Rule 60(c) include: (1) newly discovered evidence, (2) constructive service, (3) misprisions of the clerk, (4) misrepresentation or fraud, (5) proceedings against an infant or person of unsound mind, (6) or where one of the parties dies prior to judgment.
In the above matter, the original entry date of the order dismissing this matter without prejudice, was September [2]6, 2017. Therefore, pursuant to ARCP 60(c), the Petitioner had ninety (90) days from this date to enter a Motion for Attorney's Fees and Damages. The ninety (90) day provision in this matter would have fallen on December 25, 2017; however, because December 25, 2017 was a holiday, the appropriate day to have filed a motion would have been on December 26, 2017. This court is one of many courts that has technology that allows for e-filing of motions and pleadings. This technology was in place on December 26, 2017. The Defendant could have filed his motion for Damages, Attorney's fees, and Costs to be heard on December 19, 2017. However, the hearing was vacated at the request of both parties.
The Defendant did not submit his Motion for Damages, Attorney's Fees, and Costs in this court until February 21, 2018 or until one hundred forty-eight (148) days after the September [2]6, 2017 order administratively closing this matter without prejudice. This court finds that Plaintiff's Motion for Attorney's Fees, Damages, and Costs filed on February 21, 2018, is not timely pursuant to ARCP 60(c); that no exceptions to the ninety (90) day limitation were pled by the Defendant; and this court lacks subject matter jurisdiction to rule on this matter. Likewise, this court lacks subject matter jurisdiction to hear the Plaintiff's Motion to Strike on March 12, 2018.
On May 15, 2018, Box timely filed a motion for amended findings pursuant to Arkansas Rule of Civil Procedure 52(a). In his motion, Box requested amended findings to reflect that neither party had requested the December 19, 2017 status hearing or requested that the status hearing be vacated. Box also asked the trial court to amend its findings to reflect that an amended mandate had been issued by the court of appeals on February 21, 2018. The trial court did not timely rule on the motion, and therefore Box's motion for amended findings was deemed denied on June 14, 2018. On June 25, 2018, Box filed a timely notice of appeal from the trial court's May 1, 2018 order finding that it lacked subject-matter jurisdiction, as well as the deemed denial of Box's posttrial motion.
In this appeal, Box argues that the trial court erred as a matter of law in dismissing his motion for damages and attorney's fees for lack of subject-matter jurisdiction. The primary premise of Box's argument is that because the trial court loses jurisdiction when the record is lodged on appeal, the trial court was without jurisdiction to enter the order dismissing J.B. Hunt's complaint on September 26, 2017. The record in Box I was lodged with our court on March 16, 2017, and our initial mandate was not issued in Box I until January 25, 2018. Because the first appeal was still pending before the court of appeals when the trial court entered the September 26, 2017 order of dismissal, Box asserts that the dismissal order was void and that the case remained open. Thus, Box argues, the trial court had jurisdiction over the matter when Box filed his motion for damages and attorney's fees on February 21, 2018, which was the day we issued our amended mandate in Box I . We agree with Box's argument.
As an initial matter, we observe that the jurisdictional argument being raised by Box in this appeal was also raised by Box below when he responded to J.B. Hunt's motion to strike his motion for damages and attorney's fees. Box also made this argument, i.e., that the trial court lacked jurisdiction to enter the September 26, 2017 order of dismissal, in response to J.B.
Hunt's motion to dismiss in Box I . Moreover, our supreme court has consistently held that subject-matter jurisdiction is always open, cannot be waived, and can be raised by the appellate court sua sponte. See, e.g. , Am. Abstract & Title Co. v. Rice , 358 Ark. 1, 186 S.W.3d 705 (2004).
Arkansas Rule of Civil Procedure 41(a)(1) provides that while an action may be dismissed as a matter of right, it is effective only upon entry of a court order dismissing the action. In this case, the trial court entered an order dismissing J.B. Hunt's claim without prejudice pursuant to Rule 41(a)(1) on September 26, 2017. The pivotal issue is whether the trial court had jurisdiction to do so. We hold that it did not.
Once the record is lodged in the appellate court, the trial court no longer exercises jurisdiction over the parties and the subject matter in controversy. Myers v. Yingling , 369 Ark. 87, 251 S.W.3d 287 (2007). In Barclay v. Farm Credit Services , 340 Ark. 65, 8 S.W.3d 517 (2000), the supreme court held that the appellate court takes jurisdiction of a matter once the record on appeal is filed, and it loses jurisdiction to the trial court once the mandate is issued with the trial court. The appellate court's mandate is the official notice of the action taken by the appellate court. Barclay , supra. The mandate is directed to the trial court, and it instructs the trial court to recognize, obey, and execute the appellate court's decision. Id. Actions taken by a court without jurisdiction are null and void. Myers , supra.
It is clear from the record that the trial court entered its order of dismissal without prejudice during the period in which the interlocutory appeal in Box I was pending in this court. However, that does not end our inquiry. We recognize that there is an exception to the rule that the trial court loses jurisdiction when the record is lodged in an interlocutory appeal. A trial court does, in fact, retain some limited jurisdiction over the proceedings below. The trial court retains limited subject-matter jurisdiction over matters that are independent of, or collateral or supplemental to, the matters on appeal. See Nameloc, Inc. v. Jack, Lyon & Jones, P.A. , 362 Ark. 175, 208 S.W.3d 129 (2005). Hence, we must determine whether J.B. Hunt's motion to dismiss was collateral to, or independent of, the matters on appeal in Box I .
J.B. Hunt argues that the trial court correctly found that it retained jurisdiction over collateral matters in the case and that its Rule 41(a) motion was a collateral matter. J.B. Hunt generally contends that its motion to dismiss was a collateral matter because its motion to dismiss pertained to its remaining claims for a permanent injunction against Box even though its claims for a preliminary injunction, temporary restraining order, and attorney's fees were pending on appeal. J.B. Hunt relies on Fewell v. Pickens , 346 Ark. 246, 57 S.W.3d 144 (2001), a case where an interlocutory appeal was taken, and the trial court entered some orders while the interlocutory appeal was pending. J.B. Hunt further asserts that a nonsuit has the effect of an absolute withdrawal of the claim and carries with it all the pleadings and all issues with respect to a plaintiff's claim, Tribco Manufacturing Co. v. People's Bank of Imboden , 67 Ark. App. 268, 998 S.W.2d 756 (1999), and thus there was no pending case in which Box could file his motion for damages and attorney's fees.
Box counters by citing Tiner v. Tiner , 2011 Ark. App. 478, 385 S.W.3d 326, which was an appeal of an interlocutory order granting an injunction. We held in Tiner that the appeal from the injunction divested the trial court of jurisdiction over certain other matters involved in the case and held the trial court's actions on those matters to be of no effect.
We do not find the holding in Fewell , supra , upon which J.B. Hunt relies, to be persuasive under these circumstances. Fewell was an ongoing receivership action under the Uniform Insurers Liquidation Act. There were two appeals taken. In the first appeal, the appellants appealed the trial court's order appointing a receiver for an insurance company and enjoining the appellants from transacting business for the company. See Fewell v. Pickens , 344 Ark. 368, 39 S.W.3d 447 (2001) ( Fewell I ). While Fewell I was pending on appeal before the supreme court, the trial court entered an order requiring the appointed receiver to liquidate the insurance company and prohibiting the appellants from doing anything to diminish the value of the insurance company or any of its holdings or assets. Appellants appealed from that order, and one of their arguments in Fewell v. Pickens , 346 Ark. 246, 57 S.W.3d 144 (2001) ( Fewell II ), was that the trial court lacked subject-matter jurisdiction to enter the order of liquidation because it did so while the appeal in Fewell I was still pending. The supreme court disagreed, and wrote:
In their final point on appeal, Fewell and Holdingsco argue that the trial court did not have subject-matter jurisdiction to hear and decide the Commissioner's petition for order of liquidation because the case was on appeal to this court on the issue of the validity of the appointment of the receiver. The Commissioner argues that the trial court did have jurisdiction to hear the liquidation issues because it is a collateral matter not on appeal. [Emphasis ours.]
....
On the merits, it appears that the General Assembly anticipated that various orders would be appealed without affecting the jurisdiction of the trial court, as noted in Ark. Code Ann. § 23-68-103(d), which states:
(d) An appeal shall lie to the Supreme Court from an order granting or refusing rehabilitation, liquidation, or conservation, and from every other order in delinquency proceedings having the character of a final order as to the particular portion of the proceedings embraced therein. [Emphasis in original.]
In looking at this provision, we believe that the General Assembly anticipated that appeals would arise piecemeal from orders issued by the trial court. As such, we find that the matters here were collateral and that the trial court retained jurisdiction to hear the liquidation petition while the appeal in Fewell I was pending here.
Divestiture of jurisdiction in the trial court only occurs when the issue on appeal directly relates to the matter under review by the appellate court. We noted in Vanderpool v. Fidelity & Cas. & Ins. Co. , 327 Ark. 407, 939 S.W.2d 280 (1997), that:
The rule that an appeal divests the trial court of jurisdiction applies only to matters necessarily or directly involved in the matter under review. It does not stay further proceedings with respect to rights not passed on or affected by the judgment or decree from which the appeal is taken. Matters which are independent of, or collateral or supplemental, are left within the jurisdiction and control of the trial court. [Emphasis ours.]
Id. , 327 Ark. at 412.
Fewell II , 346 Ark. at 256-57, 57 S.W.3d at 150-51 (some citations omitted).
We conclude that the supreme court's holding in Fewell II does not control the circumstances involved in the instant case.
Fewell II involved receivership and liquidation proceedings and the application of a statute under the Uniform Insurers Liquidation Act. This Act creates fractured proceedings that the supreme court compared to a bankruptcy case and contemplates interlocutory appeals while other aspects of the receivership and liquidation proceed. Contrary to J.B. Hunt's claim, the supreme court's analysis in Fewell II offers minimal guidance, at best, in deciding the jurisdictional issue in the case at bar.
Focusing on the facts and circumstances presented here, as we must, we cannot conclude that the collateral-matter exception to the general rule urged by J.B. Hunt is applicable herein. We conclude that J.B. Hunt's motion to dismiss was not collateral to the matter on appeal in Box I and therefore that the exception does not apply. The preliminary injunction and temporary restraining order at issue in the first appeal was premised on J.B. Hunt's complaint and Box's alleged violations of the three employment agreements that contained the restrictive language, terms, and conditions; thus, the complaint was fundamentally and inextricably intertwined with the injunction and temporary restraining order and was not merely collateral to the matter on appeal. Because J.B. Hunt's motion to dismiss was not a collateral matter, the trial court did not have jurisdiction to rule on the motion, and the order dismissing the case without prejudice entered September 26, 2017 is null and void.
In this case, after we issued our amended mandate in Box I , jurisdiction was reinvested in the trial court. Box then filed his motion for damages and attorney's fees, which the trial court dismissed based on a lack of jurisdiction. Because the trial court was relying on a previous dismissal order that was itself void, we hold that the trial court erred in this regard. Because the case remained open, the trial court retained subject-matter jurisdiction over the case after our amended mandate was issued. Therefore, we reverse the trial court's order finding that it lacked subject-matter jurisdiction, and we remand for further proceedings, including the resolution of J.B. Hunt's motion for voluntary nonsuit and Box's motion for damages and attorney's fees.
Reversed and remanded.
Gladwin and Switzer, JJ., agree.
We acknowledge that in its brief, J.B. Hunt offers four alternative arguments to affirm beyond the jurisdictional issue, including that Box is barred from seeking damages because he failed to post a bond; that Box could not be awarded attorney's fees because he was not a prevailing party; that Box failed to mitigate his damages; and that emotional-distress damages are not available. All of these alternative arguments were raised below in J.B. Hunt's motion to strike, but that motion and the arguments therein were expressly not considered by the trial court. The only issue decided by the trial court was the jurisdictional issue, which we reverse. There are no additional findings to review, and thus we express no opinion on the alternate arguments raised by J.B. Hunt below. | [
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LARRY D. VAUGHT, Judge
Patricia Barton appeals the December 31, 2018, order entered by the Poinsett County Circuit Court terminating her parental rights to her three children, JB (born June 5, 2008), ZS (born April 8, 2013), and BS (born April 12, 2017). On appeal, Barton contends that the circuit court clearly erred in finding that statutory grounds supported termination and that termination was in the children's best interest. She also contends that the court abused its discretion in admitting her psychological evaluation into evidence. We affirm.
On December 10, 2015, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect alleging that JB and ZS were dependent-neglected due to environmental neglect. A DHS caseworker attached an affidavit to the petition stating that Barton's home had no heat, and it was fifty-three degrees inside the home; there were holes in the floor; there was no hot water and no refrigerator; broken windows were covered with plastic and boards; there were exposed wires in the electrical outlets; the ceiling was broken and was falling through in some places; there was no working tub; and the toilet had been broken into pieces. The caseworker further stated that DHS had a history with the Barton family dating back to November 2008 that included protective-services cases in 2013 and 2014. The circuit court entered an ex parte order for emergency custody of JB and ZS on December 14, 2015, and a probable-cause order was entered on December 16.
The court adjudicated JB and ZS dependent-neglected on the basis of environmental neglect, and the goal of the case was reunification. Following a review hearing, an order was entered on April 12, 2016, wherein the court found that Barton had complied with the case plan, and the court authorized a trial placement. On June 13, the court entered an order returning JB and ZS to Barton's custody, closed the dependency-neglect case, and opened a protective-services case.
However, on August 22, DHS filed a second petition for emergency custody of JB and ZS, in which it alleged environmental neglect. The caseworker's affidavit accompanying this petition stated that Barton had no electricity in her home and had been evicted for failure to pay rent. Barton reported that she planned to move in with her neighbor, whom she planned to marry, but he had locked her and the children out of his apartment. She had no alternative housing plan. The court entered an ex parte order for emergency custody the same day. Later, a probable-cause order was entered, and on October 5, the court entered an adjudication order finding JB and ZS dependent-neglected due to environmental neglect.
A January 11, 2017 review-hearing order stated that Barton complied with parts of the case plan but not others. She failed to visit the children on a regular basis and to maintain appropriate housing. The order stated that she reported she had been living with her neighbor, but because he abused her, she had been staying in a shelter for abused women. Another review-hearing order was entered on April 10. This order found that Barton had completed the psychological evaluation but lacked stable housing and struggled with the children's behavior during visitation.
BS was born on April 12, 2017, and on April 24, DHS filed a third petition for emergency custody and dependency-neglect alleging that BS was dependent-neglected based on DHS's custody of his siblings. An ex parte order of emergency custody was entered the same day. A probable-cause order was entered on April 27, and an adjudication order was entered on May 25, finding BS dependent-neglected.
On September 28, the court entered a permanency-planning order finding that Barton had been complying with the case plan and the court's orders and was making significant and measurable progress toward reunification. The court further found that placement of the children with Barton would occur no later than three months from September 22, 2017. A fifteen-month-review order was entered on December 29, wherein the court found that Barton had complied with the case plan, yet the court authorized a plan for adoption.
On March 22, 2018, DHS filed a petition for termination of parental rights alleging that termination was in the children's best interest and that two statutory grounds for termination existed: (1) subsequent factors, Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) (Supp. 2017) and (2) aggravated circumstances, Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(3)(A) & (B) .
At the termination hearing, Kelli Cole, a DHS foster-care and protective-services supervisor, testified that both JB and ZS had been taken into DHS custody in December 2015 because of environmental neglect and inadequate supervision. Cole stated that JB and ZS were returned to Barton in a trial placement in February 2016; however, DHS received hotline calls that the children were leaving home without Barton's knowledge. One of the children was found by the police at a store. Cole testified that DHS continued to provide services, and in June 2016, an order was entered returning custody of JB and ZS to Barton. However, following a home visit in August 2016, DHS found that there was no electricity in the home and that Barton had been evicted. JB and ZS were removed again from Barton's custody. Cole said that BS was taken into DHS care in April 2017 because his siblings had been adjudicated dependent-neglected.
Cole further testified that Barton had completed all the services DHS offered her. She participated in two parenting classes, watched the video "The Clock is Ticking," visited the children, and submitted to a psychological evaluation and therapy. Cole stated that despite these services, Barton has not "overcome being an ineffective parent" and is not "able to demonstrate the basic parenting skills right now." Cole said that Barton's primary problem was her inability to tend to all three children at one time. Cole said that the children would be subject to potential harm in Barton's custody if the boys got out of the home without her knowledge: "She has not exhibited the skill set that shows that she's capable of keeping these kids safe." Cole also noted that the psychological evaluation recommended that Barton could not care for the children by herself. Cole testified that Barton provided a list of thirteen people she said could help her, but DHS was able to contact only four of them, and none were willing to live with Barton full time. One or two said they would help a "majority of the time," but these people were found to be inappropriate. Cole testified that there are no other services that DHS can provide to Barton.
Cole also stated that during the case, Edgar Lee Davis Jr. began living with Barton. Davis's brother, Devon Davis, also moved into Barton's home and was physically abusive to Barton. Finally, Cole testified that the children are adoptable, that there are no barriers to adoption, and that their foster parents are interested in adopting them.
DHS program assistant Courtney Francomano testified that she scheduled and supervised forty-three of Barton's visitations, which were held at a play area in a mall that had the same entrance and exit. Francomano testified that Barton had a difficult time managing the three children and lost at least one of the children during twenty-two of the visitations she observed. Francomano testified that it happened with all three children and that it was a constant issue. Francomano stated that she had not seen any progress over the course of time she had been observing Barton's visitation. Francomano further testified that while Davis was present for some of the visits, he was either on his cell phone or not paying attention.
Barton testified that she did not want her parental rights terminated. She stated that she worked hard on the case plan and had learned from the services provided by DHS. She said that she was trying her best to supervise her children but admitted that it is difficult. She said that Davis helped her with the children during visitations, and she denied that the children were constantly wandering off during visitations. She said that since April 2017, her home has been appropriate and that there would not be any safety issues if the children were returned to her custody. Barton also testified that there were people willing to help her.
Barton also said that Devon Davis had lived in her home for about four months. She said when Devon threatened to hit her "between her eyes," she called the police because she was afraid of him, and Devon was arrested. Barton also testified that during the case, she lived in a women's shelter for three months because BS's father "was beating" her.
At the conclusion of the hearing, the circuit court orally granted DHS's petition to terminate Barton's parental rights to the children. On October 31, 2018, the circuit court entered a termination order finding that DHS proved both the subsequent-factors and the aggravated-circumstances grounds and proved that termination was in the best interest of the children. In its order, the court relied on the testimony of both Cole and Francomano, which the court found credible, and Barton's psychological evaluation. Barton appealed from this order.
Termination-of-parental-rights cases are reviewed de novo. Pine v. Ark. Dep't of Human Servs. , 2010 Ark. App. 781, at 9, 379 S.W.3d 703, 708. Grounds for termination of parental rights must be proved by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm conviction of the allegation sought to be established. Id. , 379 S.W.3d at 708. 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. , 379 S.W.3d at 708. 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. , 379 S.W.3d at 708. In resolving the clearly erroneous question, we give due regard to the opportunity of the circuit court to judge the credibility of witnesses. Id. , 379 S.W.3d at 708.
Termination of parental rights is an extreme remedy and in derogation of a parent's natural rights; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id. , 379 S.W.3d at 708. As with all issues addressing child placement, the appellate court affords heightened deference to the circuit court's superior position to observe the parties personally and to weigh credibility. Dinkins v. Ark. Dep't of Human Servs. , 344 Ark. 207, 215, 40 S.W.3d 286, 292-93 (2001).
Barton first argues that the circuit court erred in finding grounds supported termination of her parental rights. The circuit court concluded that the aggravated-circumstances ground supported termination based on the evidence that (1) the children had been removed from Barton's custody due to environmental neglect and parenting issues; (2) the case had been open for three years; (3) DHS had offered services, and despite these services, Barton continued to manifest the inability to implement basic parenting skills such as not leaving the children unattended; and (4) by Barton's own admission, she has a problem focusing on the tasks needed to protect her children. The court also cited the psychological evaluation that concluded there is little likelihood that any further services could result in a successful reunification.
Barton challenges these findings by arguing that the court erred in concluding she was unable to parent on the basis of evidence that her children were "regularly getting away from [her] and beginning to wander off during visitations." Barton argues it was an "unfair assessment" of her supervisory skills to force her to exercise her visits at the mall-an "environment rife with potential for chaos."
In light of the evidence in this case, we hold that the circuit court did not clearly err in finding that there is little likelihood that services to the family will result in successful reunification. The evidence showed that after completing nearly three years of DHS services, Barton has not learned how to adequately supervise and protect her children. Barton has a long history with DHS and its services dating back to 2008 that includes protective-services cases in 2013, 2014, and 2016, and a dependency-neglect case in 2015. During the 2015 and 2016 dependency-neglect cases, DHS provided services, and Barton completed them; however, the evidence demonstrates that she did not learn from the services. When she received a trial placement in February 2016, hotline calls were made reporting that the children were leaving the home without Barton's knowledge. When custody of JB and ZS was returned to Barton in 2016, the children were removed from Barton a second time due to environmental neglect.
Cole's testimony, which the circuit court found credible, established that despite complying with the case plan, Barton failed to learn how to parent, she lacks the mental capacity to watch all three of her children at the same time, the children are able to wander away from Barton without her knowledge, and she requires full-time live-in assistance to care for her children. Francomano, whose testimony the circuit court also found credible, stated that despite only one way in and out of the play area at the mall, in twenty-two of the forty-three visits she supervised, Barton would lose one of her three children. Francomano said it was a constant issue. Barton conceded that it was sometimes difficult for her to keep an eye on her three children. According to Francomano, Davis was no help. The children were able to wander off many times without being noticed by either him or Barton.
Finally, the psychological evaluation corroborated the testimony of both Cole and Francomano by concluding that
Barton's ability to [e]ffectively and adaptively problem solve her real-life problems can be difficult for her based upon her intellectual functioning level without the help of a good support system. It is highly recommended that she has several means of support (e.g. family, counseling, church family) to continue to help her with daily living skills and decisions, major decisions regarding her current custody situation and the potential reunification with and care of her children.
This evidence supports Cole's testimony that Barton lacks the mental capacity to care for her children and that Barton requires full-time assistance, which Cole stated is not available.
Based on this evidence, we cannot say that the circuit court clearly erred in finding that there is little likelihood that services to Barton will result in a successful reunification. Therefore, we affirm the circuit court's aggravated-circumstances ground in support of termination. Because proof of only one statutory ground is sufficient to terminate parental rights, Hooks v. Ark. Dep't of Human Servs. , 2017 Ark. App. 687, at 11, 536 S.W.3d 666, 673, we do not address Barton's challenge to the subsequent-factors ground.
Barton also challenges the circuit court's finding that termination was in the best interest of the children. In order to terminate parental rights, a circuit 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. Pine , 2010 Ark. App. 781, at 9-10, 379 S.W.3d at 708-09 (citing Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii) [Supp. 2017] ). The evidence presented on potential harm must also be viewed in a forward-looking manner and considered in broad terms, but a circuit court is not required to find that actual harm will result or to affirmatively identify a potential harm. Chaffin v. Ark. Dep't of Human Servs. , 2015 Ark. App. 522, at 5, 471 S.W.3d 251, 255.
In support of its best-interest finding, the circuit court concluded that the children are adoptable and at risk of potential harm should they be returned to Barton's custody. The court found that Barton was in an unstable relationship with Davis, which is consistent with her statement to the psychologist during her evaluation that "she always ends up with the wrong man who won't help her kids." The court also cited Barton's lack of focus when supervising her children, stating that the children are at risk of getting away from her, which happened during twenty-two out of thirty-five visitations.
Barton does not challenge the court's adoptability finding. She does challenge the court's potential-harm finding, arguing that she had remedied the problems with her home and that she should have been allowed to have visitation there instead of at the mall.
Barton's argument is nothing more than a request for our court to reweigh the evidence in her favor, which we cannot do. The circuit court found the testimony of Cole and Francomano was credible. The sum of their testimony was that Barton lacks the mental capacity to care for all three of her children and that they consistently got away from her during visitations despite the confines of the area and Barton's and Davis's presence. The credibility of any witness's testimony is to be assessed by the trier of fact-who may believe all, part, or none of it. Brumley v. Ark. Dep't of Human Servs. , 2015 Ark. App. 90, at 12, 455 S.W.3d 347, 355. This testimony supports the circuit court's potential-harm finding.
Other evidence supports the potential-harm finding. Cole stated environmental neglect is not an issue for Barton when the children are not in the home with her; however, when the children are home, Barton has issues keeping the home safe. Moreover, there is evidence that Barton has a history of being with abusive men. During this case, she lived at a women's shelter for three months because BS's father beat her. She planned to marry and live with her neighbor after she was evicted in August 2016; however, he locked her and her children out of his apartment, leaving them homeless. After she married Davis, his brother moved into their home and was physically abusive to her. Barton reported her problems with men to the psychological examiner. She said that she "always ended up with the wrong men and they end up cheating on me or beating me up and when I finally get away from them they don't help me with the kids and I get to feeling overwhelmed." On the basis of this evidence, we hold that the circuit court did not clearly err in finding that the children were at risk of potential harm if returned to Barton's custody. Accordingly, we affirm the circuit court's best-interest finding.
Finally, Barton argues that the circuit court abused its discretion in admitting into evidence the psychological evaluation. She contends that the report is inadmissible hearsay. However, this argument is not preserved for appeal because it was not made at the termination hearing. Barton's counsel's stated: "I will object unless the psychologist testifies," and "[I]t's my position that the psychologist needs to be here to testify." This vague objection did not state the legal basis for the objection. While this objection could be a hearsay objection, it could also be an authentication objection or a right-to-cross-examine objection. Ark. Dep't of Human Servs. v. Huff , 347 Ark. 553, 560, 65 S.W.3d 880, 886 (2002) (holding that the right to cross-examination is especially important in termination-of-parental-rights cases).
Because Barton failed to raise a hearsay objection below, her argument is not preserved for appeal. Samuels v. Ark. Dep't of Human Servs. , 2014 Ark. App. 527, at 4, 443 S.W.3d 599, 602 (holding that if a specific argument is not raised at trial, it is not preserved on appeal). Therefore, we affirm the admission of the psychological evaluation and hold that the circuit court did not err in relying on the report to support its grounds and potential-harm findings.
We further note that any error in admitting the evaluation was harmless. We will not reverse a circuit court's ruling on admissibility of evidence absent a manifest abuse of discretion. Hooks , 2017 Ark. App. 687, at 13, 536 S.W.3d at 674. A mere showing that the circuit court erroneously admitted evidence will not support a reversal absent a showing of prejudice. Id. , 536 S.W.3d at 674. 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. at 13-14, 536 S.W.3d at 674. When evidence is improperly admitted but the same evidence is admitted through another source, there is no reversible error. Id. at 14, 536 S.W.3d at 674. As set forth above, there is separate, independent evidence (the testimony of Cole, Francomano, and Barton) that supports the circuit court's grounds and potential-harm findings.
Affirmed.
Abramson and Brown, JJ., agree.
Relevant to this appeal, aggravated circumstances means that a determination has been made by a court that there is little likelihood that services to the family will result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A) & (B) (Supp. 2017).
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N. MARK KLAPPENBACH, Judge
Appellant John Paul Lovett was convicted by a jury in the Franklin County Circuit Court of aggravated residential burglary with a firearm enhancement, second-degree battery, and theft of property. He was sentenced as a habitual offender to a total of fifty-five years' imprisonment. Before trial, the circuit court denied appellant's motion to suppress his statement made to law enforcement officers. Appellant now argues on appeal that the circuit court erred in denying his motion to suppress due to his vulnerability to police promises of leniency. We affirm.
In his motion to suppress, appellant alleged that his statement was not made freely, voluntarily, and knowingly because the officers told him that they would get him mental-health treatment, drug-rehabilitation treatment, and a brief prison sentence if he provided a truthful statement. He claimed that he would not have given a statement without these representations. Chief Deputy Jeff Wood of the Franklin County Sheriff's Office was the only witness to testify at the suppression hearing. Wood testified that he, along with Franklin County Sheriff Anthony Boen, interviewed appellant on July 3, 2017, about an incident that had occurred on May 27. Appellant had previously declined to give a statement to officers, but Wood had subsequently spoken with appellant's girlfriend, Kimberly Munholland, who indicated that appellant now wanted to talk. Munholland told Wood that appellant needed mental-health treatment and drug rehabilitation, and she wanted Wood to recommend it; Wood said that he agreed with her.
Appellant was detained on other charges in a different county at the time of the interview. The transcript of the recorded interview was admitted into evidence. At the beginning of the interview, Wood told appellant about his conversation with Munholland. Appellant said that Munholland had told him that "she made a statement and that she wanted me to go ahead and do the same." Wood then said that
[w]e talked about getting you or recommending getting you into a mental facility. She said that's what you would want or need. That's really more than what you need than prison, and I told her that I wouldn't have a problem recommending that. I can't make you promises, but I can recommend that to the prosecutor, okay?
Sheriff Boen then stated, "You know I'll go to bat for you." Appellant did not respond to these statements. After explaining what they wanted to talk about, Wood advised appellant of his Miranda rights, and appellant signed a waiver of those rights. Appellant then described how he and an accomplice had broken into a man's house to rob him of his pills and how he had hit the man and stolen his gun. At the end of the interview, appellant asked whether the prosecutor would be interested in helping him and what the options may be. The officers told him that the prosecutor and the defense attorney could negotiate a plea deal and take the officers' recommendation into consideration.
Wood testified that he made a written recommendation to the State for appellant to receive "rehabilitation and mental help" as reflected by a signed document admitted into evidence. Wood said that at the time of the interview, appellant did not appear to be under the influence of drugs or alcohol or impaired in any way, that he was thirty-two years old, that he has a GED, and that he has an extensive criminal history. The circuit court denied the motion to suppress, and appellant was subsequently convicted at trial.
It is well settled that a statement induced by a false promise of reward or leniency is not a voluntary statement. Fuson v. State , 2011 Ark. 374, 383 S.W.3d 848. When a police officer makes a false promise that misleads a prisoner and the prisoner gives a confession because of that false promise, then the confession has not been made voluntarily, knowingly, and intelligently. Id. Because the object of the rule is not to exclude a confession of truth but to avoid the possibility of a confession of guilt from one who is, in fact, innocent, a person seeking to have a statement excluded on the basis that a false promise was made must show that the confession induced by the false promise was untrue. Id.
In determining whether there has been a misleading promise of reward, we consider the totality of the circumstances. Id. The totality determination is subdivided into two main components: the statement of the officer and the vulnerability of the defendant. Id. If during the first step, the court decides that the officer's statement is an unambiguous false promise of leniency, there is no need to proceed to the second step because the defendant's statement is clearly involuntary. Id. We also do not move forward to the second step if we conclude that no false promise of reward or leniency was made. If, however, the officer's statement is ambiguous, making it difficult for us to determine if it was truly a false promise of leniency, we must proceed to the second step of examining the vulnerability of the defendant. Id. Factors to be considered in determining vulnerability include (1) the age, education, and intelligence of the accused; (2) how long it took to obtain the statement; (3) the defendant's experience, if any, with the criminal-justice system; and (4) the delay between the Miranda warnings and the confession. Id. We will not reverse the circuit court's denial of a motion to suppress a statement unless it is clearly erroneous or clearly against the preponderance of the evidence. Roberts v. State , 352 Ark. 489, 102 S.W.3d 482 (2003).
Appellant argues that Wood's agreement to recommend treatment for him followed by Boen's promise to "go to bat" for him was equivalent to the officer's promise of help in Pyles v. State , 329 Ark. 73, 947 S.W.2d 754 (1997). In Pyles , the appellant argued that his confession to murder was induced by an officer's promise that he would "do everything in the world [he] could" for him. The State conceded that a questionable promise may have been made, and the supreme court examined the vulnerability of the appellant. The court considered the fact that Pyles had been interrogated for several hours by other officers before being questioned by the officer who made the promise; this officer knew Pyles before his arrest through baseball and had visited with Pyles about that; and Pyles had become emotional during the interrogation and held the officer's hands and wept. The court concluded that the officer made a false promise that resulted in an involuntary confession.
Appellant contends that Boen's promise to "go to bat" for him conveyed that he would do his best to see that appellant got the help he needed. We agree with the State, however, that Boen's statement did not amount to a blanket statement to help appellant as in Pyles ; rather, it was an affirmation of the statement Wood had just made regarding making a recommendation to the prosecutor. Wood did, in fact, make such a recommendation; thus, we do not find his statement to be a false promise. See Wallace v. State , 2009 Ark. 90, 302 S.W.3d 580 (holding that an officer's statement that a jury would not convict someone who was acting in self-defense was not a false promise).
Even if we were to conclude that the officers made an ambiguous false promise of leniency, we do not find that appellant was especially vulnerable to the officers' statements. Appellant argues that he was vulnerable because he needed mental-health treatment and drug rehabilitation, and he told the officers that he was "having a hard time" in jail and that he was taking prescription medicine. There was no indication, however, of the reason appellant was prescribed medicine, and the only specific complaints about his jail stay were that he was "with a bunch of kids," there was "nothing to do," and "it's just all negativity." There was also no evidence that appellant became emotional during the interview; he was in his thirties and had obtained a GED; he was given his Miranda warnings immediately before he began to tell the officers what had transpired; the entire interview lasted less than an hour; and he had considerable experience with the criminal-justice system. This evidence does not demonstrate that appellant was so vulnerable that the officers' statements rendered the confession involuntary. In reviewing the totality of the circumstances, we conclude that appellant's confession was voluntarily, knowingly, and intelligently given. Accordingly, we affirm the circuit court's denial of appellant's motion to suppress.
Affirmed.
Gruber, C.J., and Murphy, J., agree. | [
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RAYMOND R. ABRAMSON, Judge
James Randall Amason, Sr., appeals following the Union County Circuit Court's entry of summary judgment on his declaratory-judgment action in favor of the City of Calion, Arkansas (the City). On appeal, Amason argues that the circuit court erred by (1) finding that he was procedurally barred from asserting the declaratory-judgment action; (2) concluding that there were no genuine issues of material fact; and (3) relying on inadmissible evidence. He also argues that the circuit court erred by granting the City's declaration of taking and denying his petition for an injunction. We affirm.
This case arises out of the City's construction of a wastewater plant on Calion Lake. Specifically, the plant is a sanitary sewage system that would discharge treated wastewater effluent into the lake. Amason owns property on Calion Lake, and on February 2, 2015, the City filed a condemnation complaint against Amason seeking two easements-a permanent easement and a construction easement-for construction of the plant.
On March 2, 2015, Amason answered and filed a counterclaim for a declaratory judgment. Amason asked the court to declare that "if the City of Calion goes forward with its stand-alone sewer system and dumps effluent into Calion Lake such will void the Surface Lease that was executed on July 13, 1934." He attached the 1934 surface lease and a 1955 assignment of the surface lease to the Arkansas Game and Fish Commission (AGFC).
The 1934 surface lease shows that certain Union County landowners leased their interests in several parcels of land for the establishment of Calion Lake. The surface lease states in part as follows:
The purpose of this lease is to provide a public fishing lake for the use, pleasure and enjoyment of the members of the public.... This lease shall continue and remain in full force and effect for such time as said lake is maintained and used for the purpose aforesaid, and no longer. If said lake is not maintained or the purpose of the lease abandoned, then rights herein surveyed shall cease and the right of possession to the surface of the lands shall return and vest in the respective owners.
In 1955, the lease was assigned to AGFC so long as it "maintain[s], operate[s] and preserve[s] the said Calion Lake as a public fishing lake for the use, pleasure and enjoyment of the members of the public generally and in keeping with purposes of said lease."
On May 18, 2015, the City filed a declaration of taking of two easements across Amason's property. The City stated that just compensation for the easements had been deposited into the court's registry.
On May 29, 2015, Amason objected to the City's declaration. He also filed a petition for injunctive relief. In the injunction petition, he requested that the court enjoin the City from constructing the wastewater plant and from "pursuing eminent domain in this cause of action" until the declaratory-judgment action had been resolved.
On February 3, 2016, the City filed a motion for summary judgment on Amason's declaratory-judgment action. The City argued that Amason did not have standing to assert the action and had failed to join necessary parties. The City further argued that the construction of the wastewater plant did not void the surface lease.
In support of its summary-judgment motion, the City offered the following exhibits: a copy of the 2015 assignment of the surface lease to the City; an affidavit from the Union County judge, Mike Loftin; an affidavit from the City's mayor, Karen Evans; a letter from the Arkansas Natural Resources Commission (ANRC); a letter from the Arkansas Department of Health (ADH); a letter from the United States Army Corps of Engineers (USACE); and two letters from AGFC.
In his affidavit, Loftin stated that the City had plans to construct a wastewater plant on Calion Lake to serve residents and to combat the pollution levels in the lake and that Union County did not object to the plant. In her affidavit, Evans stated that Calion Lake currently had pollution levels that prevent recreational activities such as swimming and skiing and that the wastewater plant would release treated effluent into the lake that would be cleaner than the current water. She stated that the water would be tested regularly to comply with Arkansas State regulatory standards. Evans further stated that Blake Harrell had conducted a review of the plant and that he had found that it would not negatively impact the fish population and that it complies with all environmental requirements.
In its November 13, 2012, letter, the ANRC approved the wastewater-plant plans and stated that the plant complies with required environmental-review regulations. In its July 15, 2015 letter, the ADH chief engineer stated that the ADH had made a preliminary approval of the wastewater plant. In its November 24, 2015 letter, USACE approved a permit for the wastewater plant.
In a January 17, 2014 letter, the AGFC assistant chief of fisheries management stated that he was responding to Amason's letter concerning the wastewater plant on Calion Lake. He noted that the lake had a history of water-quality problems and that it had been listed on the Environmental Protection Agency's (EPA's) impaired-waters list. He stated that AGFC is committed to working with the Arkansas Department of Environmental Quality to ensure that nothing will be discharged into the lake that will cause a decline in water quality.
In its October 8, 2015 letter, the AGFC director stated that the Commission had no concerns about the City's proposed wastewater plant. The director stated that after the plant is completed, biologists would monitor the water to ensure that the projected water levels matched the proposed levels and that no aquatic life is negatively impacted.
After the City filed its summary-judgment motion, the court entered an order on May 9, 2016, denying Amason's petition for an injunction and finding that the City's declaration of taking was valid.
On May 13, 2016, the City filed a reply to Amason's response to its summary-judgment motion. In the reply, the City additionally argued that the counterclaim did not present a justiciable controversy.
On June 23, 2017, the court held a hearing on the City's summary-judgment motion. At the hearing, the City's attorney informed the court that construction of the wastewater plant had commenced but that the project had not yet been completed.
On October 26, 2017, the court entered a written order granting the City's motion for summary judgment. On November 22, Amason filed a notice of appeal, appealing both the May 9, 2016 order upholding the City's taking and denying injunctive relief and the October 26, 2017 order granting the City's summary-judgment motion.
On December 12, the court entered a supplemental order granting the City's summary-judgment motion. In the supplemental order, the court specifically found that Amason was procedurally barred from bringing the declaratory-judgment action because (1) he did not have standing; (2) he had failed to join necessary parties; and (3) the action did not present a justiciable controversy. The court further found that the construction of the wastewater plant did not void the surface lease.
On December 20, Amason filed an amended notice of appeal to include the December 12, 2017 supplemental order. On February 26, 2018, Amason filed a motion to dismiss the appeal for lack of a final order in this court, and on March 28, 2018, we dismissed the appeal without prejudice.
On April 6, 2018, the City filed a motion to enforce settlement in the circuit court. The City alleged that at the time it filed the condemnation complaint against Amason, it placed $ 3,810 in the court's registry. The City stated that after the court granted the City's summary-judgment motion, both the City and Amason agreed that Amason would accept the $ 3,810 in full satisfaction for the taking; however, the sum remained in the registry. The City alleged that it had contacted Amason concerning the settlement but that he had not responded.
On April 25, 2018, the court entered an agreed order on the City's motion to enforce the settlement agreement. The order states, "The Parties have come to an agreement and [Amason] has agreed to take the money from the registry of the Court in compensation for the City's taking. Mr. Amason will accept the $ 3,810 in full satisfaction."
On May 5, 2018, Amason filed a notice of appeal, appealing the May 9, 2016 order upholding the City's taking and denying injunctive relief; the October 26, 2017 order granting the City's summary-judgment motion; the December 12, 2017 supplemental order; and the April 25, 2018 agreed order. We now turn to the merits of the appeal.
Amason first argues that the circuit court erred in granting summary judgment based on procedural deficiencies. Even assuming that the circuit court erred in finding that Amason was procedurally barred from asserting the declaratory-judgment action, we hold that the circuit court properly granted summary judgment because there are no genuine issues of material fact as to whether the wastewater project voided the surface lease.
Summary judgment may be granted by a circuit court only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, clearly show that there are no genuine issues of material fact to be litigated and the party is entitled to judgment as a matter of law. Watkins v. Ark. Elder Outreach of Little Rock, Inc. , 2012 Ark. App. 301, 420 S.W.3d 477. When the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing a genuine issue as to a material fact. Id. On appeal, we need only decide if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Id. In making this decision, we view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. The purpose of summary judgment is not to try the issues but to determine whether there are any issues to be tried. Davis v. Schneider Nat'l, Inc. , 2013 Ark. App. 737, 431 S.W.3d 321.
In this case, the surface lease states that its purpose is to provide a public fishing lake, and the uncontested evidence shows that the wastewater plant would improve the water quality in Calion Lake. Calion Lake had significant water-quality problems-it had been listed on the EPA's impaired-waters list. However, both Loftin and Evans stated that the facility would combat the existing pollution in the lake. Further, ADH, ANRC, and AGFC had approved the wastewater plant, and AGFC stated that it would continue to monitor the water to ensure that the projected water levels matched the proposed levels and to protect the aquatic life. Additionally, USACE had approved a permit for the plant.
Amason asserts that in granting summary judgment, the circuit court erroneously relied on the City's attorneys' arguments as evidence and accepted the City's "version" over his complaint that the plant would pollute Calion Lake and void the surface lease. He claims that the court improperly made credibility and factual determinations, which are questions for a jury.
We disagree. As discussed above, the City offered evidence by way of affidavits and exhibits beyond its attorneys' arguments that the wastewater plant would improve the water quality in the lake-not pollute it-and Amason presented no evidence to combat that proof. When the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing a genuine issue as to a material fact. Watkins , 2012 Ark. App. 301, 420 S.W.3d 477. Because Amason has failed to meet proof with proof to rebut the City's evidence that the wastewater plant did not void the surface lease, we cannot say that the circuit court erred in granting the City's summary-judgment motion on the declaratory-judgment action.
Amason also argues that in granting summary judgment, the circuit court erroneously relied on Evans's and Harrell's statements. He asserts that their statements are inadmissible because Evans and Harrell do not qualify as experts, and their statements are not based on personal knowledge. However, Amason did not object to Evans's and Harrell's statements to the circuit court. This court will not consider arguments made for the first time on appeal. See Greenwood v. Anderson , 2009 Ark. 360, 324 S.W.3d 324. Appellant must raise an issue with specificity and make an argument to the circuit court for it be preserved on appeal. See id. Because Amason did not object to the evidence to the circuit court, we are precluded from addressing the merits of this argument.
Amason lastly argues that this court "should reverse the order granting the declaration for taking and denying the motion for an injunction." He asserts that the City's taking cannot survive if the surface lease is void and that the City acted in bad faith by condemning his property with knowledge of the surface lease's conditions on Calion Lake. However, on April 25, 2018, the court entered an agreed order on the City's motion to enforce the settlement agreement, stating that Amason accepted $ 3,810 in full satisfaction for the City's taking. Our supreme court has held that a negotiated settlement agreement reached during the pendency of an appeal renders the appeal moot. See City of Pine Bluff v. Jones , 370 Ark. 173, 258 S.W.3d 361 (2007). In this case, Amason settled the issue of the taking; thus, the issue is moot.
Affirmed.
Virden and Hixson, JJ., agree.
Harrell is the "Community and Economic Development Coordinator."
Specifically, Amason asserts that the circuit court erred by finding that (1) he did not have standing to assert the declaratory-judgment action; (2) he did not join necessary parties; and (3) the declaratory-judgment action failed to present a justiciable controversy. | [
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WAYMOND M. BROWN, Judge
Appellants Lakeside Nursing and Rehabilitation Center, Inc., and others (collectively "Lakeside") appeal from the Craighead County Circuit Court's order denying its motion to compel arbitration of claims brought against it by appellees Lourindia Rufkahr and Tiana Haley as power of attorney for and on behalf of Billie Jean Haley. We affirm.
Appellees were made power of attorney of Billie Jean Haley on October 9, 2009. There was a second power of attorney signed on December 5, 2013. Billie Jean was admitted into Lakeside Nursing Center on October 27, 2014, via an admission agreement. There was also a "Resident and Facility Arbitration Agreement" signed that day. The agreement stated in pertinent part:
This Arbitration Agreement ("Agreement") is executed by and between _____________________("Facility") and _________________________ ("Resident") in conjunction with an agreement for admission and for the provision of nursing facility services (the "Resident Admission Agreement") by the facility to the Resident. The Facility and Resident are collectively referred to herein as the "Parties." This Agreement is binding on and inures to the benefit of the Facility, the Resident and their successors, heirs, executors, administrations or assigns and survives the lives or existence of the Parties.
1. The Parties acknowledge that this Agreement is executed in conjunction with the Resident Admission Agreement and hereby stipulates that it evidences a transaction in interstate commerce governed by the Federal Arbitration Act.
2. The Parties understand and agree that all claims, disputes, demands and controversies arising out of, in connection with or relating to any way to the validity, interpretation, or performance of the Resident Admission Agreement, or any service or health care provided by the Facility to the Resident, including any and all claims for equitable relief or claims based on contract, tort, statute, warranty, or any alleged breach, default, negligence, wantonness, fraud, misrepresentation, suppression of facto or inducement ("Claims"), shall be resolved by the fullest extent permitted by federal law exclusively by binding arbitration and not by a lawsuit or resort to court process. This includes all Claims of the Resident and all Claims of the Facility[.]
3. The Parties hereby agree and stipulate that this Agreement shall be exclusively governed by and interpreted under the Federal Arbitration Act, 9 U.S.C. Sections 1 - 16 ("FAA") to the exclusion of any inconsistent state laws. It is the Parties' specified intent that all Claims (including tort claims) be resolved exclusively through binding arbitration and, in order to effectuate this intent, the Parties hereby agree and stipulate that this Agreement shall be exclusively governed by and interpreted under the FAA.
4. Arbitration may be initiated by any party or its successors, heirs, executors, administrators or assigns by sending written notice to the other party, either by personal delivery or by the use of the United States mail or other commercial delivery service, or its intention to arbitrate a Claim or Claims. The notice must set forth a description of the Claim or Claims to be arbitrated.
....
11. The Parties hereby agree and understand that this Agreement is not a condition of admission or continued stay of the Resident at the Facility. Each party has the right to consult with an attorney, at their own expense, concerning the Agreement. Further, the Resident may rescind the Agreement by giving the Facility written notice within thirty days of signing the Agreement. If not rescinded within thirty days, the Agreement shall remain in effect for all care and services subsequently rendered at the Facility, even if such care and services are rendered following the Resident's discharge and readmission to the Facility.
12. This Agreement is an election to resolve Claims by arbitration rather than judicial process. The Parties understand that the rules applicable to arbitrations and the rights of the parties in arbitration differ from the rules and rights applicable in court. IT IS UNDERSTOOD THAT THE PARTIES (BOTH RESIDENT AND FACILITY) ARE GIVING UP AND WAIVING THEIR CONSTITUTIONAL RIGHT TO A JURY TRIAL, OR TRIAL BEFORE A JUDGE, IN COURT FOR ANY CLAIM THEY MIGHT HAVE AGAINST THE OTHER PARTY. FURTHER, THE PARTIES (BOTH RESIDENT AND FACILITY) WAIVE ANY RIGHTS TO AN APPEAL FROM A DECISION OR AWARD OF DAMAGES IN ARBITRATION.
13. This Agreement shall not limit the Resident's right to file a grievance or complaint, formal or informal, pursuant to federal or state laws or regulations governing nursing home facilities with the Facility or any appropriate state or federal agency or requesting an inspection pursuant to federal or state laws or regulations governing nursing facilities.
14. This Agreement shall inure to the benefit of, and bind, the Parties and their successors, heirs, executors, administrators or assigns. With regard to the Facility, this includes any agents, employees and /or servants of the Facility. With regard to the Resident, this included all person whose Claim is derived through or on behalf of the Resident, including that of any spouse, child, parent, guardian, executor, administrator, legal representative or heir of the Resident.
15. In the event any person executes this Agreement on behalf of the Resident, said person hereby represents and warrants that he/she is a person duly authorized by the Resident to execute this Agreement and accepts its terms on behalf of the Resident.
THE UNDERSIGNED CERTIFIES THAT HE/SHE HAS READ THE AGREEMENT, UNDERSTANDS ITS CONTENTS, HAS RECEIVED A COPY OF THE AGREEMENT AND THAT HE/SHE IS THE RESIDENT OR A PERSON DULY AUTHORIZED BY THE RESIDENT OR OTHERWISE TO EXECUTE THIS AGREEMENT AND ACCEPT ITS TERMS.
Date: 10-27-14 Signature Printed Name X Billie Jean Haley ___________________ Resident X L. Rufkahr POA ___________________ Person authorized to execute this Agreement on behalf of Resident Linda Nerrira ___________________ Authorized Representative of Facility
Billie Jean remained in Lakeside from October 27, 2014, to May 20, 2015.
On November 8, 2016, appellees filed a complaint against Lakeside alleging negligence and medical malpractice. Lakeside filed an answer on December 12, 2016, denying the material allegations of the complaint and indicating that the action was covered by the arbitration agreement. Lakeside filed a motion to compel arbitration and a brief in support of the motion on August 18, 2017. Appellees filed a response and a brief in response to Lakeside's motion to compel on October 2, 2017, denying the essential allegations of the motion. Lakeside filed a reply on October 9, 2017.
A hearing on Lakeside's motion to compel arbitration took place on March 5, 2018. The court denied Lakeside's motion orally at the conclusion of the hearing. An order was entered on April 6, 2016, stating in pertinent part:
2. Defendants have the burden on their motion to compel arbitration.
3. That the arbitration agreement in this case does not identify the parties to the agreement and is, therefore, not enforceable.
4. That even if the Court were to assume that Separate Defendant Lakeside Nursing and Rehabilitation Center, Inc. is a party to the agreement, the arbitration agreement is not sufficiently broad enough to include the other named Defendants. The Court finds that such language could have easily been included to address the other entities. The Court finds that the Plaintiff had no involvement in the preparation of the purported arbitration agreement.
5. Even if the arbitration agreement was valid as to one or more of the Defendants, the mere recitation of the Federal Arbitration Act jurisdiction in the agreement is insufficient.
6. A question for the Court still exists regarding the issue of interstate commerce as it relates to the care of the patient.
7. The fact that Lakeside Nursing and Rehabilitation Center, Inc. is subject to federal regulations and involved with federal money is not sufficient to convince the Court that Plaintiff's care by one or more of the Defendants evidences a transaction involving interstate commerce.
8. Defendants have failed to meet their burden on their motion to compel arbitration and it is denied.
Lakeside filed a timely notice of appeal on May 2, 2018. This appeal followed.
Lakeside argues that that court erred in determining that (1) the FAA did not apply to the parties' arbitration agreement, (2) the parties to the arbitration agreement were not identifiable, and (3) the arbitration agreement did not apply to nonsignatories. We address Lakeside's second point first.
An order denying a motion to compel arbitration is an immediately appealable order. This court reviews an order denying arbitration de novo on the record. In reviewing an arbitration agreement courts look to state contract law to determine whether the parties' agreement to arbitrate is valid. Arbitration agreements are simply a matter of contract between the parties, and any dispute is a matter of contract construction. The same rules of construction and interpretation apply to arbitration agreements as apply to agreements generally; thus, this court will seek to give effect to the intent of the parties as evidenced by the arbitration agreement itself. The construction and legal effect of a written contract to arbitrate are to be determined by this court as a matter of law. Although we are not bound by the trial court's decision, in the absence of showing that the trial court erred in its interpretation of the law, the trial court's decision will be accepted as correct on appeal. 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.
Lakeside's argument challenging the court's finding that the parties to the arbitration agreement were not identifiable is as follows:
The Circuit Court's finding that the Arbitration Agreement "does not identify the parties to the agreement and is, therefore, not enforceable" is clear error.
Although the blanks for "Facility" and "Resident" on the first page of the Arbitration Agreement were not filled in, it is apparent that the "Resident" is Billie Jean Haley and the "Facility" is Lakeside. There is no dispute that the Arbitration Agreement was executed in connection with Billie Jean Haley's admission to Lakeside. Similarly, there is no dispute that Lourinda Rufkhar [sic] signed the Arbitration Agreement as Ms. Haley's Power of Attorney and that a representative of Lakeside signed on behalf of the facility. The Admission Agreement, which was executed on the same date, lists Lakeside as the "Facility" and identifies Billie Jean Haley as the "Resident." The parties are identifiable, and their agreement to arbitrate should be enforced.
Lakeside has failed to cite us to any authority to explain how the admission agreement can satisfy the missing party in the arbitration agreement when the admission agreement was not incorporated into the arbitration agreement. Our appellate courts will not consider arguments that are unsupported by convincing argument or sufficient citation to legal authority. Therefore, we affirm this point.
Because we have affirmed the court's finding that the arbitration agreement is unenforceable due to the parties not being identifiable, we need not address Lakeside's other two points on appeal.
Affirmed.
Gladwin and Murphy, JJ., agree.
Extendi-Care, Inc., RHC Operations, Inc., and Reliance Health Care, Inc. However, we note that there is no indication that appellant Extendi-Care played any role in the motion to compel arbitration.
This case was orally argued before this court on February 13, 2019.
Ark. R. App. P.-Civ. 2(a)(12).
Alltel v. Rosenow , 2014 Ark. 375, 2014 WL 4656609.
GGNSC Holdings, LLC v. Lamb , 2016 Ark. 101, 487 S.W.3d 348.
Courtyard Gardens Health & Rehab., LLC v. Quarles , 2013 Ark. 228, 428 S.W.3d 437.
Id.
Id.
Diamante v. Dye , 2013 Ark. App. 630, 430 S.W.3d 196.
GGNSC Holdings, supra.
Mann v. Pierce , 2016 Ark. 418, 505 S.W.3d 150. | [
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PHILLIP T. WHITEAKER, Judge
Appellant Henry Williams was convicted by a Pulaski County jury of one count of first-degree battery; his twenty-five-year sentence was enhanced by an additional three years under Arkansas Code Annotated section 5-4-702 (Repl. 2013), which provides for enhanced penalties for offenses committed in the presence of a child. On appeal, Williams argues that the circuit court should have granted his motion for directed verdict on the sentence enhancement because the State failed to prove that he committed the offense in the presence of a child. We affirm.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Carter v. State , 2019 Ark. App. 57, 568 S.W.3d 788. 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. Taylor v. State , 2017 Ark. App. 331, 522 S.W.3d 844 ; Ealy v. State , 2017 Ark. App. 35, 511 S.W.3d 355. We affirm a conviction if substantial evidence exists to support it. Taylor, supra. 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.
Substantial evidence can be either direct or circumstantial. Chatmon v. State , 2015 Ark. 28, 467 S.W.3d 731. Direct evidence is evidence that proves a fact without resorting to inference, such as when a witness testifies as to what he or she saw, heard, or experienced. Id. Circumstantial evidence is evidence from which a fact may be inferred. Id. Evidence of guilt is not less because it is circumstantial. Id. Further, circumstantial evidence may constitute substantial evidence to support a conviction. Holland v. State , 2017 Ark. App. 49, 510 S.W.3d 311.
On appeal, Williams does not challenge the sufficiency of the evidence supporting his battery conviction. His only argument concerns the sentence enhancement. As a result, we set forth the facts that support his conviction as necessary to give context to his argument.
Williams shot Jacent Winston three times in the legs while Winston was washing his truck in the front yard of his home. At the time of the shooting, eight children ranging in ages from eight to seventeen were at Winston's home awaiting a birthday party for the twelve-year-old daughter of Winston's girlfriend. Before the actual shooting, Williams engaged Winston in conversation. Williams informed Winston that he lived in a house behind Winston's, and Williams stated that he had been watching Winston "for a long time." During the conversation, Winston's daughter came outside, spoke to Winston in the presence of Williams, and returned to the home. Immediately thereafter, Williams pointed a gun at Winston's head. Winston tried to run around his vehicle but was shot by Williams and fell to the ground. After Winston fell, Williams attempted to shoot him in the head, but his gun either jammed or ran out of bullets. Hearing the gunfire, the children came out of the house onto the front porch. According to Winston, Williams then "looked up at the kids and he smiled and he walked away real slowly."
As is pertinent to this appeal, at the close of the State's case, Williams moved for directed verdict on the enhancement for committing the offense in the presence of a child. Williams argued that the State did not call any of the children who were present at the time of the shooting to testify and thus failed to prove that he knew that any children were present. The circuit court denied his motion, citing Winston's testimony that the children had been on the porch.
On appeal, Williams asserts that this ruling was erroneous. More specifically, Williams contends that the State failed to introduce evidence that would have allowed the jury to infer that he had actual, personal knowledge that there was someone under sixteen years of age at the crime scene. His argument is premised on the language of section 5-4-702, which provides, in pertinent part, that "[a]ny person who commits ... assault or battery, Ark. Code Ann. § 5-13-201 et seq., ... may be subject to an enhanced sentence of an additional term of imprisonment of not less than one (1) year and not greater than ten (10) years if the offense is committed in the presence of a child." "Child" means "a person under sixteen (16) years of age." Ark. Code Ann. § 5-4-701(1) (Repl. 2013). "In the presence of a child" means "in the physical presence of a child or knowing or having reason to know that a child is present and may see or hear an act." Ark. Code Ann. § 5-4-701(2).
Williams argues that the State failed to present evidence that he had "actual, personal knowledge that anyone under sixteen years of age was present when he shot Jacent Winston." Citing Sansevero v. State , 345 Ark. 307, 45 S.W.3d 840 (2001), and Hubbard v. State , 20 Ark. App. 146, 725 S.W.2d 579 (1987), Williams contends that the State was required to present proof that he had actual, subjective knowledge that any person at the crime scene was under sixteen years of age. We cannot agree with Williams's argument.
Sansevero and Hubbard involved second-degree-battery charges brought pursuant to Arkansas Code Annotated section 5-13-202(a)(4). A defendant charged under section 5-13-202(a)(4) must "knowingly ... cause[ ] physical injury to one he knows to be sixty years of age or older or twelve years of age or younger." (Emphasis added.) Both the supreme court in Sansevero and this court in Hubbard interpreted the phrase "knows to be" and held that when an offense requires that a defendant act knowingly with respect to the age of the victim, proof of the defendant's actual, subjective knowledge of the victim's age is an essential element of the offense that must be proved beyond a reasonable doubt. Sansevero , 345 Ark. at 312, 45 S.W.3d at 843 ; Hubbard , 20 Ark. App. at 148, 725 S.W.2d at 580.
Here, however, the enhancement statute requires proof that the defendant knew or had reason to know that a child was present at the commission of the offense. The jury was instructed on this enhancement as follows:
The State has alleged that Henry Williams committed the offense of battery in the first degree in the presence of a child. To sustain this allegation, the State must prove beyond a reasonable doubt that Henry Williams committed the offense of battery in the first degree knowing or having reason to know that a person under 16 years of age was present and might see or hear an act of battery in the first degree.
(Emphasis added.) When a statute provides that a defendant must know or have reason to know a fact, the defendant's knowledge may be inferred from the circumstances. See, e.g. , Johnson v. State , 2011 Ark. App. 718, 2011 WL 5974286 (conviction for theft by receiving affirmed when the evidence permitted an inference that the defendant had good reason to know the property was stolen ); Eaton v. State , 98 Ark. App. 39, 45, 249 S.W.3d 812, 812 (2007) ("Because intent can rarely be proven by direct evidence, the fact-finder is allowed to draw upon its common knowledge and experience to infer intent from the circumstances."). The State therefore had to present sufficient evidence about what Williams knew or had reason to know.
Here, the evidence presented at trial was sufficient to prove that Williams had reason to know that a person under the age of sixteen was present. Winston's girlfriend, Mary Holmes, testified that her four children, her niece and nephew, and Winston's two daughters were at the house that day; of the eight children, six were under the age of sixteen. Further, as noted above, Winston testified that immediately before the shooting, while Williams was in the driveway with him, one of his young daughters came out onto the porch. Winston explained that the kids all came outside when they heard the shots and came running over to check on him. On cross-examination, Winston clarified that the children were on the porch as Williams was firing at him, stating that "as I'm being chased around the truck being shot at, the children are on the porch.... I know it was at least five children on the porch. At least four or five.... They were on the porch when all of this was going down. They sat there and watched the whole thing." Winston expressly stated that after the shooting, Williams "looked up at the kids and he smiled."
The jury thus heard undisputed testimony about the presence of the children, the ages of the children, and Williams's awareness of the children. This was clearly sufficient evidence from which the jury could infer that Williams had reason to know that children under the age of sixteen were present and could see or hear the act of battery that he inflicted on Winston. We therefore hold that the circuit court did not err in denying Williams's motion for directed verdict on the enhancement for committing the offense of battery in the presence of a child.
Affirmed.
Gruber, C.J., and Vaught, J., agree.
Williams's sentence was also subjected to an additional seven years' imprisonment pursuant to Arkansas Code Annotated section 16-90-120 (Repl. 2016) for using a firearm in the commission of the crime.
Winston explained that he has two daughters, ages eight and twelve, but he did not specify which daughter came outside.
Winston properly renewed his motion at the close of the evidence.
Arkansas Code Annotated section 5-36-106(a) (Repl. 2013) provides that a person commits the offense of theft by receiving if he or she receives, retains, or disposes of stolen property of another person knowing that the property was stolen or having good reason to believe the property was stolen. (Emphasis added.) | [
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N. MARK KLAPPENBACH, Judge
Emily Armstrong appeals the order of the Pulaski County Circuit Court prohibiting her from relocating with the minor child born to her and appellee Martel Draper. Armstrong contends that the circuit court erred in interpreting the original custody order as granting the parties joint custody. We reverse the circuit court's order and remand for further proceedings.
Armstrong gave birth to the parties' son, AAD, in 2016. She and Draper were never married. Following a custody hearing in February 2017, the circuit court entered an order on April 17, 2017, providing that "[d]ue to the age of the child and the need for continued contact, the parties shall share joint legal custody of the minor child with mother being the primary custodian." The court ruled that until the child turned one year old, the visitation schedule would remain as previously ordered in the court's December 2016 order that was entered pending the final trial. That order granted Draper visitation on Monday and Wednesday evenings from 6:15 p.m. until 9:00 p.m. as well as every Friday from 10:00 a.m. until Saturday at 6:00 p.m. Once the child turned one year old, the court granted Draper visitation as follows:
a. every other weekend from Friday at 5:00 p.m. until Sunday at 5:00 p.m.
b. on the weeks that Father does not have his weekend parenting time he shall have two overnights. Unless otherwise agreed by the parties, these overnights shall be Wednesday from 8:00 a.m. until Friday at 8:00 a.m.
c. All other times by agreement. Mother expressed to the Court that Father is welcome to visit with the minor child any other reasonable time. If this turns out to be a false promise, Father may petition the Court for relief.
The order also set out Draper's child-support obligation, ruled that the parties should equally divide the cost of uncovered medical expenses, and ruled that Armstrong was entitled to claim the child each year as a tax dependent.
In June 2017, Draper filed an ex parte emergency petition for relief, alleging that Armstrong intended to relocate to Colorado with ten-month-old AAD and requesting an order prohibiting her from moving pending a full hearing on the merits. The hearing was held on December 6, 2017. Armstrong testified that when she became pregnant with AAD, her mother moved from Colorado to live with her. Her mother now wished to move back to Colorado, and Armstrong wanted to relocate with her and the child. Armstrong explained that her mother had been very instrumental in helping both her and Draper care for the child by keeping him when they were at work. In addition to having her mother's assistance in Colorado, Armstrong said that she would have support from her aunts and extended family, although they had not yet met AAD. Armstrong had a full-time job lined up in Colorado as a makeup artist with MAC Cosmetics; in Little Rock she worked part time for MAC Cosmetics and part time at a restaurant.
Armstrong said that Draper had exercised his visitation as outlined in the order, which amounts to two days a week, but there had been times when Draper had picked the child up late or ended the visitation early. Armstrong recounted a time when she left work early to pick the child up because Draper said that he was having a hard time with the child at bedtime and he was busy packing to go out of town. On another occasion, Armstrong said that Draper brought the child back to her at night because the child was sick. Armstrong testified that Draper had not exercised visitation beyond the designated times on a consistent basis. She said that there had been a few times that Draper had spent time with the child on days when he did not have visitation, but there had also been times that he did not show up when she offered a time to come by. Armstrong was concerned about leaving the child with Draper for extended periods of time because there had been issues with the child returning to her care with bad diaper rash and "smelling like an ashtray." Armstrong said that she had been the one taking the child to the doctor-aside from one appointment-and that she planned the child's meals and activities even during Draper's visitation time. She said that Draper had not been responsible with those kinds of things when the child was in his care. Armstrong said that she had not been able to rely on Draper for financial assistance because he had missed child-support payments.
Draper testified that he had made all his child-support payments through August 2017, but he had been laid off from his job in March 2017 and had not worked since then, aside from some occasional contract work. He said that he had been living off credit cards and his family helped him out, but he bought everything for the child that was needed at his house. Regarding extra visitation time as contemplated in the custody order, Draper said that Armstrong tells him that he can come visit but does not allow him to take the child. He said that it usually did not work out when he tried to come see the child because Armstrong would get back to him too late regarding a time to come. He also said that Armstrong refused to let him make up visitation time he missed on one occasion when he had to go out of town for work. Draper said that he is close with his parents, siblings, and other extended family who all live in Arkansas and spend time with the child. Draper's sister testified that the whole family is close with the child, and she tried to see him every time Draper had visitation.
After the hearing, the parties submitted letter briefs to the court disputing the proper analysis to be applied in the case. The circuit court entered an order finding that the case should be analyzed as a joint-custody case under the requirements set out in Singletary v. Singletary , 2013 Ark. 506, 431 S.W.3d 234. Under this analysis, the court found that both parties had testified that there had been no material change of circumstances and found that relocation would not be in the best interest of the child. Accordingly, the court granted Draper's request for an order prohibiting Armstrong from relocating with the child.
On appeal, Armstrong argues that the circuit court erred in finding that the parties exercised joint custody and in failing to apply the Hollandsworth presumption in favor of relocation for custodial parents with primary custody. In reviewing child-custody cases, we consider the evidence de novo, but we will not reverse a circuit court's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. McNutt v. Yates , 2013 Ark. 427, 430 S.W.3d 91. We give due deference to the superior position of the circuit court to view and judge the credibility of the witnesses. Id. 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 children. Id.
In determining whether a parent may relocate with a minor child, a circuit court must generally look to the principles set forth in our supreme court's decisions in Hollandsworth and Singletary . In Hollandsworth , the supreme court announced a presumption in favor of relocation for custodial parents with sole or primary custody, with the noncustodial parent having the burden to rebut this presumption. In Singletary , the court explained that the Hollandsworth presumption does not apply when the parents share joint custody of a child. In a joint-custody arrangement where both parents share equal time with the child, there is not one parent-child relationship to take preference over the other, and the Hollandsworth rationale is inapplicable. Singletary, supra. The proper analysis for a change-in-custody request due to the relocation of one parent in a joint-custody situation is the same as that when relocation is not involved; the court must first determine whether a material change in circumstances has transpired since the initial custody order and then whether the change in custody is in the best interest of the child. Id.
In determining whether Armstrong was entitled to the Hollandsworth presumption under the facts in this case, we first look to the language in the initial custody order. See Cooper v. Kalkwarf , 2017 Ark. 331, 532 S.W.3d 58. An order such as the one here that awards the parties joint legal custody but designates one party as the primary physical custodian is ambiguous, and it is proper to review the parties' subsequent statements and conduct. See id. Here, the evidence showed that Draper exercised his visitation two days a week as set out in the order, but he did not see the child much beyond those times. Rather than examining the parties' conduct, the circuit court here relied on the custody order, finding that "[t]here is language in the Order in this case that the percent of visitation by the Plaintiff is enhanced, and that the additional visitation promised should not be a false promise by the Defendant."
Armstrong argues that the circuit court's characterization of the order is clearly erroneous. As stated above, the order provides that in addition to the designated times, Draper would have visitation at
[a]ll other times by agreement. Mother expressed to the Court that Father is welcome to visit with the minor child any other reasonable time. If this turns out to be a false promise, Father may petition the Court for relief.
Armstrong contends that Draper's visitation was 28.5 percent of the time, or four nights out of every fourteen, and that even with other reasonable agreed upon visitation, the arrangement did not amount to joint custody.
In Cooper , the supreme court clarified its prior holdings and held that the Hollandsworth presumption should be applied only when the parent seeking to relocate is not just labeled the "primary" custodian in the custody order but also spends significantly more time with the child than the other parent. The court emphasized that a joint-custody arrangement does not necessarily involve a precise "50/50" division of time and noted that parental influence and commitment, involvement in the child's daily activities, and responsibility for making decisions on behalf of the child are important factors in the circuit court's consideration of the relocation issue. In Cooper , the supreme court reversed for an application of the joint-custody-relocation analysis because the divorce decree awarded the father visitation 42.9 percent of the time, and he also spent time with the child beyond what was awarded such that he had contact with the child on at least 60 percent of the days in a year.
Based on these standards, we conclude that the circuit court's findings were clearly erroneous. The evidence showed that Armstrong spent significantly more time with the child than did Draper. The fact that the custody order provided that Draper could "visit with the minor child any other reasonable time" did not elevate the arrangement to one of joint custody. Accordingly, we reverse and remand for the circuit court to apply the Hollandsworth presumption.
Reversed and remanded.
Harrison and Glover, JJ., agree.
Hollandsworth v. Knyzewski , 353 Ark. 470, 109 S.W.3d 653 (2003). | [
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COURTNEY HUDSON GOODSON, Associate Justice
Appellants KW-DW Properties, LLC; Debra A. Lang, in her official capacity as White County Tax Assessor; Sue Liles, in her official capacity as White County Tax Collector; certain lands being 2.363 acres, more or less, in White County, Arkansas; and any and all persons or entities claiming an interest therein (collectively KW-DW), appeal the White County Circuit Court's entry of a $ 650 deficiency judgment against the Arkansas State Highway Commission (the Commission) after a jury determined that the Commission owed KW-DW $ 36,000 for just compensation in an eminent domain action. We granted the Commission's motion to transfer the case from the court of appeals and now affirm.
I. Factual and Procedural Background
On June 21, 2016, the Commission filed a declaration taking approximately 2.363 acres of KW-DW's property. The Commission sought the land in connection with what is commonly known as the Highway 36-Highway 16 project in White County. After the Commission took the acreage needed for the highway, KW-DW's property was divided into two "remainders." The left remainder, located to the west of the future highway, consisted of approximately 5.91 acres after the taking. The right remainder totaled approximately 57.4 acres after the taking. The right remainder included a narrow, approximately two-acre peninsula running south along the highway right of way.
The Commission deposited $ 35,350 with the circuit court as the estimated just compensation for the taking. The matter proceeded to an August 30, 2017 jury trial for final determination of the compensation due. Four witnesses testified at trial. KW-DW's first witness, Adam Whitlow, testified that he is a registered professional land surveyor. Whitlow did not offer an opinion on the value of the property but testified that he was only asked to draw a boundary. Keith Webb, one of the members of KW-DW, testified that before the taking, the value of the entire tract KW-DW owned was $ 1,608,670 at $ 24,500 per acre. Webb's opinion was based in part on two recent sales of neighboring property at sales prices of $ 24,500 per acre and $ 25,000 per acre. In Webb's opinion, the value of the property after the taking was $ 1,393,500. Webb testified that he was entitled to the difference of about $ 215,000, which included the value of the property actually taken, as well as damages to the remaining land. KW-DW's expert, Diana L. Thompson, a certified general real estate appraiser, testified that the KW-DW property as a whole had a before-taking value of $ 18,000 per acre, for a total value of $ 1,181,880. Thompson acknowledged that the report of the Commission's appraiser concluded that the KW-DW property was worth $ 15,000 per acre. Thompson further testified that, after the taking, the KW-DW property was worth $ 1,023,795, for a just-compensation calculation of $ 158,085. Thompson's estimate included damages of a 75 percent reduction to the value of the left remainder and a 100 percent reduction to the value of the two-acre portion of the right remainder. David Hall, a surveyor and licensed professional engineer employed by the Commission, testified concerning the possibility of using the remaining property for residential development. Hall determined that the left remainder was suitable for ten residential lots and that the two-acre portion of the right remainder to which Thompson assigned zero value was suitable for three residential lots. Hall did not testify as to a per-acre value.
The jury determined the final, just compensation due to be $ 36,000. The Commission prepared a judgment for the court reflecting an award of $ 650 to be paid to KW-DW, which represented the difference in the jury's final award and the estimated amount deposited by the Commission. KW-DW did not agree to the proposed judgment, instead arguing that it was entitled to the full $ 36,000 in addition to the amount previously deposited. On September 14, 2017, after giving the Commission credit for the $ 35,350 already deposited with the court, the circuit court entered judgment against the Commission for the deficiency of $ 650. On September 22, 2017, KW-DW filed a motion to modify or vacate the judgment pursuant to Rule 60 of the Arkansas Rules of Civil Procedure. That motion was deemed denied after thirty days when the circuit court took no action. KW-DW filed a motion for a new trial on September 28, 2017. The circuit court denied that motion on October 3, 2017. KW-DW filed a timely notice of appeal.
II. Analysis
A. The Judgment
1. The verdict
KW-DW first argues that the circuit court erred by entering judgment for the $ 650 deficiency rather than for the full $ 36,000 reflected in the jury verdict. KW-DW argues that the circuit court was not authorized to enter judgment against the Commission pursuant to Arkansas Code Annotated § 27-67-317(b) (Supp. 2017). That section provides that
[i]f the compensation finally awarded exceeds the amount of money deposited by twenty percent (20%) or more, the court shall enter judgment against the State of Arkansas and in favor of the party entitled thereto for the amount of the deficiency and shall award the party entitled to judgment its costs, expenses, and reasonable attorney's fees incurred in preparing and conducting the final hearing and adjudication, including without limitation the cost of appraisals and fees for experts.
We agree that § 27-67-317(b) does not apply to the jury's verdict because the amount of compensation finally awarded did not exceed the deposit by twenty percent or more. However, the judgment did not cite § 27-67-317(b), and judgment was properly entered pursuant to Arkansas Code Annotated § 27-67-316, which provides in relevant part:
(a) It shall be the duty of the circuit court to impanel a jury of twelve (12) persons, as in other civil cases, to ascertain the amount of compensation the Arkansas Department of Transportation shall pay.
(b) The matter shall proceed and be determined as in other civil cases.
....
(d) Compensation shall be ascertained and awarded in the proceeding and established by judgment therein.
(e)(1) Judgment shall include, as a part of the just compensation awarded, interest at the rate of six percent (6%) per annum on the amount finally awarded as the value of the property, from the date of the surrender of possession to the date of payment, but interest shall not be allowed on so much thereof as may have been paid into court.
Although KW-DW argues that this case involves a matter of statutory construction, we disagree. The circuit court was empowered to enter judgment in favor of KW-DW pursuant to § 27-67-316. The question here is not one of statutory construction, but rather how to construe the jury's verdict, i.e., whether it was intended to be the total compensation, or intended to be $ 36,000 in addition to the amount the Commission had already deposited as the estimated just compensation.
Absent evidence to the contrary, the jury is presumed to obey the court's instructions. Pearson v. Henrickson , 336 Ark. 12, 983 S.W.2d 419 (1999). In this instance, the jury instructions included the following:
6. In arriving at the amount of just compensation to which KW-DW Properties, LLC is entitled, you first determine the fair market value of the whole property immediately before taking, and then you determine the fair market of the remaining property immediately after the taking. The compensation KW-DW Properties, LLC is entitled to recover is the difference, if any, between the fair market value of the whole property immediately before the taking and the fair market value of the remaining property immediately after the taking. In determining the fair market value of the remaining property immediately after the taking, you should consider the remaining property as if the Arkansas State Highway Commission's project is completed and permanently in place according to the construction plans now on file.
10. The difference in the fair market value of the land is the value of the land immediately before and immediately after the occurrence.
11. In determining just compensation, you may consider "severance damages" or "damages to the remainder", if any. The landowner is entitled to just compensation, not only for the full market value of the interest actually taken, but also an amount equal to any reduction of the fair market value of the landowner's interest in the land that was not taken, due to the severance or separation of the interest which was taken. Such additional compensation is commonly known as "severance damages" or "damages to the remainder."
After hearing all the instructions, the jury returned a verdict stating, "We, the jury, find and fix just compensation to be awarded to KW-DW Properties, LLC at $ 36,000." Although KW-DW argues that the verdict should be in addition to the amount deposited as an estimate, we must assume that the jury followed the circuit court's instructions. The instructions clearly stated the amount awarded should be for damages to the "whole" property after the taking and specifically instructed the jury that it could consider damages to the remaining property. KW-DW did not object to the jury instructions or request any special interrogatories. We have said that this court will not speculate on what the jury found where a general jury verdict is used. Tyson Foods, Inc. v. Davis , 347 Ark. 566, 66 S.W.3d 568 (2002). Additionally, when special interrogatories concerning liability or damages are not requested, this court is left in the position of not knowing the basis for the jury's verdict, and this court will not question or theorize about the jury's findings. Id.
KW-DW relies on Bingham v. City of Jonesboro , 89 Ark. App. 120, 201 S.W.3d 1 (2005), for its argument that the verdict amount must be construed to be in addition to the estimated deposit, but that reliance is misplaced. In Bingham , the city deposited an estimated just-compensation amount, the jury returned a verdict for a higher amount, the trial court entered judgment for the amount of the deficiency, the landowners were unsuccessful in posttrial litigation, and an appeal followed. However, in Bingham , while the jury was aware of the estimated deposit, as was the jury in this case, the parties stipulated that the Binghams were permitted to obtain the money deposited "without impairing their right to seek additional compensation." Herbert Bingham testified that he had already received the $ 21,424 but that he was still owed $ 70,514 as just compensation. Additionally, the Binghams' attorney in closing arguments asked the jury to award the "balance" over and above the $ 21,424 already paid by the city. The court concluded that the Binghams were entitled to the $ 42,297 in addition to the estimated amount already paid. Here, there was no stipulation, testimony, or argument such as that in Bingham . A plain reading of the instructions and the jury's verdict compels the conclusion that the jury's verdict must be interpreted to be the entire compensation.
It is notable that KW-DW did not seek to poll the jurors to clarify the intent of their verdict. To the extent that there was confusion in the meaning of the jury's verdict, the time for clarification was before the jury was discharged. In Spears v. Mills , 347 Ark. 932, 69 S.W.3d 407 (2002), a jury returned a verdict of zero damages in a case involving a warranty of habitability in the initial construction and repair of a house. The jury was then discharged. Minutes later, the jury returned, and the foreperson advised the court that the jurors believed they had misunderstood the interrogatory pertaining to damages. The court allowed the jury to deliberate further, and the jury later awarded damages in the amount of $ 5,900. In reversing, we stated:
[T]he time to correct a verdict based upon a claim that the jury misunderstood the instructions is prior to the jury's discharge. The jury has full power over its verdict and may amend it or recede from it at any time before the verdict has been received and recorded and before the jury has been discharged. Once the jury has been discharged and has left the presence of the court, it is without power to correct or amend its verdict.
Spears , 347 Ark. at 940, 69 S.W.3d at 413.
As in Spears , the time to correct any misunderstanding in this case was before the jury was discharged, and KW-DW's failure to do so at the appropriate time does not provide grounds to second-guess the jury's verdict now.
2. Motion to modify
KW-DW further argues that the circuit court erred under Rules 58 and 60 of the Arkansas Rules of Civil Procedure when it signed the judgment prepared and presented by the Commission without hearing KW-DW's objections and then denied KW-DW's motion for a new trial. Rule 60 authorizes a court to modify or vacate a judgment to correct errors or mistakes or to prevent the miscarriage of justice. We will not reverse the circuit court's denial of a motion to modify or vacate judgment in the absence of an abuse of discretion. Johnson v. Cincinnati Ins. Co. , 375 Ark. 164, 289 S.W.3d 407 (2008). KW-DW's motion to modify was based on (1) the circuit court's entry of judgment without holding a hearing on KW-DW's objections to the Commission's proposed judgment and (2) its argument that Bingham compelled entry of judgment for the full $ 36,000 rather than the $ 650 deficiency judgment. KW-DW cites a reporter's note to Rule 58 that says if there is a disagreement between the parties as to the form of a judgment or decree, "a court should hold a hearing to consider whatever objections there might be." Ark. R. Civ. P. 58 reporter's notes to Rule 58. However, as KW-DW concedes, Rule 58 provides that a "court may enter its own form or judgment or decree or may enter the form prepared by the prevailing party without the consent of opposing counsel." Additionally, as discussed above, Bingham is distinguishable. Therefore, the circuit court did not abuse its discretion in denying KW-DW's motion to modify.
B. Motion for a New Trial
KW-DW next argues that the circuit court erred in denying its motion for a new trial. The judgment was entered on September 14, 2017, and KW-DW filed its motion for a new trial on September 28, 2017. The circuit court denied the motion as untimely. Rule 59(b) of the Arkansas Rules of Civil Procedure requires new-trial motions to be filed within ten days after the entry of judgment. KW-DW's motion for a new trial was filed more than ten days after the entry of judgment. However, Rule 6(a) of the Arkansas Rules of Civil Procedure provides that when a prescribed time allowed by the rules is less than fourteen days, Saturdays, Sundays, and legal holidays are excluded from the computation. Excluding weekends, the motion was timely.
Although the motion was timely, it nonetheless provides no basis for reversal. As we have often stated, "[W]e will affirm a circuit court where it reaches the right result, even though it may have announced the wrong reason." Hurt-Hoover Invs., LLC v. Fulmer , 2014 Ark. 461, at 11, 448 S.W.3d 696, 703. On appeal, KW-DW argues that a new trial was appropriate because the jury award was inadequate in light of the evidence presented at trial. Rule 59(a)(5) provides for a new trial when there is an error in the assessment or amount of recovery.
Although KW-DW cites Rule 59(a)(5) for its argument that there was error in the assessment of recovery, it also makes an evidentiary sufficiency argument more properly brought in a motion for a new trial pursuant to Rule 59(a)(6), which provides for a new trial if the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law. We generally review a circuit court's decision on a motion under Rule 59 for a manifest abuse of discretion. Ford Motor Co. v. Nuckolls , 320 Ark. 15, 894 S.W.2d 897 (1995). However, when a circuit court denies a motion for a new trial on the ground that the verdict was not clearly contrary to the preponderance of the evidence, the test on appeal is whether there is substantial evidence to support the jury verdict. American Health Care Providers, Inc. v. O'Brien , 318 Ark. 438, 886 S.W.2d 588 (1994). In such instances we must view the evidence in the light most favorable to the party against whom the motion was made and must affirm if there was any substantial evidence to support the verdict. Id. Substantial evidence is that evidence which is of sufficient force and character to compel a conclusion one way or another. Id. It must force the mind to pass beyond suspicion and conjecture. Id.
Although KW-DW argues that the evidence did not support the award, the amount the jury awarded for the taking was within the range of the testimony offered by KW-DW's own expert, who testified that comparable acreage had sold from $ 9,510 per acre to $ 28,754 per acre. KW-DW argued that its remaining land was damaged, but the jury was entitled to accept or discount that. Therefore, substantial evidence supports the verdict, there was no error in the assessment or amount of recovery, and the circuit court did not abuse its discretion in denying KW-DW's motion for a new trial.
Affirmed.
The notices of appeal were filed by KW-DW "et al.," but only KW-DW has filed an appellate brief.
Before the trial, the circuit court entered an August 8, 2016 order granting KW-DW's motion to withdraw the funds deposited as the estimated just compensation and stated therein that the Commission "shall be given credit against any final determination of just compensation for the amount deposited" by the Commission and withdrawn by KW-DW.
KW-DW argues that Rule 59(a)(1)(3) and (6) provide other grounds for a new trial. KW-DW does not develop its argument but states only that "appellant offers the discussion in this section of the Argument simply for the purpose of showing the Court that Appellant's Motion for New Trial contained several factual allegations of grounds for a new trial under Rule 59(a) that were cogent and could have warranted a new trial had the merits of the Motion been considered." KW-DW did not develop any argument as to these points, and we do not address issues which are not appropriately developed. See Gray v. Thomas-Barnes , 2015 Ark. 426, 474 S.W.3d 876 (stating that we will not research or develop an argument for an appellant).
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KENNETH S. HIXSON, Judge
Appellants, Arkansas Department of Correction (ADC) and Arkansas Insurance Department, Public Employee Claims Division (PECD), appeal from a May 4, 2018 opinion by the Arkansas Workers' Compensation Commission (Commission) affirming and adopting the findings of fact and conclusions of law made by the administrative law judge (ALJ) in favor of appellees, James Jackson (Jackson) and the Death and Permanent Total Disability Trust Fund (Trust Fund). The Commission found in relevant part that Jackson was entitled to a 20 percent wage loss in addition to the 3 percent anatomical impairment rating for a total of 23 percent because the back injury was the major cause of Jackson's disability, that Jackson was not permanently and totally disabled, that Jackson's correct compensation rate was based on Jackson's contract of hire, and that PECD was not entitled to a credit due to its binding stipulation on the compensation rate at the first hearing.
On appeal, appellants contend that substantial evidence does not support the Commission's findings that (1) Jackson met his burden of proving that he is entitled to the additional 20 percent wage-loss disability and that the compensable back injury was the major cause of Jackson's disability; (2) Jackson's average weekly wage is $ 18.95 an hour for eighty hours every two weeks based on a contract of hire; or (3) appellants are not entitled to a credit for the overpayment of benefits at the erroneous wage rate. We affirm.
I. Relevant Facts
It is undisputed that Jackson sustained a compensable back injury on December 9, 2013. Jackson worked for twenty-three years as a prison guard for ADC before his accident and had been supervising twenty-six employees. On December 9, 2013, Jackson felt a pop in his back after lifting a dummy during his physical-endurance test.
Jackson was treated by his general practitioner, Dr. Simon, and was eventually referred to Dr. P.B. Simpson, a neurosurgeon. Although MRI testing showed "a herniated nucleus pulposus (HNP) at L4-5 with an acute annular tear and an L5-S1 HNP with nerve root compression," Dr. Simpson disagreed with the radiologist's opinion and diagnosed Jackson with a lumbar strain, degenerative-disc disease, and spondylosis. Dr. Simpson recommended an epidural steroid injection, physical therapy, and follow up with Dr. Simon. When Jackson's symptoms persisted, Dr. Simpson ordered a myelogram and CT scan, which were unremarkable. A functional capacity evaluation (FCE) was performed on April 8, 2014, and the results demonstrated that Jackson had the ability to work in the medium classification. Therefore, Dr. Simpson released Jackson on April 14, 2014, and assessed a 3 percent impairment rating for degenerative-disc disease.
Thereafter, in 2015, Jackson sought unauthorized treatment from Dr. Brad Thomas, another neurosurgeon, and Dr. Scott Bowen, an orthopedic surgeon. Jackson's treatment and subsequent surgery with these doctors were the subject of the first hearing with an ALJ in November 2015. At the 2015 hearing, ADC and PECD stipulated that Jackson had sustained a compensable injury at a compensation rate of $ 602/$ 452 and was entitled to medical expenses, temporary total-disability benefits until April 14, 2014, and a 3 percent impairment rating to the body as a whole as assessed by Dr. Simpson. Appellants disputed, however, that Jackson was entitled to additional benefits for any unauthorized treatments and surgery from Dr. Thomas and Dr. Bowen. In a February 4, 2016 opinion, the ALJ made the following pertinent findings:
2. The claimant's first healing period ended April 14, 2014, when Dr. Simpson released him from his care. The claimant reentered a second healing period on May 21, 2015, when Dr. Thomas performed surgery.
3. The surgery performed by Dr. Thomas was unreasonable and unnecessary in relation to the injury sustained. Therefore, the respondents [ADC and PECD] are not liable for temporary total disability benefits.
4. Dr. Simpson is an authorized treating physician and it was permissible for the claimant to return for follow-up even after his release. Respondents remain liable for Dr. Simpson's expense.
5. The claimant saw Dr. Thomas for a second opinion and should have obtained the permission of the carrier or the Commission to change physicians to Dr. Thomas. Dr. Thomas and Dr. Bowen are unauthorized physicians and respondents are not liable for expenses associated with their treatment.
The ALJ also noted that Jackson remained symptomatic even after his surgery and that repeat diagnostic testing showed a recurrent disc herniation. Jackson appealed that decision to the Commission, and the Commission affirmed and adopted the ALJ's decision on September 7, 2016. The decision was not appealed to the court of appeals.
After the Commission's 2016 decision, Jackson followed up with his general practitioner, Dr. Simon, and exercised his one-time change of physician. On April 5, 2017, Dr. Simon signed a statement explaining that Jackson was not able to work as a result of the December 9, 2013 injury and was therefore "100% disabled." The record additionally contains a follow-up letter from Dr. Simon. In that letter, Dr. Simon indicated "yes" that the "assessment of the permanent impairment or disability that Mr. Jackson now has includes the result of the back surgery that Mr. Jackson had on May 21, 2015[.]"
A second hearing with an ALJ was held on August 11, 2017. According to the June 29, 2017 prehearing order, the issues for litigation included the correct compensation rate, the loss of earning capacity, the Trust Fund's liability, and attorney's fees. Jackson claimed that he was permanently and totally disabled or suffered wage loss in excess of the impairment rating due to his age, education, and work experience. PECD disagreed and contended that Jackson had already been paid all the benefits he was entitled to receive. PECD and the Trust Fund additionally contended that benefits had been paid at an incorrect stipulated compensation rate of $ 468/$ 351 based on a mathematical wage calculation that included a one-time bonus. PECD claimed that this resulted in an overpayment of temporary total-disability (TTD) and permanent partial-disability (PPD) benefits. PECD sought a credit for any over payment based on the previously stipulated compensation rate, and the Trust Fund contended that because it was not a party to the stipulated compensation rate at the previous hearing, it should not be bound to the inaccurate compensation rate.
At the hearing, Jackson testified regarding the case history and the severity of his disability. He testified that he had not been able to work since December 12, 2013, and that he had been working as a lieutenant with ADC. ADC terminated his employment in March 2014 after Jackson's Family Medical Leave Act (FMLA) time had been exhausted. Despite applying for employment at various locations, Jackson had been unable to find employment. Therefore, Jackson claimed that he had been unable to work as a result of his 2013 injury, that he continued to have pain and physical limitations, and that he used a cane to walk. Jackson further claimed that at one point before his surgery in 2015, he had to use a wheelchair and was unable to walk. While his walking had improved since that time, he still continued to have shooting pain every day and took medication. Jackson additionally explained that his symptoms existed before and after the surgery. Initially, the 2015 surgery made him feel better; however, his symptoms eventually returned approximately a week later.
Heather Taylor testified that she is a vocational-rehabilitation counselor and that she had completed a vocational assessment for Jackson. After looking at Jackson's medical records and FCE, Taylor had found approximately ten or twelve potential jobs. However, Taylor claimed that Jackson told her that he did not think he was capable of working. Although Taylor testified that Jackson also told her that he was not going to apply for any jobs, Jackson denied making that statement. On cross-examination, Taylor admitted that in looking for potential job opportunities, she does not necessarily consider whether a person has chronic pain or limitations due to medications in her assessment. She further testified that Jackson did not tell her that he was unable to drive due to a medication he was taking. Additionally, Taylor acknowledged the fact that Jackson uses a cane to walk and that the use of a cane could have a negative impact on his prospects of finding employment.
Regarding Jackson's compensation rate, Jackson testified that he had been paid a salary and that he had been hired to work full time in alternating shifts that consisted of twenty-four hours one week and fifty-six hours the following week, totaling eighty hours every two weeks. His pay stubs reflected an hourly wage rate of $ 18.95. In addition, there was much discussion at the hearing between the ALJ and the parties regarding the wage records that had been submitted. PECD and the Trust Fund had proposed a new calculation to determine Jackson's average weekly wage using the last fifty-two weeks of his employment history. However, the Trust Fund admitted at one point that at least six of the last fifty-two weeks had to be dropped because they were not full time weeks as required by statute. Ultimately, Jackson clarified that his hours varied by the week, but regardless, he was supposed to be paid $ 18.95 an hour for eighty hours every two-week pay period. Jackson additionally testified that his salary was different over the course of employment due to his rank.
After a hearing, the ALJ filed an opinion on November 3, 2017, and made the following relevant findings:
COMPENSATION RATE
The claimant was employed at the Department of Corrections for twenty-three (23) years and at the first hearing in 2015, the claimant and respondent # 1 [PECD], the Department of Corrections, stipulated to a compensation rate of $ 602.00/$ 452.00. Benefits were paid at that rate before respondent # 2, The Fund [the Trust Fund], challenged the accuracy of the compensation rate at the second hearing. The Fund was not a party to the stipulation of the compensation rate at the first hearing.
Apparently, a one-time bonus was incorrectly included in the calculation of the compensation rate. Therefore, respondent # 1 seeks a credit for an overpayment.
Respondent # 1 is bound by their stipulation.... Therefore, I find respondent # 1 is not entitled to a credit for an overpayment.
The calculations for the compensation rate changed during the hearing.... Given that the claimant has a long work history with the respondent-employer and his salary is set by his rank, I think it is unfair to the claimant to use the recorded earnings. I find the claimant's average weekly wage should be based on his contract of hire of $ 18.95 per hour for eighty (80) hours every two (2) weeks, based on his testimony.
MEDICAL EVIDENCE
Records generated since the last hearing show Dr. Simon, the claimant's general practitioner, opine the claimant was one hundred percent (100%) disabled in his report of December 8, 2016, due to chronic low back pain. The claimant is essentially disregarding the opinions of the specialists and relying on his general practitioner's opinion.
DOCUMENTARY EXHIBITS
Wage records and Ms. Taylor's July 5, 2017, vocational assessment are included. The claimant receives Social Security Disability ($ 1,515.00/month) and state retirement benefits ($ 1,475.00/month). Ms. Taylor commented that the claimant "had no particular job interest and was unsure of any particular re-training interest."
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The claimant is a fifty-one (51) year old high school graduate with a twenty-three (23) year history as a correctional officer. He has not worked since December 12, 2013, and was terminated March 27, 2014. He unsuccessfully attempted light-duty with the respondent-employer and has looked for work elsewhere to no avail. The claimant uses a cane to ambulate and takes medication for chronic pain that makes him drowsy. His valid FCE places him in the medium work category, but the claimant doesn't feel able to work full-time. He has a three percent (3%) impairment rating.
Wage-loss is the degree to which the compensable injury has affected the claimant's earning capacity. The extent of disability is a question of fact for the Commission. The Commission is charged with assessing wage-loss on a case by case basis. Factors to be considered in assessing wage-loss include the claimant's age, education, work experience, medical evidence and other matters which may reasonably be expected to affect the workers' future earning power such as motivation, post-injury income, bona fide job offers, credibility, or voluntary termination. The award of wage-loss is not a mathematical formula but a judicial determination based on the Commission's knowledge of industrial demands, limitations, and requirements.
After reviewing the evidence, I find the claimant's age and chronic pain are factors that entitle him to wage-loss. He is unable to return to the job he has performed most of his adult life.
1. The Workers' Compensation Commission has jurisdiction of this claim in which the employee-employer-carrier relationship existed on December 9, 2013, at which time the claimant sustained a compensable injury at a compensation rate of $ 602.00/$ 452.00. Medical expenses, temporary total disability benefits (until April 4, 2014), and a three percent (3%) impairment rating as assessed by Dr. Simpson have been accepted. The claimant has a child support obligation in Drew County. This claim has been the subject of a previous hearing with Opinions entered on February 4, 2016, and September 7, 2016. The Medical Cost Containment Division approved a change of physician from Dr. K. Holder to Dr. W. Rutledge on November 21, 2016. The claimant receives Social Security Disability benefits.
2. The claimant has proven, by a preponderance of the evidence of record, that he is entitled to wage-loss in the amount of twenty percent (20%) in addition to the three percent (3%) anatomical rating for a total of twenty-three percent (23%). The compensable back injury is the major cause of disability.
3. Based on the FCE results and his transferrable skills as a supervisor, the claimant is not permanently and totally disabled.
4. The correct compensation rate is based on the claimant's contract of hire.
5. Respondent # 1 is not entitled to a credit due to their binding stipulation on the compensation rate at the first hearing.
6. As The Fund was not a party to the initial stipulation on the compensation rate, they are not bound by the stipulation agreed to by the claimant and respondent # 1.
7. If they have not already done so, the respondents are directed to pay the court reporter, Shawna Shepherd, fees and expenses within thirty (30) days of receipt of the bill.
8. This claim has been controverted and the claimant's counsel is entitled to the maximum attorney's fees to be paid in accordance with Ark. Code Ann. § 11-9-715, § 11-9-801, and WCC Rule 10.
Pursuant to the Full Commission decisions of Coleman v. Holiday Inn, (November 21, 1990) (D708577), and Chamness v. Superior Industries, (March 5, 1992) (E019760), the claimant's portion of the controverted attorney's fee is to be withheld from, and paid out of, indemnity benefits, and remitted by the respondent, directly to the claimant's attorney.
(Some internal citations omitted.)
Appellants appealed the ALJ's decision, and on May 4, 2018, the Commission affirmed and adopted the ALJ's opinion as its own. 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. This appeal followed.
II. Standard of Review
In appeals involving claims for workers' compensation, the appellate court views the evidence in the light most favorable to the Commission's decision and affirms the decision if it is supported by substantial evidence. Prock v. Bull Shoals Boat Landing , 2014 Ark. 93, 431 S.W.3d 858. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission but whether reasonable minds could reach the result found by 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. Thus, we are foreclosed from determining the credibility and weight to be accorded to each witness's testimony, and we defer to the Commission's authority to disregard the testimony of any witness, even a claimant, as not credible. Wilson v. Smurfit Stone Container , 2009 Ark. App. 800, 373 S.W.3d 347. 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. Prock, supra.
III. Wage-Loss Disability Benefits
Appellants first contend that substantial evidence does not support the Commission's findings that Jackson met his burden of proving that he is entitled to the additional 20 percent wage-loss disability and that the compensable back injury was the major cause of Jackson's disability. The crux of appellants' argument is that Jackson's unauthorized surgery amounted to a nonwork-related independent intervening cause and that because the unauthorized surgery was the major cause for any additional wage-loss disability, Jackson is not entitled to those benefits under Arkansas Code Annotated section 11-9-102(4)(F)(iii) (Repl. 2012). Appellants further argue that the Commission must have considered the surgery in awarding wage loss to Jackson because Jackson's pain and limitations were as a result of the unsuccessful surgery. Appellants additionally argue that any additional wage-loss disability is not appropriate even considering his condition before surgery. We disagree.
Permanent benefits may be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment. Ark. Code Ann. § 11-9-102(4)(F)(ii)(a). However, benefits shall not be payable for a condition that results from a non-work-related independent intervening cause following a compensable injury that causes or prolongs disability or a need for treatment. Ark. Code Ann. § 11-9-102(4)(F)(iii). The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Ark. Highway & Transp. Dep't v. Wiggins , 2016 Ark. App. 364, 499 S.W.3d 229. 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. Id. The Commission is charged with the duty of determining disability based on consideration of medical evidence and other factors affecting wage loss, such as the claimant's age, education, work experience, motivation, postinjury income, demeanor, and credibility. Id. ; Ark. Code Ann. § 11-9-522.
Here, the Commission considered appellee's age and chronic pain as factors that would entitled him to wage loss. It is also clear from the opinion that the Commission considered appellee's limited education, his lack of transferable skills based on his work history over the past twenty-three years, and his motivation, as well as other factors. After reviewing the evidence, the Commission subsequently concluded that appellee was entitled to 20 percent wage-loss disability. As part of their argument, appellants argue that the Commission considered a non-work-related injury-his surgery-in its calculations. However, there is no evidence that the Commission considered anything other than what it was asked to consider. See Ark. Highway & Transp. Dep't v. Work , 2018 Ark. App. 600, 565 S.W.3d 138. The Commission's findings are based on the appropriate wage-loss factors, and its opinion adequately discusses the rationale that underlies that finding. Moreover, the Commission found that the compensable back injury is the major cause of disability. The Commission's finding is supported by Jackson's testimony that his symptoms persisted both before and after the surgery. Additionally, Jackson has been unable to work since December 2013, which was well before his surgery in 2015, and even Dr. Simon stated in his letter that Jackson was not able to work as a result of the December 9, 2013 injury.
It is the Commission's duty to make credibility determinations and to weigh the evidence. See Work, supra. Considering the fact-intensive nature of this inquiry, in which all the specific facts of this claimant's age, abilities, education, physical and mental limitations, motivation, demeanor, and any other factor deemed relevant are to be considered, we hold that reasonable minds could conclude that Jackson was entitled to 20 percent wage-loss disability in excess of his permanent partial impairment.
IV. Average Weekly Wage
Next, appellants contend that substantial evidence does not support the Commission's finding that Jackson's average weekly wage is $ 18.95 an hour for eighty hours every two weeks based on a contract of hire. Appellants argue that the compensation rates they stipulated to at the initial hearing in 2015 were in error because the rates were calculated from a wage statement of only one pay period that happened to include a one-time bonus, making the wage calculation far greater than the wages Jackson actually earned in the fifty-two weeks prior to his injury. While the Commission agreed to modify the average weekly wage, appellants argue that the method used by the Commission was unfair and that the Commission should have calculated the average weekly wage by looking at Jackson's actual hours and earnings over the previous fifty-two weeks minus any periods with less than a full-time work week. We disagree.
Arkansas Code Annotated section 11-9-518 provides the following in relevant part:
(a)(1) Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of the accident and in no case shall be computed on less than a full-time workweek in the employment.
(2) Where the injured employee was working on a piece basis, the average weekly wage shall be determined by dividing the earnings of the employee by the number of hours required to earn the wages during the period not to exceed fifty-two (52) weeks preceding the week in which the accident occurred and by multiplying this hourly wage by the number of hours in a full-time workweek in the employment.
....
(c) If, because of exceptional circumstances, the average weekly wage cannot be fairly and justly determined by the above formulas, the commission may determine the average weekly wage by a method that is just and fair to all parties concerned.
Here, there was much discussion at the hearing regarding the accuracy of Jackson's wage records and which records should not be included in calculating Jackson's average weekly wage. Jackson testified that he was hired to work eighty hours every two weeks and that his contract rate of hire was $ 18.95 an hour, which was the rate also listed on his pay stub. The Commission, through the ALJ's opinion, found that
[t]he calculations for the compensation rate changed during the hearing.... Given that the claimant has a long work history with the respondent-employer and his salary is set by his rank, I think it is unfair to the claimant to use the recorded earnings. I find the claimant's average weekly wage should be based on his contract of hire of $ 18.95 per hour for eighty (80) hours every two (2) weeks, based on his testimony.
Substantial evidence supports the Commission's decision on this point, and the formula used by the Commission is not contrary to the applicable statute. See Pafford Med. Billing Servs., Inc. v. Smith , 2011 Ark. App. 180, 381 S.W.3d 921 ; Johnson v. Abilities Unlimited, Inc. , 2009 Ark. App. 866, 372 S.W.3d 838. As such, we affirm on this point.
V. Credit for Overpayment of Benefits
Finally, appellants contend that substantial evidence does not support the Commission's finding that appellants are not entitled to a credit for any overpayment of benefits at the erroneous compensation rate. However, appellants stipulated to the calculated compensation rate at the 2015 hearing, and the Commission found that PECD is "not entitled to a credit due to their binding stipulation on the compensation rate at the first hearing." A stipulation is an agreement between attorneys respecting the conduct of the legal proceedings. Dinwiddie v. Syler , 230 Ark. 405, 323 S.W.2d 548 (1959). However, appellants correctly state that the Commission has the discretion to allow a party to withdraw a stipulation. See Jackson v. Circle T Express , 49 Ark. App. 94, 896 S.W.2d 602 (1995) ; Ark. Code Ann. § 11-9-713.
In Jackson , the employer accepted compensability and paid benefits, and it stipulated to compensability for purposes of a hearing to determine wage-loss benefits and related medical expenses. Jackson , supra. The stipulation also was memorialized in a prehearing order. Nevertheless, the Commission allowed the employer to withdraw the stipulation as to compensability in defense of a claim for additional benefits. Id. The Commission reasoned that enforcing the stipulation was not compatible with the basic notions of justice and fair play, and we affirmed. Id.
The same cannot be said here. At the time of the stipulation, appellants should have been aware of Jackson's employment and wage history, and we cannot find that the Commission abused its discretion in failing to allow appellants to retroactively withdraw their stipulation and benefit from a mistake discovered years after the fact. See Ozark Rustic Homes v. Albright , 269 Ark. 696, 600 S.W.2d 420 (1980). Thus, we affirm on this point.
Affirmed.
Abramson and Virden, JJ., agree. | [
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JOSEPHINE LINKER HART, Associate Justice
The State appeals the Washington County Circuit Court's decision to dismiss criminal charges against Roger Jones for violation of his speedy-trial rights. However, Ark. R. App. P.-Crim. 3(d) prohibits this court from considering a State appeal from any final order unless "the correct and uniform administration of the criminal law requires review by the court." Because the circuit court's decision to dismiss the charges turned upon the specific facts of this particular case, we cannot consider the State's appeal. Accordingly, the present appeal is dismissed.
I. Background
Jones was arrested on January 29, 2017, based on allegations that Jones had sexually assaulted his two children. As part of its investigation, the State took a blanket containing apparent semen stains from a room shared by the two children and submitted it to the Arkansas State Crime Laboratory ("Crime Lab") for serology and DNA testing. The State also obtained DNA samples from Jones and the two children for comparison to whatever was on the blanket.
The first trial date was set for May 30, 2017. One hundred twenty-one (121) days would transpire between January 29, 2017 and May 30, 2017. It is undisputed that this period of one hundred twenty-one days is appropriately included in the speedy-trial calculation.
On May 30, 2017, the circuit court granted the State's motion for a continuance until August 22, 2017, on the basis that reports from the State Crime Lab had not yet been received. Eighty-four (84) days would transpire between May 30, 2017 and August 22, 2017. In its May 31, 2017 continuance order, the circuit court excluded this period of time for purposes of speedy-trial calculation.
On August 22, 2017, the circuit court granted the State's second motion for a continuance until November 2, 2017, again on the basis that reports from the State Crime Lab had not yet been received. Seventy-two (72) days would transpire between August 22, 2017 and November 2, 2017. In its August 23, 2017 continuance order, the circuit court excluded this period of time for purposes of speedy-trial calculation.
On November 3, 2017, the circuit court granted the State's third motion for a continuance until January 23, 2018, again on the basis that reports from the State Crime Lab had not yet been received. Eighty-two (82) days would transpire between November 2, 2017 (the date of the hearing on the State's third continuance motion) and January 23, 2018. In its November 3, 2017 continuance order, the circuit court excluded this period of time for purposes of speedy-trial calculation.
On January 23, 2018, the circuit court granted the State's fourth motion for a continuance until February 13, 2018, again on the basis that reports from the State Crime Lab had not yet been received. Twenty-one (21) days would transpire between January 23, 2018 and February 13, 2018. In its January 23, 2018 continuance order, the circuit court included this period of time for purposes of speedy-trial because of an apparent lack of due diligence on the part of the State. No transcript of a hearing on this motion is abstracted or otherwise contained in the record. The circuit court also ordered that there would be a bond hearing for January 29, 2018.
On January 31, 2018, the circuit court entered an order reflecting its findings and decision relating to the January 29, 2018 bond hearing. At the hearing itself, Jones had asked the court to reconsider some of its prior orders that had excluded periods of time for speedy-trial purposes because the State had failed to exercise due diligence during those periods. Based upon his understanding of the circumstances at the time, Jones argued that the Crime Lab had completed the serology report by March 2017, at which point the Crime Lab transferred the file to its DNA testing department, but the file was never assigned to an analyst and essentially sat unprocessed since that time. The circuit court agreed, released Jones on his own recognizances, and ruled that the previously excluded periods from August 22, 2017 to November 2, 2017 (72 days) and from November 2, 2017 to January 23, 2018 (82 days) would instead be included for purposes of speedy-trial calculation.
On February 13, 2018, the circuit court granted the State's fifth motion for a continuance until March 28, 2018, on the basis "that additional Crime Lab testing must be submitted and completed." Forty-three (43) days would transpire between February 13, 2018 and March 28, 2018. In its February 13, 2018 continuance order, the circuit court included this period of time for purposes of speedy-trial calculations.
On April 3, 2018, the circuit court granted a sixth motion for continuance until April 25, 2018, which would mark the beginning of a three-day trial setting, with a pre-trial hearing to occur on April 17, 2018. The circuit court's order reflected that the continuance was granted "for the reason that second round of Crime Lab testing results was completed yesterday (sic), and the parties have not yet received the results and are not ready for trial." Jones had argued at the March 28, 2018 hearing that this period of time should be included for purposes of speedy-trial because, regardless of whether the State had exhibited due diligence regarding the second round of DNA testing, the second round of DNA testing became necessary only as a result of the State's lack of due diligence regarding the first round of testing. The circuit court declined to include this period of time, reasoning that the State had shown due diligence since the last continuance with regard to obtaining the DNA results. In light of the circuit court's rulings up until this point, the State had "approximately 30 days" left to bring Jones to trial within the speedy-trial limits.
Then, on April 13, 2018, Jones filed a "Motion to Reconsider Exclusion of time for Rule 28.3 and to Dismiss for Violation of Speedy-trial," which the circuit court took up at a hearing that began on April 13, 2018 and resumed to completion on April 17, 2018. A review of Jones's motion, the hearing(s) on said motion, and the exhibits introduced at the hearing(s) showed that since the January 23 and January 29 hearings where he raised the time-inclusion argument based upon the failure of the Crime Lab's DNA department to assign the file to an analyst, Jones obtained a copy of the full Crime Lab file.
The full Crime Lab file revealed emails indicating that the prior delays were actually attributable to law enforcement and the prosecution, and not to the Crime Lab as previously understood. In particular, the Crime Lab had sought further information from the investigators in Jones's case on March 6, 2017 (apparently, the detective only submitted the sample of Jones's DNA to compare with whatever was on the blanket, and did not submit the samples taken from the other potential contributors), and that request went literally unacknowledged by anyone in the offices of either law enforcement or the prosecution until January 22, 2018, the day before the scheduled January 23, 2018 hearing, when the Crime Lab was first contacted by the prosecutor in regard to this matter. In other words, the representations made by the State to support the exclusion of time at the prior hearings (that these delays were attributable to either the Crime Lab's continued efforts or the accidental failure to assign the file to a DNA analyst) were, at the very least, made without legitimate basis. Moreover, once the blanket was actually analyzed, the Crime Lab was able to quickly exclude Jones as a potential contributor to any DNA on the blanket.
For these reasons, Jones argued, inter alia , that the time between May 30, 2017 and August 22, 2017 (84 days) that had been previously excluded for purposes of speedy-trial calculation should now be included in the calculation for a lack of due diligence by the State. The circuit court agreed. This pushed the time well over Rule 28.1's twelve-month limit, and the circuit court accordingly dismissed the charges for violation of Jones's speedy-trial rights. The State appeals.
II. State Appeal
We first must determine whether this matter is an appropriate State appeal. When the State seeks to appeal a final order in a felony prosecution, this court may not consider the appeal "unless the correct and uniform administration of the criminal law requires review by the court." Ark. R. App. P.-Crim. 3(d). "Where the trial court acts within its discretion after making an evidentiary decision based on the facts on hand or even a mixed question of law and fact," a State appeal is improper. State v. Edwards , 310 Ark. 516, 518, 838 S.W.2d 356, 357 (1992). Where "the State questions the trial court's application of our rule to the facts at hand and not its interpretation ... the appeal must be dismissed." Id.
Moreover, "[w]e have several times considered-and rejected-appeals by the State of Arkansas in which it urged us to review cases dismissed pursuant to our speedy-trial rules." State v. Owens , 2017 Ark. 362, at 4, 533 S.W.3d 582, 584 (citing State v. Johnson , 374 Ark. 100, 286 S.W.3d 129 (dismissing appeal where the issue involved the circuit court's reason for disallowing excludable time); Edwards , 310 Ark. 516, 838 S.W.2d 356 (1992) (dismissing appeal because review depended upon an application of the rule to the facts and not on interpretation of the rule); State v. Tipton , 300 Ark. 211, 779 S.W.2d 138 (1989) (dismissing appeal because challenge to trial court's decision to disallow excludable time did not involve the correct and uniform administration of the criminal law)). "In each of these cases, the fact-intensive nature of speedy-trial jurisprudence militated against this court accepting an appeal by the State." Owens , 2017 Ark. 362, at 4, 533 S.W.3d at 584.
The State argues that this case turns purely on an issue of law: the contemporaneous objection requirement for raising and preserving a speedy-trial issue, as set forth in Ferguson v. State , 343 Ark. 159, 33 S.W.3d 115 (2000). However, the State's argument is unavailing. The complicated nature of this case's procedural facts, with the circuit court having to revisit its prior decisions on multiple occasions due to later discovered misrepresentations, illustrates that this case is far from any ordinary sort. Moreover, the State's suggested basis for this court's review would not serve the "uniform administration of criminal law" in any legitimate sense. It is already well-established that one will not be penalized for failing to contemporaneously raise an issue of which he or she had no knowledge at the time. See , e.g. , Anderson v. State , 353 Ark. 384, 395, 108 S.W.3d 592, 599 (2003) ("[W]e have recognized four exceptions to the contemporaneous-objection rule ... [the second of which is] when defense counsel has no knowledge of the error and hence no opportunity to object[.]"). As was pointed out by both the prosecution and the defense below, the State had not yet provided the Crime Lab file to Jones at the time Ferguson contemplates an objection to the 84-day-inclusion at issue here; this is a particular but significant factual detail that pushes this case even further outside the realm of any uniform administration of the criminal law.
In short, Ark. R. App. P.-Crim. 3(d) simply does not allow this court to consider an appeal of this nature.
Appeal dismissed.
Womack, J., concurs. | [
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RHONDA K. WOOD, Associate Justice
Quenton King appeals his capital-murder conviction. He raises three evidentiary issues on appeal. First, King contends that the circuit court erred when it denied his motion to suppress a taped recording between him and a police detective. Second, he argues that the circuit court erroneously denied his motion to suppress evidence seized from his home because the affidavit attached to the warrant did not contain sufficient grounds for the search and seizure of the evidence. Finally, he claims that the circuit court should not have permitted witnesses to testify that the victim had planned to spend the weekend with him. We affirm.
I. Background
A jury convicted King of the capital murder of his pregnant girlfriend, Megan Price, and sentenced him to life imprisonment without parole. Price's body was discovered in her home on Sunday, June 28, 2015. Several days before Price was killed she had announced in a Facebook post that she and King had been together for fourteen years and that he was the father of her child. King was married to another woman.
After Price's body was discovered, Detective Clint O'Kelley tried to contact King. King, who was attending a memorial service with David Kincade, returned the detective's call on Kincade's cell phone. During the call, King admitted that he had a relationship with Price and that she could have been pregnant with his child. Unbeknownst to King or Detective O'Kelley, Kincade had installed a program on his phone that automatically recorded the telephone conversation.
After speaking to Detective O'Kelley, King confessed to Kincade that he had murdered Price. King told Kincade that he had made plans to spend the weekend with Price. Before the night of the murder he had disconnected some of his home-surveillance cameras. On the night of the murder, he left his house through the backdoor and walked across a field to the main road where an unidentified person picked him up and took him to Price's home. King used a key Price had left out for him to enter her house. Once inside, King shot and killed Price. Kincade later contacted police and reported what King had told him.
After taking Kincade's statement, Detective O'Kelley prepared an affidavit for a search warrant averring that there was reasonable cause to believe that evidence connecting King to the murder, including a surveillance system, was located in King's home. In the affidavit, Detective O'Kelley identified Kincade as "Witness 1" because Kincade feared retaliation by King. The surveillance DVR retrieved from King's home revealed that the channel connected to the camera positioned in the back of King's home had stopped recording on June 26, 2015, and began recording again on the evening of June 29, 2015.
Defense counsel filed a preliminary motion asking the circuit court to exclude the telephone recording between King and Detective O'Kelley and to suppress the evidence seized pursuant to the search warrant. After a hearing, the circuit court concluded that the evidence was admissible. Additionally, the State moved in limine to allow witness testimony pursuant to Arkansas Rule of Evidence 803(3) that Price had planned to spend the weekend she was murdered with King; the court granted the motion. King appeals these evidentiary rulings.
II. Telephone Recording between Detective O'Kelley and King
King first argues that the taped audio recording of the telephone conversation between him and Detective O'Kelley should have been excluded pursuant to Arkansas Code Annotated section 5-60-120. In the conversation, King admitted that he had a relationship with Price and that the child she was carrying may have been his.
Section 5-60-120 prohibits a person from intercepting and recording a telephone conversation between two parties unless that person is a party to the communication, or one of the parties has given prior consent to such interception and recording. We considered a similar situation in Elliott v. State , 335 Ark. 387, 389-90, 984 S.W.2d 362, 363 (1998). In that case the defendant's wife recorded telephone conversations between the defendant and his minor stepdaughter, which revealed that the defendant had sex with the minor. Like King, Elliott argued that section 5-60-120 precluded the tape's introduction. This court rejected that argument because while the statute makes the recording of the conversations unlawful, it "does not proscribe the admissibility of an unlawful recording." Id. at 389, 984 S.W.2d 362, 363. We reasoned that "the search and seizure clauses are restraints upon the government and its agents, not upon private individuals; the corollary to this proposition is that the exclusionary rule is not intended as a restraint upon the acts of private individuals." Id. We find this authority persuasive and affirm the circuit court's denial of King's motion in limine to exclude the audio recording.
King also argues on appeal that the recording should have been precluded pursuant to 18 U.S.C. § 2515, which is a statutory exclusionary rule that generally prohibits the introduction into evidence of illegally intercepted communications or evidence derived from illegally intercepted communications. However, King failed to make this argument to the circuit court, so it is not preserved for our appellate review. Hicks v. State , 327 Ark. 652, 941 S.W.2d 387 (1997).
III. Motion to Suppress Evidence Seized from King's Home
King next argues that the circuit court erred in failing to suppress evidence seized from King's home pursuant to a search warrant. These items include a surveillance DVR containing video of activities at his house and photographs taken by police inside and outside his home. This evidence was admitted at trial. King claims the warrant did not present sufficient grounds for the search and seizure of the evidence. In particular, he claims that the affidavit for the warrant prepared by Detective O'Kelley was insufficient because it did not provide any basis for the veracity of "Witness 1."
Arkansas Rule of Criminal Procedure 13.1(b) states that "if an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant's reliability and shall disclose, as far as practicable, the means by which the information was obtained." However, failure to establish the veracity and basis of knowledge of persons providing information is not a fatal defect if the affidavit viewed as a whole "provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place." Ark. R. Crim. P. 13.1(b) ; see also Wagner v. State , 2010 Ark. 389, 368 S.W.3d 914. The task of the judge issuing a warrant "is simply to make a practical, common-sense decision whether, given all of the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." Brenk v. State , 311 Ark. 579, 588, 847 S.W.2d 1, 6 (1993) (quoting Illinois v. Gates , 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). In reviewing a trial court's denial of a motion to suppress, we make an independent examination of the issue based on the totality of the circumstances, viewing the evidence in the light most favorable to the State. Stanton v. State , 344 Ark. 589, 42 S.W.3d 474 (2001). We reverse only if the trial court's ruling was clearly against the preponderance of the evidence. Id.
In this case, Detective O'Kelley's affidavit states that "Witness 1," who was later identified as David Kincade, had contacted investigators and informed them that King had confessed to him that he killed Price. The affidavit identifies King as the individual already charged with the capital murder of Price. According to "Witness 1," King stated he killed Price because if his wife found out that Price was pregnant with his child, his wife would divorce him, and he would lose everything. "Witness 1" also detailed how King told him that he had unplugged the surveillance cameras at his house the week before the murder and that on the night of the murder he went out of his back door and ran across a field to the main road where someone picked him up and drove him to Price's house.
This portion of Detective O'Kelley's affidavit was based on hearsay; therefore, it should have stated, but did not state, particular facts bearing on "Witness 1's" reliability. Ark. R. Crim. P. 13(b). However, considering the affidavit as a whole, there was substantial basis for a finding of reasonable cause to believe that evidence of Price's murder would be found in King's home. In addition to the information provided by "Witness 1," the affidavit states how the visibly pregnant victim, Price, was found deceased on her bedroom floor and that a few days before her death she had publicly identified King as the father of her child on Facebook. Therefore, the affiant provided information that supported the reliability and the likelihood of reasonable cause to believe that there would be a DVR in King's home that contained evidence related to the murder. Considering the information provided in the affidavit as a whole, we cannot say that it was clearly against the preponderance of the evidence for the circuit court to deny King's motion to suppress.
On appeal, King also asserts that the motion to suppress should have been granted because Detective O'Kelley failed to state in his affidavit that some of the information "Witness 1" provided to police was inaccurate. See Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) ; State v. Rufus , 338 Ark. 305, 993 S.W.2d 490 (1999). In Franks , the Supreme Court held that "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request". 438 U.S. at 155-56, 98 S.Ct. 2674. However, King did not argue to the circuit court that either Detective O'Kelley's or "Witness 1's" statements were knowingly and intentionally false or made with reckless disregard for the truth, and the circuit court did not make any findings on this issue. See Langford v. State , 332 Ark. 54, 962 S.W.2d 358 (1998). Therefore, we do not consider this argument on appeal because it was not preserved. Hicks , 327 Ark. 652, 941 S.W.2d 387.
IV. Confrontation Clause Violation
Finally, King argues that the circuit court erroneously admitted hearsay testimony regarding Price's statements that she had intended to spend the weekend she was murdered with King. He argues that the admission violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution and article 2, section 10 of the Arkansas Constitution. We find this argument unconvincing because the testimony concerned Price's intent to do something in the future, which this court has repeatedly said is admissible pursuant to Rule 803(3) of the Arkansas Rules of Evidence. State v. Abernathy , 265 Ark. 218, 577 S.W.2d 591 (1979) (holding that witness's statement that the murder victim had said she was going to meet the defendant on the night she was murdered was admissible under Rule 803(3) ); Nicholson v. State , 319 Ark. 566, 892 S.W.2d 507 (1995) (holding that the witness's statement that victim was planning to divorce defendant was admissible). Furthermore, we reject King's invitation to find that this "firmly rooted" hearsay exception violates the Confrontation Clause.
V. 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. No prejudicial error has been found.
Affirmed.
Hart, J., dissents.
Josephine Linker Hart, Justice, dissenting.
I dissent. Allowing the State to introduce the secretly recorded phone call into evidence was plainly illegal, and the detective's affidavit for the warrant to search appellant's home was constitutionally inadequate.
I. The Recorded Phone Conversation
It is basically undisputed in this matter that both Kincade's surreptitious recording of the phone call at issue and the State's use of that phone call as evidence against King at trial were illegal. Appellant argued to the circuit court before trial:
[W]e would ask in Limine, not as a matter of fourth amendment type or fifth amendment type argument, but an illegally obtained telephone conversation with my client should not be admitted into evidence and used by the State. Albeit, I'm not alleging any misconduct by the State, it's something that was done in violation of the law.
Appellant's argument to the circuit court was and is entirely correct. The law expressly provides that it is illegal to intercept and either record or possess a recording of a phone conversation between two other people without prior consent from either of those people, such as the recording at issue here. The law expressly provides that it is illegal for any court to receive any evidence of the contents, or any evidence derived from the contents, of a recorded phone conversation if the contents were knowingly acquired through the use of an electronic device and then intentionally disclosed to another person, such as the evidence at issue here.
The majority's averment that this court must shield its eyes from such manifestly applicable authority, purportedly because that authority is "outside the nature and scope" of the arguments presented below, is troubling. This court has repeatedly said that the only thing necessary to preserve an issue for appeal is a "specific objection." E.g. , Ellison v. State , 354 Ark. 340, 344, 123 S.W.3d 874, 876-77 (2003). The objection "need not cite specific rules to be sufficient." Id. (emphasis added). As set forth in the excerpt above, Appellant's argument to the trial court was as specific as it could conceivably be without citing the actual rule itself. Furthermore, Elliott v. State , a case that the parties discussed at length with the circuit court before trial and which the circuit judge himself described as a personal "research project" he undertook before ruling on this issue, addressed some of the same title, chapter, and section provisions of federal law that the majority now refuses to consider on appeal. 335 Ark. 387, 389-90, 984 S.W.2d 362, 363 (1998). This court should just apply the law.
II. The Affidavit for the Warrant to Search King's Home
Additionally, the affidavit used to obtain the warrant to search King's house was constitutionally infirm. The sufficiency of an affidavit for a search warrant is governed by the totality-of-the-circumstances test set forth in Illinois v. Gates , 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). "The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. " Id. at 238, 103 S.Ct. 2317 (emphasis added). "If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant's reliability and shall disclose, as far as practicable, the means by which the information was obtained." Ark. R. Crim. P. 13.1(b) (emphasis added). Furthermore, "when an officer omits facts from an affidavit, the evidence will be suppressed if the defendant establishes by a preponderance of the evidence that: 1) the officer omitted facts knowingly and intentionally, or with reckless disregard, and 2) the affidavit, if supplemented with the omitted information, is insufficient to establish probable cause." State v. Rufus , 338 Ark. 305, 314-15, 993 S.W.2d 490, 495-96 (1999) ; see also Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The exclusionary rule's purpose "is to deter -to compel respect for the constitutional guaranty in the only effectively available way-by removing the incentive to disregard it. " Elkins v. United States , 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) (emphases added).
Here, the "facts constituting reasonable cause" alleged in Detective O'Kelley's affidavit seeking a warrant to search King's home consisted of the following ten sentences:
1. The affiant states that on June 28, 2015 at 1113 hrs, the North Little Rock Police Department received a 911 call to 1117 N Oaks Lane in reference to a deceased person.
2. The affiant states that upon officer's arrival they made entry to the house located at 1117 N. Oaks and observed a female lying on the floor, naked and visibly pregnant. She appeared to have a gunshot wound to the head.
3. The affiant states that the victim's phone was missing from her house.
4. The affiant states Investigators learned the victim had recently put a post on Facebook identifying Quenton King as the father of her unborn child. The post had been taken down prior to police being notified of this incident.
5. The affiant states that on July 7th, 2015 Investigators made contact with Witness 1 who stated Quenton King confessed to him that he killed Megan Price.
6. The affiant states Witness 1 stated Quenton King stated he did it because if his wife found out Megan was pregnant with his child she would divorce him and he would lose everything.
7. The affiant states Witness 1 stated Quenton King told him that he unplugged his cameras at his house (12717 Secretariat) one week before the incident.
8. The affiant states that Witness 1 stated Quenton King told him the night of the incident he went out his back door and ran across a field to the main road where someone picked him up and took him to the victim's house.
9. The affiant stated Quenton King has been charged with 2 counts of Capital Murder for his involvement in this incident.
10. The affiant states he will assist in the execution of this warrant.
[End of excerpt.]
There are a number of problems with Detective O'Kelley's affidavit. Most obvious is that, in relying (heavily) on hearsay evidence from "Witness 1" without presenting any information concerning Witness 1's veracity, reliability, or basis of knowledge, the affidavit is in plain violation of Ark. R. Crim. P. 13.1(b) and Gates , 462 U.S. at 238, 103 S.Ct. 2317. Not so long ago, this circumstance alone would have required suppression of any evidence seized as fruits from the warrant. See generally Aguilar v. Texas , 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) (abrogated by Gates ); Spinelli v. United States , 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) (abrogated by Gates ).
Moreover, as Detective O'Kelley acknowledged at the omnibus hearing, his affidavit omitted other information that was of particular relevance to his request for a warrant to search King's home. For example, the detective included Witness 1's allegation that King confessed to the murder but chose not to include Witness 1's allegation that King said he shot the victim first in the stomach and then the head, when the detective knew that the victim was shot only in the head. This is a significant circumstance. If King confessed to Witness 1, there would be no apparent explanation as to why Witness 1 (through King himself, according to the affidavit) would have gotten that part wrong.
Additionally, King argued at trial that it was disingenuous for the detective to include Witness 1's allegation that King "went out the back door and ran across a field " to meet someone who took him to the victim's house, without also acknowledging that King was still recovering from "ten to fifteen" gunshot wounds to his abdomen, arms, and hands that King had recently suffered in an unrelated incident, which would have made it difficult for him to be "running" anywhere.
These circumstances, had they been included in the detective' affidavit as the law contemplates, would have rendered any allegation from Witness 1 unreliable. The State bears the burden of proof here, and without any corroborating information as to veracity, basis of knowledge, or identity, Witness 1's account adds up to demonstrably mistaken allegations about a deceased person from an unidentified person whom the reviewing judge knows literally nothing about. Moreover, the willful omission of these circumstances from the affidavit takes this case outside the realm of any "good-faith" exception to the exclusionary rule. See United States v. Leon , 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Additionally, the majority's suggestion that King somehow failed to raise this issue is simply misplaced. King rigorously cross-examined the detective and the parties argued at length about these circumstances at the omnibus hearing before trial.
Other than Witness 1's account of King's confession, the only information alleged in the affidavit that even relates to King is the information in paragraph 4 about the victim's Facebook post. The detective's rationale for including this information is readily apparent. His affidavit posits a theory of criminal activity whereby a woman announces on Facebook that she is pregnant and that a particular married man is the father. The married man's fear of his wife's reaction and a potential divorce over the woman's newly announced pregnancy gives the man a motive to kill the woman. So, the man hatches a plan whereby he turns off the cameras at his house and has another individual transport him to the woman's house so that he can kill her without being noticed.
However, this theory would be substantially undercut if the affidavit had reflected that the security cameras at King's house were turned off before the victim made the Facebook post. It is most conspicuous, then, that the detective included at paragraph 7 Witness 1's specific allegation that "King told him that he unplugged his cameras at his house (12717 Secretariat) one week before the incident[,]" but earlier at paragraph 4 only generalized that "Investigators learned the victim had recently put a post on Facebook identifying Quenton King as the father of her unborn child."
In fact, it appears that there is literally no mention of the specific time and date of the victim's Facebook post contained in the entire record. This seems inexplicable, even with the post having been deleted, considering that one of the police officers who testified at trial acknowledged on the witness stand that he took a screenshot of the victim's Facebook post just one hour after it was posted and gave that screenshot to Detective O'Kelley on the Monday following the weekend of the victim's death. In short, every apparent circumstance suggests that the detective had this information when he drafted the affidavit and deliberately omitted it.
The propriety of a search warrant must be assessed considering the circumstances at play when the search warrant is requested. Moreover, the fact that there is no mention of the specific time and date of the victim's Facebook post contained in the entire record, when it seems so inescapable that such information was available, is extremely troubling in the context of this case. The State's improper characterization of the known circumstances to obtain the search warrant at issue here must be deterred.
I dissent.
In addition to the DVR and the photographs, a printout summarizing the activity viewed on the DVR was also admitted.
See Ark. Code Ann. § 5-60-120(a) ("It is unlawful ... to intercept a ... telephonic communication ... and to record or possess a recording of the communication unless ... one of the parties ... has given prior consent[.]").
See 18 U.S.C.A. § 2515 (prohibiting receipt of any evidence of the contents of "any wire or oral communication [that] has been intercepted ... or evidence derived therefrom ... in any trial ... before any court ... if the disclosure ... would be in violation of this chapter ") (emphases added); Id. § 2510(4) (defining "intercept" for purposes of this chapter as "acquisition ... through the use of any electronic ... device[;]"); Id. § 2511(1)(c) (prescribing a violation of this chapter where one "intentionally discloses ... to any other person the contents of any wire, oral, or electronic communication ... having reason to know that the information was obtained through ... interception").
Obviously, paragraph 9 indicates that King had been charged, but the fact that an individual has been charged with a crime has no bearing upon guilt, innocence, or any actual evidence of criminal activity.
Obviously, the printouts entered into evidence at trial indicate that the DVR lost connection to the security cameras on June 26, 2015 and regained connection on June 29, 2015. However, this information was only obtained through the execution of the search warrant; it was not available before then. | [
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PHILLIP T. WHITEAKER, Judge
Appellant Donald Cagle entered a conditional plea of guilty to one count each of possession of methamphetamine with purpose to deliver and possession of drug paraphernalia. His conditional plea reserved his right to appeal from the circuit court's denial of his motion to suppress evidence. On appeal, Cagle contends that the initial traffic stop of his vehicle was invalid and that the subsequent search of his vehicle was unlawful. We find no error and affirm.
I. Background
Cagle was pulled over for alleged traffic violations by Officer Keith Shelby of the Fort Smith Police Department. During the traffic-violation investigation, Officer Shelby conducted a canine search and found contraband in Cagle's car. Cagle was arrested on charges of possession of methamphetamine with purpose to deliver and possession of drug paraphernalia. Cagle subsequently filed a motion to suppress the evidence seized during that traffic stop. The circuit court held a hearing on Cagle's suppression motion and subsequently entered an order denying Cagle's motion to suppress. Cagle then entered a conditional plea of guilty pursuant to Arkansas Rule of Criminal Procedure 24.3(b), reserving his right to appeal the denial of his suppression motion. The circuit court sentenced him to ten years in the Arkansas Department of Correction with an additional ten years' suspended imposition of sentence. Cagle filed a timely notice of appeal and now urges that the circuit court's denial of his suppression motion was erroneous.
II. Standard of Review
When reviewing a circuit court's 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 the inferences drawn by the circuit court. Bathrick v. State , 2016 Ark. App. 444, 504 S.W.3d 639. A finding is clearly erroneous when, even if 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. Prickett v. State , 2016 Ark. App. 551, 506 S.W.3d 870. We defer to the circuit court's superior position in determining the credibility of the witnesses and resolving any conflicts in the testimony. Pickering v. State , 2012 Ark. 280, 412 S.W.3d 143. We now turn our attention to the evidence before the court at the suppression hearing.
III. The Suppression Hearing
Cagle filed a motion to suppress, alleging that the initial traffic stop was invalid pursuant to Arkansas Rule of Criminal Procedure 3.1 and that the subsequent search of his vehicle by a canine officer followed an "unlawfully prolonged" delay. At the motion hearing, the circuit court heard evidence that Shelby effectuated a traffic stop of a Chevy Tahoe driven by Cagle. Shelby observed the Tahoe traveling northbound. Cagle initially had his turn signal on; however, when he saw Shelby and his marked patrol unit, he "acted nervous, turned his blinker off, and kept going straight." Based on this, Shelby pulled in behind the Tahoe and ran its tags. Shelby discovered that there was no insurance on file for that vehicle and began to follow the Tahoe. Cagle turned into a Mini Mart parking lot without activating his turn signal one hundred feet before the turn, according to Shelby. Shelby believed that Cagle was trying to evade him, so he pulled in behind the vehicle at the gas pump and activated his blue lights.
Cagle got out of his car and appeared nervous and acted as though he did not want Shelby looking in the vehicle. Shelby asked multiple times for consent to search the vehicle, which Cagle eventually denied. Shelby then got his canine out of his car and had the dog perform a sniff of Cagle's vehicle. The dog alerted twice on the Tahoe, and Shelby's subsequent search uncovered a "rather large bag" of methamphetamine and a meth pipe. The court reviewed a video of the incident. According to the video, no more than eight minutes elapsed between Shelby's initial contact with Cagle and the discovery of the drugs.
IV. Validity of the Traffic Stop
In its order denying Cagle's motion to suppress, the circuit court found that four separate issues justified Shelby's decision to stop Cagle's vehicle: (1) Cagle's "last-second decision" to abandon his turn when he saw the officer's vehicle; (2) the lack of valid insurance on Cagle's vehicle; (3) Cagle's failure to activate his right-hand-turn signal more than one hundred feet before his turn into the gas-station parking lot; and (4) the totality of the previous circumstances leading Shelby to believe that Cagle was attempting to evade or avoid him. The court found that the "possible insurance violation and the obvious turn signal violation in and of themselves individually justified the traffic stop." On appeal, Cagle challenges each of the factual underpinnings for the court's conclusion that Shelby had probable cause to stop Cagle's vehicle.
Our supreme court has settled that a police officer may stop and detain a motorist when the officer has probable cause to believe that a traffic violation has occurred. Pokatilov v. State , 2017 Ark. 264, at 9, 526 S.W.3d 849, 856 (citing Burris v. State , 330 Ark. 66, 71, 954 S.W.2d 209, 212 (1997) ). Probable cause exists when the facts and circumstances within an officer's knowledge are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected. Hudson v. State , 316 Ark. 360, 872 S.W.2d 68 (1994) ; Johnson v. State , 299 Ark. 223, 772 S.W.2d 322 (1989). In assessing the existence of probable cause, our review is liberal rather than strict. Brunson v. State , 327 Ark. 567, 940 S.W.2d 440 (1997). The relevant inquiry is whether the officer had probable cause to believe that the defendant was committing a traffic offense at the time of the initial stop. Pokatilov, supra . Whether a police officer has probable cause to make a traffic stop does not depend on whether the driver was actually guilty of the violation that the officer believed to have occurred. Stuart v. State , 2017 Ark. App. 356, at 5, 525 S.W.3d 494, 497 (citing Travis v. State , 331 Ark. 7, 959 S.W.2d 32 (1998) ).
Although Cagle addresses each of the factors on which the circuit court relied, we address only the lack of valid insurance on Cagle's vehicle. Arkansas Code Annotated section 27-22-104(a)(1)(b) (Repl. 2014) provides that it is "unlawful for a person to operate a motor vehicle within this state unless the motor vehicle and the person's operation of the motor vehicle are each covered by ... [a]n insurance policy issued by an insurance company authorized to do business in this state." Section 27-22-104(a)(2)(A) provides, in pertinent part, 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."
In Small v. State , 2018 Ark. App. 80, 543 S.W.3d 516, this court affirmed the denial of a motion to suppress when the officer initiated a traffic stop after he ran the defendant's tags and discovered that the defendant's insurance had been canceled. Citing the above statute, we expressly held that "[t]he lack of insurance information in the database was sufficient to provide Officer Hoegh with probable cause to believe that a traffic violation had occurred." Id. at 9, 543 S.W.3d at 522.
Cagle does not challenge the factual underpinning of the circuit court's finding that the Vehicle Insurance Database reflected that he had no insurance on the Tahoe he was driving. Instead, he asks this court to overrule Small , relying on the dissenting opinion's concerns with the reliability of the information in the database. As the State notes, however, Officer Shelby testified below, without objection, that he routinely runs tags for proof of insurance, and in his experience, the database is accurate more than 90 percent of the time. Although the appellate courts have the power to overrule previous decisions, we will uphold them unless great injury or injustice would result. Houghton v. State , 2015 Ark. 252, at 12, 464 S.W.3d 922, 930 (citing Bharodia v. Pledger , 340 Ark. 547, 11 S.W.3d 540 (2000) ). Cagle, as the party asking us to overrule a prior decision, has the burden of showing that our refusal to overrule the prior decision would result in injustice or great injury. Id. Cagle has made no such showing here. Accordingly, we decline to overrule Small .
Further, pursuant to Small , the lack of insurance information in the database was sufficient to provide Shelby with probable cause to believe that a traffic violation had occurred. Accordingly, the circuit court's reliance on this fact to deny Cagle's motion to suppress is affirmed.
V. Validity of Vehicle Search
In his second argument on appeal, Cagle argues that, even assuming that the traffic stop was lawful-which, as addressed above, it was-the subsequent search of his vehicle was unlawful for two reasons: (1) Shelby decided to search the vehicle based solely on Cagle's invocation of his Fourth Amendment rights, and (2) Shelby had abandoned his investigation of the insurance-coverage violation-i.e., the purpose of the stop-by the time he decided to run his drug dog around Cagle's vehicle.
Cagle's first argument is not preserved for our review. At the suppression hearing, the court heard evidence that Shelby requested permission to search Cagle's Tahoe. Cagle responded that he wanted to speak to his attorney first and eventually denied consent. Cagle did briefly raise the argument that Shelby searched his vehicle because of the invocation of his constitutional right at the suppression hearing. The circuit court, however, did not make a ruling on this issue in its order denying Cagle's motion to suppress. The failure to obtain a ruling on an issue at the circuit court level, including a constitutional issue, precludes review on appeal. See Van Winkle v. State , 2016 Ark. 98, at 15, 486 S.W.3d 778, 788 ; Huddleston v. State , 347 Ark. 226, 61 S.W.3d 163 (2001).
Cagle's second argument is that the purpose of the stop-to determine whether Cagle had insurance on his vehicle-had ended by the time Shelby decided to run his drug dog around the Tahoe. 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 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. However, after those routine checks are completed, unless the officer has a reasonably articulable suspicion for believing that criminal activity is afoot, continued detention of the driver can become unreasonable. Id.
Our supreme court has held, however, that a stop is not completed until the driver's license and any accompanying paperwork is returned. Jackson v. State , 2013 Ark. 201, at 6, 427 S.W.3d 607, 612 ; Menne v. State , 2012 Ark. 37, 386 S.W.3d 451. Cagle concedes that he had not produced his insurance paperwork by the time Shelby retrieved his dog, Ringo, from his police vehicle. He nonetheless asserts that Shelby "unreasonably prolonged" the detention in order to conduct the canine sniff. The circuit court reviewed a copy of Shelby's dashcam video, finding that less than seven minutes elapsed between the initial contact between Cagle and Shelby and the canine sniff. The circuit court noted that the first three and a half minutes of the stop were spent "engaged in conversation involving insurance coverage and other matters, primarily small talk." The court further found that "[a]t the time the search began the insurance issue had not been resolved as [Cagle] can still be observed holding papers and rifling through them in a search for his proof of insurance."
Our review of the dashcam video supports the circuit court's factual findings on this point. The encounter lasted less than eight minutes, and by the time the dog sniff was conducted, Shelby still had not retrieved any insurance paperwork. Because the purpose of the stop had not concluded by the time Shelby deployed his drug dog, the circuit court did not clearly err in concluding that the detention of Cagle was not unreasonably prolonged. See Sims , supra ; see also Illinois v. Caballes , 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (holding that the use of a well-trained narcotics-detection dog-one that does not expose noncontraband items that otherwise would remain hidden from public view-during a lawful traffic stop generally does not implicate legitimate privacy interests). We therefore affirm the circuit court's denial of Cagle's motion to suppress.
Affirmed.
Virden and Klappenbach, JJ., agree.
We previously ordered rebriefing in order to address a deficiency in Cagle's addendum. Cagle v. State , 2018 Ark. App. 623, 2018 WL 6520859. That deficiency has been resolved, and the matter is now properly before us.
In his motion to suppress and at the suppression hearing, Cagle argued that Shelby had illegally accessed the Vehicle Insurance Database; however, he has abandoned this argument on appeal. | [
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LARRY D. VAUGHT, Judge
Jennifer Wright appeals the order entered by the Sebastian County Circuit Court terminating her parental rights to three of her children, BW (born April 11, 2003), AW (born May 31, 2005), and EW (born June 30, 2007). On appeal, Wright contends that the circuit court clearly erred in finding that statutory grounds supported termination and that termination was in her children's best interest. We affirm.
On September 13, 2015, the Arkansas Department of Human Services (DHS) exercised a seventy-two-hour hold on Wright's four children-JR (born December 30, 2000), BW, AW, and EW -based on allegations that Wright slapped JR in the face during an argument about a lack of food in the home. DHS filed a petition for emergency custody alleging that the juveniles were dependent-neglected due to abuse, neglect, and parental unfitness. The affidavit of a DHS caseworker accompanying the petition stated that there was very little food in the home, Wright admitted striking JR, Wright was arrested for third-degree domestic assault, and she admitted using marijuana. The circuit court entered an ex parte order of emergency custody.
Following an adjudication hearing, the circuit court found that the children were dependent-neglected due to neglect and parental unfitness. The circuit court continued the custody of the children with DHS and established reunification as the goal of the case. Wright was ordered to maintain stable housing, income, and transportation; complete parenting classes; complete a drug-and-alcohol assessment and follow any recommendations from that assessment; submit to random drug screens; resolve her criminal issues; visit the children regularly; and take her medication as directed.
Review-hearing orders were entered in December 2015 and May and August 2016. In these orders, the circuit court found that Wright was complying with the case plan in that she had maintained stable housing, income, and transportation; completed parenting classes; visited BW, AW, and EW; submitted to random drug testing and two hair-follicle tests; resolved her criminal issues; and attended a psychological evaluation. She was ordered to take her medications, continue counseling, and obtain her driver's license. In these orders, DHS was found to have made reasonable efforts to achieve the goal of reunification by referring Wright for a psychological evaluation and a drug-and-alcohol assessment; referring the children for counseling and PACE evaluations; and providing clothing vouchers, transportation, medical services, and visitation. Reunification remained the goal of the case.
A permanency-planning order was entered by the court on September 27, 2016, wherein the court found that Wright had a home, income, and transportation; completed parenting classes; attended a drug-and-alcohol assessment; attended group therapy; and submitted to drug screens. The court further found that Wright needed to obtain a driver's license, continue group therapy, visit the children, take her medication as directed, and continue participating in JR's therapy. The court stated that Wright needed budgeting assistance and ordered DHS to assist with that need.
In December 2016, DHS recommended that Wright have a trial home placement with BW, AW, and EW. In February 2017, the circuit court entered a fifteen-month review order wherein the court found that Wright had housing, income, a driver's license, and transportation; tested negative on drug screens; and completed parenting classes and a drug-and-alcohol assessment. Wright was directed to participate in counseling with JR as recommended and obtain tags for her vehicle. DHS was ordered to assist with obtaining Wright's medication. Reunification remained the goal of the case, but the court also found that concurrent planning in the form of Another Planned Permanent Living Arrangement (APPLA) was appropriate for JR. The circuit court found that DHS had made reasonable efforts to finalize a permanency plan for BW, AW, and EW.
In an April 2017 review order, the circuit court ended the trial home placement of AW because of concerns about AW's behavior and the risks it posed for both her and Wright if AW remained in the home. The court found that AW and JR should continue in the custody of DHS but that BW and EW would remain in Wright's custody. The circuit court determined the case goal was "family preservation" for BW and EW, reunification for AW, and APPLA for JR. The court found that DHS had made reasonable efforts with the services and that Wright was in compliance with the case plan because she had a driver's license, transportation, income, and housing. However, the court noted that "it would like to see more stable housing and income long term."
In July 2017, the circuit court entered a second permanency-planning order finding Wright had legal custody of BW and EW, but the children's aunt, Vicky Granlun, had physical custody of them because Wright did not have housing. JR and AW were ordered to remain in the custody of DHS. The goal of the case remained the same, and DHS was found to have made reasonable efforts to provide family services to achieve the goal of reunification, including the additional services of a trial home placement, home visits, and homemaking services.
In October 2017, the circuit court entered a review order finding that Wright did not have stable housing, income, or transportation. The court continued legal custody of BW and EW with Wright but gave Granlun physical custody of them. The circuit court also found that DHS had made reasonable efforts to achieve permanency goals and APPLA. The court ordered sibling counseling with the addition of Wright and Granlun as recommended by the children's therapist.
On November 16, DHS filed a second emergency petition alleging that on November 13, the children's uncle, Franklin Victor Richardson, had slapped BW in the face twice. Richardson was arrested and charged with third-degree domestic battery. DHS alleged Granlun was advised at a November 9 staffing that Richardson, along with two other men, should not be in the home with BW and EW; all three men were in the home in the week leading up to the November 13 incident; and Granlun failed to protect BW and EW. The circuit court entered an emergency order returning BW and EW to foster care.
In a combined probable-cause and review order entered on November 28, the circuit court continued the children in foster care and found that the goal of the case for JR would continue to be APPLA but that adoption and permanent custody with a relative was the appropriate goal for BW, AW, and EW. The court further found that Wright did not have stable housing, income, or transportation and had outstanding criminal issues, which included fines.
In January 2018, the circuit court entered an adjudication order finding that BW and EW were dependent-neglected based on Granlun's inadequate supervision and Wright's lack of adequate housing. The goal was adoption and permanent custody for all four children with APPLA as an additional goal for JR. On April 9, DHS filed a petition for termination of Wright's parental rights to all four children. DHS alleged that termination was in the best interest of the children and that termination was warranted under the subsequent-factors ground, Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) (Supp. 2017), and the aggravated-circumstances ground, Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(3)(A) & (B)(i) .
At the onset of the termination hearing, DHS withdrew its request to terminate Wright's parental rights to JR and proceeded to terminate Wright's parental rights to BW, AW, and EW. Wright testified first, stating that since January 2018, she had been living in a three-bedroom apartment. She acknowledged that during the case, she had lived in eleven homes. She explained that she moved to better her situation but did not have the financial security to maintain a home throughout the case. Wright also testified that she had eight jobs during the case. She said that she lost some of those jobs and that she took other jobs to make more money. She stated that at the time of the termination hearing, she was employed at OK Foods and had been working there for six months. Wright also conceded that during the case she did not have transportation for five months but that she had a car at the time of the termination hearing. She added that her driver's license has been suspended three or four times because of unpaid fines, but it was no longer suspended, and she was current on all her driving-related fines.
Wright stated that she was not enrolled in counseling and had "mostly" forgotten to take her Prozac during the case. She also said that she never tested positive for drugs during this case and that she regularly visited with EW. She had not visited the older children in a year because their therapist did not recommend it. Wright testified that it was unfair to say her relationship with her children deteriorated during the case when she had not been able to visit them. Wright stated that she did not want her parental rights terminated and that she wanted all four children returned to her home. She said that she was ready for EW to be placed in her home on the day of the hearing.
Natosha Lowery, Wright's DHS caseworker from October 27, 2015, to December 1, 2016, testified that Wright's primary problem was a lack of stability. DHS provided services to Wright, and in December 2016, Lowery recommended a trial placement with BW, AW, and EW. According to Lowery, JR was not part of the trial placement because she did not want to visit her mother.
Tehrina Means, Wright's caseworker from December 2016 to March 2018, testified that when the trial placement started, Wright had a home, a job, and transportation. According to Means, things deteriorated during the placement. AW had issues in Wright's home, and the court ended her placement. Then Wright changed jobs, changed cars, got behind on rent, and moved. She did not take the children to their counseling appointments, and she did not attend her counseling appointments. Means stated that she learned that BW, AW, and EW were living with different relatives and did not know where Wright was living. DHS stepped in and placed the children with Granlun. However, that arrangement ended in November 2017 when BW was slapped in the face by Richardson in Granlun's home. Means further testified that she did not recommend another trial placement with Wright due to her instability and the older children's refusal to live with Wright. Means said that EW was the only child who wanted to see Wright.
Savannah Robinson, Wright's current caseworker, testified that DHS's primary concern is Wright's lack of stability. Robinson stated that there has been a clear pattern of Wright's achieving stability in housing, employment, transportation, and paying the bills, but she is unable to maintain it, which causes emotional and physical stress on the children. Robinson said that the longest Wright has been able to sustain stability is six months and that the failed trial placement is an example of her concern. Robinson testified that because of Wright's history, she does not consider Wright's having the same housing, employment, and transportation for six months evidence of stability.
Robinson acknowledged that EW wants to visit her mother and that they have a bond; however, Robinson stated that the risk of harm to EW outweighed the benefit of maintaining the relationship. Robinson said that because of Wright's history, she did not believe Wright could parent EW and that the stress of instability on EW would be harmful to her. Robinson stated that JR, BW, and AW do not want to visit or work out their problems with their mother. Robinson also testified that the children are adoptable. She said that they are a "handful" but that they are sweet and do not have any medical issues.
BW, AW, and EW's therapist, Sheryle Hollingshead, testified that the children do not reflect positively on their childhood, they have suffered emotional trauma due to their "chaotic upbringing," and AW and EW have nightmares about things they experienced with their mom. Hollingshead stated that EW reported that she wanted to live with her mother but added, "I know that if I go and live with my mom eventually we're not going to have any electricity, we're not going to have food, and we're not going to have the things that we need." Hollingshead testified that BW and AW do not want to live with their mom, and she did not force them to visit Wright or have family therapy with her because they were "adamant" that they did not want it.
CASA volunteer Ruth Dudding testified that she has concerns about Wright's instability because she had multiple jobs and homes during the case. Dudding testified that six months is not an extended time to demonstrate stability considering that Wright was caring only for herself during that time. Dudding added that when Wright had stability before the trial home placement, it fell apart when the children were returned to her custody.
At the conclusion of the hearing, the circuit court granted DHS's termination petition. On September 28, 2018, the circuit court entered an order finding that termination was supported by the aggravated-circumstances ground and was in the best interest of BW, AW, and EW. This appeal followed.
Termination-of-parental-rights cases are reviewed de novo. Pine v. Ark. Dep't of Human Servs. , 2010 Ark. App. 781, at 9, 379 S.W.3d 703, 708. Grounds for termination of parental rights must be proved by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm conviction of the allegation sought to be established. Id. , 379 S.W.3d at 708. 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. , 379 S.W.3d at 708. 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. , 379 S.W.3d at 708. In resolving the clearly erroneous question, we give due regard to the opportunity of the circuit court to judge the credibility of witnesses. Id. , 379 S.W.3d at 708. Termination of parental rights is an extreme remedy and in derogation of a parent's natural rights; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id. , 379 S.W.3d at 708. As with all issues when addressing child placement, the appellate court affords heightened deference to the circuit court's superior position to observe the parties personally and to weigh credibility. Dinkins v. Ark. Dep't of Human Servs. , 344 Ark. 207, 215, 40 S.W.3d 286, 292-93 (2001).
Pursuant to Arkansas Code Annotated section 9-27-341(b)(3), an order forever terminating parental rights shall be based on a finding by clear and convincing evidence that it is in the best interest of the child, including consideration of the likelihood that the child will be adopted if the termination petition is granted and 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). The order must also find by clear and convincing evidence one or more grounds. Ark. Code Ann. § 9-27-341(b)(3)(B). Proof of only one statutory ground is sufficient to terminate parental rights. Hooks v. Ark. Dep't of Human Servs. , 2017 Ark. App. 687, at 11, 536 S.W.3d 666, 673.
The circuit court found that the aggravated-circumstances ground supported its termination decision. In this case, aggravated circumstances means that a determination has been made by a court that there is little likelihood that services to the family will result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A) & (B)(i) . This type of aggravated circumstance occurs when a parent is not following through with offers of assistance, is not completing basic goals of the case plan, and there is a lack of significant progress on the parent's part. Aday v. Ark. Dep't of Human Servs. , 2010 Ark. App. 677, at 4, 2010 WL 3902438.
In support of its aggravated-circumstances finding, the circuit court acknowledged that Wright experienced "brief periods of stability" but found that her case had been open for thirty-four months and that she was "incapable of long[-]term stability, which is what these children need." The court cited evidence that during this case Wright had lived in ten locations, had eight jobs, was unemployed for periods of time, and had eight contempt violations for failure to pay fines from 2016 to 2018. The court also referred to the failed trial placement in which Wright did not take the children to counseling, lost her housing, gave custody of her children to relatives, left town, and did not stay in contact with DHS.
On appeal, Wright argues that this is insufficient evidence to support the aggravated-circumstances finding. We disagree. As pointed out by the circuit court, there was ample evidence of Wright's persistent instability throughout this case. Wright testified that she lived in eleven places, had eight jobs, and owned six vehicles. She admitted that there were times she was unemployed during the case, lacked transportation, and did not have a valid driver's license. The record demonstrates that she had eight contempt violations for failure to pay fines, she failed to pay rent, and she failed to pay utilities. Wright's failed trial placement is a direct result of her inability to sustain stability.
Additional evidence showed that there is little likelihood that further services would result in reunification. Wright failed to attend counseling, to regularly take her medication, and to take her children to counseling during the trial home placement. Counseling and visitation with Wright are not options for BW and AW because they refuse to attend. Dudding testified that because of Wright's history, she would not be able to maintain housing, employment, and transportation if she was given custody of EW.
Wright calls into question the circuit court's conclusion that she lacked stability because the court's own orders demonstrate that she maintained stability for twenty-three of the thirty-four months. It is true that Wright had sixteen months of stability prior to the trial home placement, but when BW, AW, and EW were returned to her custody, Wright lost that stability. While she has maintained her current housing and employment for six months, the circuit court found this was not the stability her children need, and this finding is supported by the testimony of Robinson and Dudding, who both stated that they did not place significance on Wright's current stability because she could not sustain it. This court has repeatedly held that the children's "need for permanency and stability will override [a parent's] eleventh-hour efforts." Gonzalez v. Ark. Dep't of Human Servs. , 2018 Ark. App. 425, at 11, 555 S.W.3d 915, 921.
Wright offers various explanations for the multiple moves and jobs; however, it is for the circuit court to weigh the evidence and determine the validity of the explanations. We will not substitute our judgment for that of the circuit court in matters of weighing the evidence. Garlington v. Ark. Dep't of Human Servs. , 2018 Ark. App. 124, at 9, 542 S.W.3d 917, 922.
Finally, Wright argues that "DHS did very little in the way of offering services to address [her] housing and financial instability during the case." She argues that she would have benefited from family counseling and could have secured housing sooner if DHS had provided the HUD letter before November 2017. However, a finding of aggravated circumstances does not require DHS to prove that meaningful services toward reunification were provided. Willis v. Ark. Dep't of Human Servs. , 2017 Ark. App. 559, at 9, 538 S.W.3d 842, 849.
In sum, the evidence establishes that DHS offered services to Wright for nearly three years; yet she has not demonstrated that she can sustain stable housing, employment, and transportation. A stable home is one of a child's most basic needs. Selsor v. Ark. Dep't of Human Servs. , 2017 Ark. App. 182, at 6, 516 S.W.3d 314, 318. Accordingly, we hold that the circuit court did not clearly err in finding that Wright had subjected her children to aggravated circumstances, meaning that there is little likelihood that services to the family will result in successful reunification.
Wright also challenges the circuit court's finding that termination was in the best interest of the children. There is no merit to this argument.
The circuit court found that BW, AW, and EW are adoptable, and Robinson's testimony supports this finding. A caseworker's testimony that a child is adoptable is sufficient to support an adoptability finding. Miller v. Ark. Dep't of Humans Servs. , 2016 Ark. App. 239, at 8, 492 S.W.3d 113, 118. Moreover, Hollingshead, BW, AW, and EW's therapist, testified that the children had no therapeutic needs that would prevent adoption, that the children's behavior and emotional states were improving in their current foster placements, and that she believed the children would be open to adoption even if they were adopted by separate families, as long as they were happy and stable. This evidence supports the circuit court's adoptability finding. Stanley v. Ark. Dep't of Human Servs. , 2016 Ark. App. 581, at 10, 507 S.W.3d 544, 551.
The circuit court also found that the children would be at risk of potential harm-physical and emotional-if returned to Wright's custody. The same evidence that supports the aggravated-circumstances ground also supports the potential-harm prong of the circuit court's best-interest finding. Robinson said that all three children would be at risk of harm if returned to Wright because of her lack of stability and the family stress it causes. BW was battered due to Wright's instability. Hollingshead testified in detail about the emotional trauma suffered by the children due to Wright's instability and "chaotic upbringing." Hollingshead stated that the girls do not reflect positively on their childhood, they have behavioral issues and emotional problems caused by the instability, and AW and EW have nightmares. Both AW and BW refuse to visit Wright (and have not visited with her in a year) or attend family counseling with her. Although EW reported that she wanted to live with her mom, she acknowledged that eventually they would not have electricity, food, and other things they need. Dudding opined that Wright would not be able to maintain stability with custody of only EW. Finally, a failed trial home placement may be considered evidence of potential harm. Gonzalez , 2018 Ark. App. 425, at 13, 555 S.W.3d at 922.
Further, the evidence disputes Wright's argument that DHS failed to provide services to reunify the children with Wright. According to Lowery, DHS offered many services to Wright that resulted in the trial home placement. During the placement, when Wright lost her home and her job and gave custody of the children to a relative, DHS did not seek to end the placement; rather, DHS continued to offer services to the children, to Granlun, and to Wright. When the trial placement did end, DHS provided further services to Wright and the children. The service that Wright seems to focus on is the family therapy; however, the evidence is clear that Hollingshead did not recommend it because BW and AW refused to attend.
This court has stated time and again that a failure to provide appropriate housing is contrary to the best interest of children. Selsor , 2017 Ark. App. 182, at 6, 516 S.W.3d at 318 (citations omitted). A stable home is one of a child's most basic needs, and that cannot be ignored. Id. , 516 S.W.3d at 318. The evidence established that Wright has failed to demonstrate stable housing, employment, and transportation and that her persistent, all-encompassing instability has been physically and emotionally traumatic to the children. A court may consider past behavior as a predictor of likely potential harm should the child be returned to the parent's care and custody. Gonzalez , 2018 Ark. App. 425, at 13, 555 S.W.3d at 921-22. Accordingly, we hold that the circuit court did not clearly err in finding that the children were at risk of potential harm if returned to Wright's custody.
Affirmed.
Abramson and Gladwin, JJ., agree.
The putative and legal fathers of the children are not parties to this appeal.
The record reflects that during this case Wright had received eight citations for failing to pay fines, three citations for no liability insurance, two citations for driving on a suspended license, one citation for failure to register her vehicle, and one citation for failing to wear a seat belt.
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DAVID M. GLOVER, Judge
Abdul Muhummad appeals from a March 16, 2018 order denying him free copies of files associated with a replevin action (which he filed May 11, 2017, and the trial court dismissed November 30, 2017) and denying his motion to amend his complaint and file a supplemental pleading in the dismissed replevin action. He contends 1) the trial court abused its discretion in denying his request for a copy of his case file after it was seized from him by prison authorities, and 2) the trial court abused its discretion in not allowing him to amend his complaint to include subsequent incidents related to the original complaint in replevin that occurred outside the ninety-day time period referenced in the order but were relevant to the complaint. We affirm.
Abdul is an inmate in the Arkansas Department of Correction and a self-described jailhouse lawyer. Prison rules limit the amount of property that can be stored in inmates' cells; the limit is that which will fit within a provided storage box under the bed. For some time, prison personnel had allowed Abdul to exceed those limits; but when the warden learned Abdul had items that exceeded the allowed storage space, he instructed they be taken from Abdul's cell. The items consisted of legal documents for projects Abdul was working on. Prison rules further provide that if the legal materials are not related to active litigation or appeals, an inmate may store the documents for a maximum of forty-five days but is responsible for disposing of them either by "passing them off" at visitation or through the United States Postal Service at his or her expense. An inmate is allowed to access the stored legal materials by using the inmate request system.
On March 7, 2017, the prison grievance office received a unit-level-grievance form from Abdul explaining his concern about the seizure of his documents. On March 30, 2017, the warden issued his decision, finding the complaint to be without merit. On March 31, 2017, Abdul pursued an appeal of the decision, which, on April 13, 2017, was found to be without merit and denied.
On May 11, 2017, Abdul filed a petition for writ of replevin in the Jefferson County Circuit Court seeking the return of the items that had been removed. On June 29, 2017, appellee Warden Danny Burl filed a motion to dismiss the petition. On November 30, 2017, the trial court granted the motion based on failure to state a claim for which relief could be granted. On December 19, 2017, more than ten days after entry of the November 30 order of dismissal in the replevin action, Abdul filed a motion for relief from judgment pursuant to Arkansas Rule of Civil Procedure 60. The motion was never ruled on by the trial court. No appeal was filed from the dismissal of the replevin action.
In a letter to the Jefferson County Circuit Clerk, filed February 8, 2018, Abdul sought only a copy of his court file; he did not seek an order for prison officials to return the files taken from his cell. In the letter, he asked the clerk to advise him if the proper channel was to petition the trial court and also requested that the letter be file-marked and placed in his file.
Then, on March 12, 2018, more than ninety days after entry of the November 30 order dismissing the replevin action, Abdul filed a motion to file a supplemental pleading and to amend his complaint in the previously dismissed replevin action. In it, he basically contended that events had occurred since he filed his original replevin complaint and his Rule 60 motion for relief from judgment; he wanted permission to amend his original complaint and for his motion for reconsideration to include the subsequent events and to also add a claim for the tort of conversion.
On March 16, 2018, the trial court entered the order from which Abdul brings this appeal. The substance of the March 16 order addressed the February 8, 2018 letter request to the circuit clerk for a copy of Abdul's case file, apparently treating it as a petition, and Abdul's March 12, 2018 motion to file the supplemental pleading and to amend the replevin complaint. With respect to the February 8 letter, the trial court ruled, "Petitioner may obtain copies at the per-page cost established by law. He is not entitled to a free copy of the documents." With respect to the March 12 motion to file the supplemental pleading and to amend the replevin complaint, the trial court ruled, "The motion is not timely in that more than 90 days have passed since the dismissal of the case." This appeal followed.
For his first point of appeal, Abdul contends the trial court abused its discretion in denying his request for a copy of his case file at public expense after it was impermissibly seized by prison authorities. We disagree.
As noted in the State's brief, Abdul employs an "abuse of discretion" standard of review in making his arguments, but "clear error" is the correct standard of review. The standard of review for cases in which the trial court sits as fact-finder is whether the trial court's findings are clearly erroneous. Jones v. Centennial Bank , 2018 Ark. App. 337, 553 S.W.3d 151. 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 by the trial court. Id.
Abdul's basic arguments under this point of appeal are that prison officials seized his files because they had his Muslim name on them, and the trial court should have either ordered the prison staff to return his files or, alternatively, ordered the court clerk to provide him with a copy because he could not continue to prosecute his claim without the file.
We first note that Abdul's letter to the Jefferson County Circuit Clerk contained only a request for a copy of the case file; it made no request for an order directing prison officials to return the items taken from his cell. Consequently, the copy request is the only issue before us pursuant to the February 8 letter/petition. Next, we assume it is the refusal to provide him a copy at public expense that Abdul contends was a mistake because the trial court did not deny his request for the files but rather informed Abdul he could obtain copies "at the per-page cost established by law." We find no clear error in the trial court's decision that Abdul was not entitled to copies of his files at public expense.
The legal authority cited by Abdul in support this point of appeal addresses only the standard of review. He cites no legal authority to support his argument that the trial court was wrong in denying his request for a free copy of his case file at public expense. See generally Fulton v. Beacon Nat'l Ins. Co. , 2012 Ark. App. 320, 416 S.W.3d 759. Moreover, as noted by the State, our supreme court, dealing with an FOIA request, held that an inmate was not entitled to free copies of pleadings previously filed when the inmate cited no postconviction remedy available to him and made no showing of compelling need:
An incarcerated person desiring a photocopy of material on file with the clerk may write this court, remit the photocopying fee, and request that the copy be mailed to the prison. Id. All persons must bear the cost of photocopying unless this court has granted a motion for a copy of the requested material at public expense.
Scott v. State , 2018 Ark. 75, at 2-3, 540 S.W.3d 279, 280 ; see also Moore v. State , 324 Ark. 453, 921 S.W.2d 606 (1996). The situation is somewhat comparable to that presented here. Abdul did not present an order or assert or demonstrate entitlement to having the copies provided at public expense.
In short, Abdul has alleged, but has not established, that he was being denied access to his replevin case file. According to the trial court's order, he was free to obtain a copy of his case file as long as he paid for it. He has alleged, but has not established, that his files were seized because his Muslim name was on them. The underlying replevin case was dismissed with no appeal, the prison administrative grievance procedure found no merit in his claims, and he did not claim or provide any proof that he was indigent. We are not left with a definite and firm conviction that the trial court made a mistake in denying his request for a copy of his case file at public expense.
For his remaining point of appeal, Abdul contends the trial court abused its discretion in denying his motion to amend his dismissed replevin complaint to add subsequent incidents related to the original complaint in replevin and to add the claim for tort of conversion pursuant to the relation-back doctrine under Rule 15 of the Arkansas Rules of Civil Procedure. We disagree.
Here, as previously explained, on May 11, 2017, Abdul filed a petition for writ of replevin in the Jefferson County Circuit Court seeking the return of the items that had been removed. On June 29, 2017, Warden Burl filed a motion to dismiss the petition. On November 30, 2017, the trial court granted the motion based on failure to state a claim for which relief could be granted. On December 19, 2017, more than ten days after entry of the November 30 order of dismissal in the replevin action, Abdul filed a motion for relief from judgment pursuant to Arkansas Rule of Civil Procedure 60. The motion was never ruled on by the trial court. No appeal was filed from the dismissal of the replevin action. Then, on March 12, 2018, more than ninety days after entry of the November 30 order dismissing the replevin action, Abdul filed a motion to file a supplemental pleading and to amend his complaint in the earlier dismissed replevin action. The March 12 motion contained no arguments that would arguably fit within Rule 60(b) (clerical errors) or Rule 60(c) (grounds for setting aside judgment after 90 days).
The trial court correctly determined that the March 12 motion was filed more than ninety days after entry of the November 30 order dismissing the replevin action. Accordingly, the trial court was without jurisdiction to vacate, modify, or set aside the November 30 order dismissing the replevin action. As our supreme court explained in Dye v. Diamante , 2017 Ark. 37, at 5, 509 S.W.3d 643, 646.
Further, we must address the order from which Dye appeals. We hold that the circuit court was without jurisdiction to enter its April 2016 order granting reconsideration and awarding judgment for costs. The trial court loses jurisdiction to set aside or modify an order under Rule 60 if it does not do so within ninety days of the entry of the original order, even though petitioner's motion may have been filed prior to the expiration of that period. Henson v. Wyatt , 373 Ark. 315, 317, 283 S.W.3d 593, 595 (2008). Here, the circuit court ruled outside of the ninety-day limitation, and no clerical error or other ground for setting aside a judgment was alleged. See Ark. R. Civ. P. 60(b)(c).
Here, Abdul filed his March 12 motion to amend and supplement the pleading in the dismissed replevin action more than ninety days after the replevin action was dismissed. The trial court was without jurisdiction to act further in the replevin action. Accordingly, we hold there was no error in the trial court's denial of Abdul's motion to amend and supplement, and it is unnecessary to address Abdul's arguments based on Rule 15 of the Arkansas Rules of Civil Procedure.
Affirmed.
Gladwin and Vaught, JJ., agree.
The December 19 motion was not filed within ten days of the November 30 dismissal order; therefore, it was not deemed denied by operation of law because Rule 60 contains no deemed-denied provision, and Rule 4(b)(1) of the Arkansas Rules of Appellate Procedure-Civil would apply only if the motion had been filed within ten days. See Dale v. White , 2018 Ark. App. 172, 545 S.W.3d 812. | [
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BART F. VIRDEN, Judge
A Pulaski County jury convicted appellant Roscoe Fletcher of aggravated-residential burglary, theft of property, and aggravated robbery. The jury sentenced him as a habitual offender to an aggregate term of forty years' imprisonment. Each sentence was enhanced twelve months for use of a firearm, with the enhancements running concurrently with each other but consecutively with the underlying offenses for an aggregate prison term of forty-one years. Fletcher does not challenge the sufficiency of the evidence to support his convictions for aggravated-residential burglary and aggravated robbery. Rather, he argues that the trial court erred in denying his directed-verdict motion on the theft-of-property conviction because the State failed to prove that he threatened to inflict serious physical injury on the victim. We affirm.
I. Trial Testimony
Willie Wilson testified that on the evening of March 20, 2016, he was visiting his friend, Cassyophis "Meeka" Williams, when two men-a younger man with dreadlocks and an older man-entered Williams's residence wearing masks and carrying guns. Wilson said that he immediately recognized the older man as someone he knew from the neighborhood as "Skeet," and he identified Fletcher as that man at trial. Wilson testified that Fletcher had a sawed-off, double-barreled, 12-gauge shotgun and that Fletcher had cocked it and demanded money. Wilson stated that Fletcher had the shotgun pointed at him with his finger on the trigger. He testified that Fletcher had ordered him to remove his clothes and ordered the younger man to take Wilson's wallet. According to Wilson, they took his identification and twenty or thirty dollars.
In moving for a directed verdict on the charge of theft of property, defense counsel argued, "In the light most favorable to the State[,] Mr. Wilson testified that a young black male with dreads took his property, and there is no proof that there was any threat given or any purpose of serious physical injury." The trial court denied the motion, and the jury returned its verdict of guilty.
I. Standard of Review
We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Horton v. State , 2017 Ark. App. 481, 530 S.W.3d 880. We view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id. We affirm a conviction if substantial evidence exists to support it. Id. 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.
II. Theft of Property
A person commits theft of property if he or she knowingly obtains the property of another person by deception or by threat with the purpose of depriving the owner of the property. Ark. Code Ann. § 5-36-103(a)(2) (Repl. 2013). Theft of property is a Class B felony if the property is obtained by the threat of serious physical injury to any person. Ark. Code Ann. § 5-36-103(b)(1)(B). "Threat" means a menace, however communicated, to cause physical injury to any person or to commit any other criminal offense. Ark. Code Ann. § 5-36-101(11)(A)(i). "Serious physical injury" means physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. Ark. Code Ann. § 5-1-102(21).
III. Discussion
Fletcher argues that the State's evidence was insufficient for three reasons: (1) Wilson did not testify that Fletcher verbally threatened to inflict serious physical injury on him, (2) Wilson did not testify that Fletcher pumped or cocked the sawed-off shotgun that he pointed at him or that he saw Fletcher's finger on the shotgun's trigger, and (3) Wilson did not specifically testify that he believed Fletcher would inflict serious physical injury on him if he did not surrender his property.
As for the first argument, in defining "threat," the statute does not require that the threat be verbalized-the language describes a threat "however communicated." In Hinton v. State , 2015 Ark. 479, 477 S.W.3d 517, our supreme court affirmed Hinton's conviction for theft of property and noted that Hinton had threatened the victim by pointing a firearm at him. In Robinson v. State , 317 Ark. 17, 875 S.W.2d 837 (1994), which was an aggravated-robbery case, the supreme court noted that it was reasonable for the jury to have concluded that when the assailant pointed a gun at one victim, another victim was included "in the threat communicated by the gunman." Id. at 25, 875 S.W.2d at 842. The Robinson court cited McLaughlin v. United States , 476 U.S. 16, 106 S.Ct. 1677, 90 L.Ed.2d 15 (1986), in which the United States Supreme Court recognized that "the display of a gun instills fear in the average citizen." Id. at 17-18, 106 S.Ct. 1677. Here, the jury could have reasonably concluded that Fletcher threatened Wilson when he pointed the shotgun at him.
Fletcher's second assertion is contrary to the victim's testimony. Wilson indeed testified that Fletcher cocked the shotgun and held his finger on the trigger.
Fletcher's third argument is not preserved for appellate review, since it was not raised in his directed-verdict motion. Merchant v. State , 2017 Ark. App. 576, 532 S.W.3d 136 (holding that an argument was not preserved for appellate review when appellant failed to specify in his directed-verdict motion the manner in which the State's evidence was insufficient). In any event, the argument is without merit because the theft-of-property statute does not require that the victim have any particular mental state.
We hold that substantial evidence supports Fletcher's conviction for theft of property.
Affirmed.
Klappenbach and Murphy, JJ., agree. | [
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PHILLIP T. WHITEAKER, Judge
Appellant Brittany Baltimore appeals an order of the Pulaski County Circuit Court terminating her parental rights to her three daughters-twins IB and EB (DOB 02/17/2015) and AW (DOB 06/24/2016). Baltimore's counsel has filed a motion to withdraw from representation and a no-merit brief 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) (2018), stating that there are no meritorious grounds to support an appeal. The clerk mailed a certified copy of counsel's motion and brief to Baltimore at her last-known address informing her of her right to file pro se points for reversal, but the packet was returned and marked "unclaimed," "unable to forward," and "return to sender." Because there are no issues of arguable merit presented, we affirm and grant counsel's motion to withdraw.
I. Facts and Procedural History
Baltimore is the biological mother of IB, EB, and AW. She has an extensive history with the Arkansas Department of Human Services (Department). In 2012, the Department initiated a dependency-neglect proceeding against Baltimore as to two other children due to her drug usage and her continued association with abusive men. The Department removed those children from her custody after their father was arrested in the home for drug possession, and authorities found cocaine in plain sight and in reach of the children. One of the children, a one-year-old, tested positive for cocaine and codeine. In this previous dependency-neglect action, the court found Baltimore unfit, in part, due to her drug usage. In July 2013, the court terminated her parental rights finding that despite being offered services aimed at rehabilitation, Baltimore had failed to address her substance-abuse issues, had failed to visit the children, had failed to comply with the case plan, and had repeatedly lied to the court, prompting the court to suggest she be prosecuted for perjury.
In this current dependency-neglect action, the Department received a hotline referral in May 2017 after two-year-old IB was treated at Arkansas Children's Hospital (ACH) for a four-day-old fractured femur that had required a surgical repair. Baltimore's explanation as to how the injury occurred was not plausible and did not match the presentation or severity of the child's injuries. Additionally, Baltimore was uncooperative during the initial investigation. While she admitted that IB has a twin, she refused to tell the investigator where the child could be located and denied having a third child. When the Department eventually located the other children, they were placed in protective custody under a seventy-two-hour hold. Subsequent drug testing revealed that IB had tested positive for both cocaine and marijuana and that her one-year-old sister, AW, had tested positive for marijuana.
After the seventy-two-hour hold, the Department initiated this dependency-neglect action. The court adjudicated the children dependent-neglected in July 2017 due to parental unfitness, inadequate supervision, failure to protect, medical neglect, and injury inconsistent with the history provided. In addition, the court made two separate aggravated-circumstances findings. Considering the severity of the child's injury and Baltimore's significant delay in obtaining treatment for the child, the court found by clear and convincing evidence that one of the children (IB) had been subjected to extreme cruelty through medical neglect. Considering the facts and circumstances of the previous dependency-neglect action and Baltimore's lack of progress therein, the court also found by clear and convincing evidence that there was little likelihood of successful reunification despite a reasonable offer of services. However, despite its finding of aggravated circumstances, the court did not fast track the case or authorize the filing of a petition for termination of parental rights at that time, instead opting to allow Baltimore the opportunity to attempt reunification.
Baltimore did not take advantage of the opportunity for reunification. While she participated in services and court proceedings, the court found that she exerted only "some" effort at complying with the case plan, that she had not made any substantive progress, and that she had not addressed the core issues at stake in the case. The court also noted that her testimony with regard to her relationship with Tommy Wright-her abusive boyfriend and the alleged offender in the injury of IB-was not credible.
The Department subsequently filed a petition for termination of parental rights alleging that termination of Brittany's parental rights was in the best interest of the children; that the children are adoptable; and that potential harm would be caused if the children were returned to Brittany's custody. The petition also alleged the following statutory grounds as to Brittany: twelve-month failure to remedy ( Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) ) (Supp. 2017); subsequent other factors ( Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) ); aggravated circumstances-extreme cruelty ( Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i) ); aggravated circumstances-little likelihood of successful reunification ( Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i) ); and prior involuntary termination ( Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(4) ). Following a termination hearing, the trial court entered an order terminating Baltimore's parental rights based on all five grounds alleged in the petition and based on the court's best-interest finding, including its consideration of the adoptability of the children and the potential harm if they were returned to Baltimore's care.
Baltimore filed a timely notice of appeal, and her counsel has filed a no-merit brief. After carefully examining the record and the no-merit brief, we hold that Baltimore's counsel has complied with the requirements for a no-merit parental-termination appeal and that the appeal is wholly without merit for the reasons set forth below.
II. Standard of Review
We conduct a de novo review of termination-of-parental-rights cases because the rights of natural parents are not to be passed over lightly, and the termination of parental rights is an extreme remedy in derogation of these natural rights. Fox v. Ark. Dep't of Human Servs. , 2014 Ark. App. 666, 448 S.W.3d 735. 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). Additionally, the trial court must find proof, by clear and convincing evidence, of one or more of the grounds for termination listed in section 9-27-341(b)(3)(B). 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 Human Servs. , 370 Ark. 500, 262 S.W.3d 159 (2007). In this de novo review process, we will not reverse the trial 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, an appellate court gives due deference to the opportunity of the trial court to judge the credibility of witnesses. Id.
III. Analysis
A. Statutory Grounds
The trial court in this case found the Department had proved the following statutory grounds by clear and convincing evidence: (1) twelve-month failure to remedy; (2) subsequent other factors; (3) aggravated circumstances-extreme cruelty; (4) aggravated circumstances-little likelihood of successful reunification; and (5) prior involuntary termination. Although the trial court found five statutory grounds for termination, we need only address one of these grounds because only one ground is necessary to support termination. Wagner v. Ark. Dep't of Human Servs. , 2018 Ark. App. 554, at 8, 566 S.W.3d 478, 483. Here, as one of the statutory grounds for termination under Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(4) , the trial court found that Baltimore had previously had her parental rights involuntarily terminated as to another child. The trial court's finding was not clearly erroneous because evidence was presented, and Baltimore admitted, that her rights to at least two children had previously been involuntarily terminated as a result of neglect and her drug usage.
B. Best Interest
The trial court also held that it was in the best interest of the children to terminate Baltimore's parental rights. More specifically, the trial court found that the children are adoptable based on the testimony of an adoption specialist that she had identified over 250 families who could potentially adopt the children as a sibling group. Thus, the trial court's finding of adoptability is supported by the evidence.
The trial court also concluded that potential harm would result if the children were returned to their mother's custody. The court found that Baltimore is not a fit and appropriate parent; that her children had been harmed while in her care; and that the children had to be removed for their own safety. We conclude that sufficient evidence supports the court's findings and note that Baltimore did not exhibit enough progress to allay the concerns of the court regarding her parental fitness or her emotional and psychological stability. In our de novo review, we note that Dr. Deyoub performed two assessments on Baltimore, one in connection with the previous dependency-neglect action and again in this current action. While he noted that Baltimore had matured during the five years between the two assessments, Dr. Deyoub opined that Baltimore still possessed an inability to successfully parent or protect the children from harm.
The trial court further found that potential harm would result if custody was returned to Baltimore due to her continued participation in dysfunctional and violent relationships. Here, there was evidence that Tommy Wright was physically abusive to Baltimore, even when she was pregnant with the twins, and that he might have caused IB's injuries. Baltimore admitted that Wright was physically abusive toward her but insisted that he would never harm the children and denied that he had harmed IB. She claimed that she was no longer in a relationship with Wright, but there was evidence to the contrary, including the social worker's testimony that she had on one occasion found Wright alone in Baltimore's apartment. These factors clearly support the trial court's finding that Baltimore would be unable to do what was necessary to establish a successful reunification and that potential harm would result if the children were returned to her custody.
In assessing potential harm, a court is not required to identify a specific potential harm; rather the potential-harm analysis is to be conducted in broad terms. Shawkey v. Ark. Dep't of Human Servs. , 2017 Ark. App. 2, at 7, 510 S.W.3d 803, 807. Based on the foregoing, the trial court did not clearly err in its best-interest determination, and its conclusion does not provide a basis for reversal.
Affirmed; motion to withdraw granted.
Klappenbach and Vaught, JJ., agree.
The court also terminated the parental rights of Tommy Wright, the biological father of A.W. Wright did not appeal the termination decision and is not a party to this appeal. David Thomas, the legal father of IB and EB, is also not a party to this appeal because, due to service-of-process issues, his rights were not terminated by the appealed order.
The only adverse ruling presented here is the termination decision itself.
Another of Baltimore's children is in the permanent custody of the maternal grandmother.
Baltimore explained that a six- or seven-year-old girl at a park hit IB with a stick a few days earlier; that the leg was really swollen but she was unaware that it was broken; and that she would have taken her to the hospital sooner if she had realized it was broken.
The petition was amended after the termination hearing to make it clear that the parental rights of David Thomas, the legal father of IB and EB, had not been terminated and that he was the sole remaining parent subject to the petition. | [
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RAYMOND R. ABRAMSON, Judge
Appellant Brianna Jones appeals an order by the Hempstead County Circuit Court terminating her parental rights to her daughters, S.B. and K.J. On appeal, Jones argues that the circuit court erred in terminating her parental rights because the Arkansas Department of Human Services (DHS) failed to meet its burden of proof. We affirm.
On September 6, 2016, the juveniles were removed from the physical and legal custody of Jones after their nine-day-old sibling, A.J., suffered an unexplained cranial fracture and died. K.J. had bug bites all over her arms, face, and legs, and her feet were blackened because she had no shoes. The home was filthy with piles of dirt, debris, unclean dishes, old food, urine and dog feces, condom packages, and trash. Tobacco, open chemicals, and firearms were all within the children's reach. DHS assumed emergency custody over then four-year-old S.B. and two-year-old K.J. Jones had an extensive history with DHS, including a true finding for environmental neglect in 2012 and a previous dependency-neglect case from 2013-2015.
On November 3, 2016, the circuit court adjudicated S.B. and K.J. dependent-neglected on the basis of Jones's stipulation to neglect and parental unfitness. The circuit court found Jones's "failure to provide a shelter that does not pose a risk or safety hazard to the juveniles" was a basis for its decision. The goal of the case was set as reunification, and Jones was ordered to participate in parenting classes, submit to random drug screens, and participate in counseling and homemaking services.
At the December 8, 2016 hearing, the circuit court found Jones in partial compliance with the case plan in that she had been visiting the children and her drug screens were negative, but she had not yet completed counseling. The court also ordered Jones to undergo a psychological assessment. Dr. Betty Feir conducted the psychological evaluation of Jones and concluded that Jones had possible borderline personality and bipolar disorders, and had long-standing problems with DHS. Jones was also diagnosed by a counselor "with adjustment disorder, with mixed anxiety and depressed mood." Dr. Feir recommended that Jones's parental rights be terminated because she did not appear to be capable of parenting and did not have the emotional or mental capacity to safely care for her children.
A review order was entered on February 13, 2017, after the court held a hearing on February 9. The circuit court found Jones had been visiting with the children, had tested negative on drug screens, had participated in individual counseling, and had completed the psychological evaluation. However, the cleanliness of Jones's home remained an issue, and the court ordered that unsupervised visits with the children could not begin until Jones demonstrated that she could maintain a safe, clean, and appropriate home for herself and her children.
Another review hearing was held on May 11, 2017, and the court found that Jones had continued to abuse illegal substances and had not participated in any form of substance-abuse treatment. Jones also admitted having been involved in a romantic relationship with a man with whom she had a history of abusing drugs and alcohol, and who was, at the time of the hearing, being detained in the Hempstead County jail.
At the review hearing on July 20, 2017, the court found that Jones had complied with the case plan in that she had completed a psychological evaluation, drug assessment, parenting classes, inpatient drug treatment, submitted to random drug screens, participated in home-maker services and counseling, and had visited the children regularly. The court also noted that Jones's home had recently been in a more appropriate condition for the children's habitation. Specifically, the court wrote that it "would like to see the mother sustain her sobriety and the appropriateness of her home."
Jones's home burned down the next month, and on August 17, Jones tested positive for amphetamines, methamphetamine, and cocaine. After her home burned, Jones stayed with her ex-boyfriend's mother.
On September 14, 2017, the court held a permanency-planning hearing, just over a year after the children's removal from Jones's home. The court found that while Jones had completed some services, she had also "tested positive for illegal substances throughout much of the case" and "recently tested positive for illegal substances again." In the months that followed, Jones continued to decline. She again tested positive for amphetamine and methamphetamine on December 6, 2017, and three weeks later--on December 27, tested positive for amphetamine. In a report filed on January 11, 2018, the court-appointed special advocate stated that she had learned that Jones had been kicked out of outpatient substance-abuse treatment "due to non-compliance, not attending meetings or classes, and relapses."
Following a January 11, 2018 hearing, the circuit court found that Jones had not complied with the case plan and court orders. She was discharged from outpatient drug treatment for noncompliance. She had tested positive for illegal substances as recently as the month before, and she still lacked housing of her own. As the court noted, Jones "ha[d] demonstrated little progress toward the goal of the case plan or remedying the issues that prevent restoration of her custody."
On March 5, the circuit court entered an order terminating reunification services to Jones, finding that there was little likelihood that services to the family would result in successful reunification. On March 15, the circuit court held a termination hearing. The court received testimony from several witnesses, including Machell Whitmore, the DHS caseworker assigned to the case, and Amy Donahue, whom the court, without objection, recognized as an expert in drug-and-alcohol counseling. The court also heard testimony from Emeki Strong, a mental-health therapist; Terry Yoya, a supervisor for the Hempstead County family-services workers; and Lashelle Hamilton, a CASA volunteer. Lisa Forte, an adoption specialist, also testified. Jones testified on her own behalf at the termination hearing. The court found all the witnesses credible except for Jones.
The court terminated Jones's parental rights on the basis on two statutory grounds: "failure to remedy" pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a) and "aggravated circumstances" pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(3)(A)-(B)(i) . The circuit court also found that it was in the children's best interest to terminate Jones's parental rights. This appeal is now before us.
The standard of review in appeals of terminations of parental rights is de novo, but we reverse a circuit court's decision to terminate parental rights only when it is clearly erroneous. Ullom v. Ark. Dep't of Human Servs. , 340 Ark. 615, 12 S.W.3d 204 (2000) ; Mitchell v. Ark. Dep't of Human Servs. , 2013 Ark. App. 715, 430 S.W.3d 851 ; Brewer v. Ark. Dep't of Human Servs. , 71 Ark. App. 364, 43 S.W.3d 196 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a distinct and firm conviction that a mistake was made. Wade v. Ark. Dep't of Human Servs. , 337 Ark. 353, 990 S.W.2d 509 (1999) ; Knuckles v. Ark. Dep't of Human Servs. , 2015 Ark. App. 463, 469 S.W.3d 377 ; Hopkins v. Ark. Dep't of Human Servs. , 79 Ark. App. 1, 83 S.W.3d 418 (2002).
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(b)(3). 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. Pine v. Ark. Dep't of Human Servs. , 2010 Ark. App. 781, at 9-10, 379 S.W.3d 703, 708-09. Adoptability is not an essential element; rather, it is a factor that the circuit court must consider.
Tucker v. Ark. Dep't of Human Servs. , 2011 Ark. App. 430, at 7, 389 S.W.3d 1, 4-5. Likewise, the potential harm to the child is a factor to be considered, but a specific potential harm does not have to be identified or proved by clear and convincing evidence. Pine , 2010 Ark. App. 781, at 11, 379 S.W.3d at 709.
The potential-harm analysis is to be conducted in broad terms. Shawkey v. Ark. Dep't of Human Servs. , 2017 Ark. App. 2, at 5, 510 S.W.3d 803, 806. It is the best-interest finding that must be supported by clear and convincing evidence. Id. The appellate inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep't of Human Servs. , 329 Ark. 243, 248, 947 S.W.2d 761, 763 (1997). Credibility determinations are left to the fact-finder. Kerr v. Ark. Dep't of Human Servs. , 2016 Ark. App. 271, at 6, 493 S.W.3d 342, 346. We note 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).
Jones argues that the evidence did not support the court's findings that DHS adequately proved the statutory grounds for termination. As we have repeatedly held, DHS need only prove one ground for termination, so we must affirm if the evidence supports at least one of the statutory grounds at issue in the case. Martin v. Ark. Dep't of Human Servs. , 2016 Ark. App. 521, at 11, 504 S.W.3d 628, 635. Having reviewed the record, we conclude that there was sufficient evidence to support the circuit court's decision on both grounds. The same evidence that supports the circuit court's best-interest decision also supports its statutory-grounds findings.
Under the "aggravated circumstances" ground, a court may terminate parental rights if the court has determined that there is little likelihood that further services will result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix). This type of aggravated circumstance occurs when a parent is not following through with offers of assistance, is not completing basic goals of the case plan, and is not making significant progress. Aday v. Ark. Dep't of Human Servs. , 2010 Ark. App. 677, at 4, 2010 WL 3902438. Despite seventeen months of services, Jones had not demonstrated sufficient parenting skills to regain custody of the children or to be trusted with a trial placement or unsupervised visitation.
This is most evidenced by the instability caused by her continuing use of illegal drugs during the case. Jones would bring alcohol to DHS visits, and she tested positive for drugs as late as December 2018--fifteen months after the children's removal. She was also expelled from an outpatient-treatment program and was arrested for possession of marijuana a little more than a month before the termination hearing. Despite the reasonable efforts and appropriate services provided by DHS, Jones did not obtain any true benefit from DHS's services. See Chapman v. Ark. Dep't of Human Servs. , 2014 Ark. App. 525, at 4-5, 443 S.W.3d 564, 567 (affirming termination because of the voluminous evidence of continued parental instability despite working with DHS).
Sufficient evidence supports the circuit court's finding of aggravated circumstances in this case. 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. A finding of aggravated circumstances does not require DHS to prove that meaningful services toward reunification were provided. Willis v. Ark. Dep't of Human Servs. , 2017 Ark. App. 559, at 9, 538 S.W.3d 842, 849. Yet here, the evidence establishes that DHS offered services to Jones for almost a year and a half, and despite these services, Jones did not demonstrate that she could consistently provide a stable, safe, and appropriate environment for the children. A stable home is one of a child's most basic needs. Selsor v. Ark. Dep't of Human Servs. , 2017 Ark. App. 182, at 6, 516 S.W.3d 314, 318. Jones's actions throughout the case support the circuit court's decision that there was little likelihood of successful reunification.
From our de novo review of the record, we cannot say that the circuit court's finding on aggravated circumstances is clearly erroneous. As we have repeatedly held, DHS was required to prove only one statutory ground, so we do not address the other ground the circuit court found--"failure to remedy." Shawkey , 2017 Ark. App. 2, at 6, 510 S.W.3d at 807.
Jones also argues that the circuit court clearly erred in finding that termination was in her children's best interest. The circuit court considered the Juvenile Code's best-interest factors:
That it is in [S.B. and K.J.'s] best interests to terminate [Jones's] parental rights, including consideration of the likelihood that [K.J.] will be adopted if the termination petition is granted, and the potential harm that would be caused to [S.B. and K.J.] by returning them to [Jones's] custody, specifically addressing the effect on [S.B. and K.J.'s] health and safety. As to [K.J.'s] adoptability, the Court finds that there are over 800 adoptive matches for her, and that she is a healthy little girl, with no impediments to being successfully adopted.[ ] As to potential harm, the Court finds that if [S.B. and K.J.] were placed in [Jones's] custody, they would likely be subjected to harm in the form of further neglect and parental unfitness, or possibly worse. Specifically, the Court finds that the evidence presented demonstrates that [Jones] lacks the ability to manage her substance abuse, and that she lacks sufficient stability to ensure [that S.B. and K.J.'s] needs are met, including protection of their health and safety. The Court notes that [DHS] has been involved with [Jones] previously, and offered services similar to those offered in this case.
Under the umbrella of the children's best interest, the circuit court specifically considered adoptability and found that there was potential harm to the girls if Jones was given custody. The circuit court's best-interest finding was supported by clear and convincing evidence of Jones's continued drug use. Case law is clear that a parent's continuing use of illegal drugs during a dependency-neglect case poses a risk of harm to a child. Howell v. Ark. Dep't of Human Servs. , 2017 Ark. App. 154, at 6, 517 S.W.3d 431, 435. The Juvenile Code does not require a "specific quantum" of evidence to support a circuit court's finding regarding adoptability; it requires only that if an adoptability finding is made, evidence must exist to support it.
Cole v. Ark. Dep't of Human Servs. , 2018 Ark. App. 121, at 5, 543 S.W.3d 540, 543. A caseworker's testimony that a child is adoptable is sufficient to support an adoptability finding. Strickland v. Ark. Dep't of Human Servs. , 2018 Ark. App. 608, at 10, 567 S.W.3d 870, 876. In the present case, the caseworker testified that K.J. was adoptable and that there were over 800 adoptive matches for her.
The circuit court must consider a parent's compliance and behavior during the entire dependency-neglect case, as well as the evidence presented at the termination hearing, to decide whether the termination is in the children's best interest. Ark. Code Ann. § 9-27-341(a)(4)(B). Here, the circuit court did just that, and we are not left with a distinct and firm impression that the circuit court made a mistake in its findings on the children's best interest. Accordingly, we affirm.
Affirmed.
Gruber, C.J., and Harrison, J., agree.
This is the second time this case is before us. Our court dismissed the appeal for lack of jurisdiction on January 16, 2019. See Jones v. Ark. Dep't of Human Servs. , 2019 Ark. App. 4, 570 S.W.3d 471. On May 2, 2019, our supreme court granted Jones's motion for belated appeal and vacated our opinion. The high court reinstated the appeal, so although Jones has not cured the notice-of-appeal requirements, our court, as directed by the Arkansas Supreme Court, now reaches the merits of this case.
S.B.'s father's parental rights were not terminated; therefore, she remained in his custody. | [
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PHILLIP T. WHITEAKER, Judge
Appellant David Caldwell appeals from an order of the Crawford County Circuit Court revoking his suspended imposition of sentence (SIS) and sentencing him to two years in the Arkansas Department of Correction (ADC). On appeal, he argues that (1) the State's failure to call the victim as a witness at his revocation hearing violated his right to confront his accuser under the Confrontation Clause, and (2) there was insufficient evidence to revoke his SIS. We are unable to reach the merits of his argument at this time because of a deficiency in Caldwell's addendum.
Caldwell was originally sentenced to four years in the ADC with an additional two years' SIS on one count of possession of methamphetamine. The State subsequently filed a petition to revoke Caldwell's SIS, alleging that he had committed the new offenses of possession of methamphetamine, possession of drug paraphernalia, fleeing, possession of marijuana, driving on a suspended driver's license, and using fictitious tags. The petition also alleged that Caldwell was a habitual offender. In an amended petition to revoke, the State realleged the above offenses and added an allegation of second-degree battery on a law-enforcement officer.
At a hearing on the petition to revoke, the State presented evidence only on the allegation of second-degree battery. The State called two witnesses to offer testimony about this offense: Deputy Dylan Deshazo and Captain Halbert Torraca, the jail administrator for the Crawford County Sheriff's Office. The State did not present the testimony of Deputy Hight, the alleged victim of the offense. Deputy Deshazo testified about the altercation between Caldwell and Deputy Hight that led to the second-degree battery allegation in the amended revocation petition. Deputy Deshazo further said that the incident was captured on a security video, that he had seen the video, and that the video accurately reflected what he recalled from that day. The State introduced the DVD into evidence, without objection, through Captain Torraca and played it for the circuit court. At the conclusion of the revocation hearing, the court revoked Caldwell's SIS and sentenced him to two years in the ADC.
The DVD is the reason we cannot reach the merits of Caldwell's argument at this time. In Caldwell's second point on appeal, he argues that there was insufficient evidence of second-degree battery on a law enforcement officer because there was no evidence of physical injury. See Ark. Code Ann. § 5-13-202(a)(4)(A) (Repl. 2013) (A person commits second-degree battery if he intentionally or knowingly without legal justification causes physical injury to one he knows to be a law enforcement officer, while such officer is acting in the line of duty.); Ark. Code Ann. § 5-1-102(14) (defining "physical injury" as the impairment of a physical condition of the infliction of substantial pain). Caldwell also argues that there was no testimony about his mental state at the time of the alleged offense.
The DVD that was introduced through Captain Torraca showed the incident in the jail, and the circuit court watched the video and relied on it in reaching its decision to revoke Caldwell's SIS. The DVD, therefore, is an item that is "essential for the appellate court to understand the case and decide the issues on appeal" and is thus required to be in the addendum. Ark. Sup. Ct. R. 4-2(a)(8)(A)(i). Caldwell's addendum, however, contains only a photocopy of a photograph of the DVD, not the disc itself. We must therefore order Caldwell to submit a supplemental addendum that includes a physical copy of the DVD. See Fennell v. State , 2015 Ark. App. 523, at 2, 2015 WL 5734394 (ordering rebriefing where the appellant challenged the sufficiency of the evidence supporting his harassment conviction, and a DVD-which was not included in the addendum-included appellant's exchanges with the victim-witnesses at the event where appellant was alleged to have committed harassment). Caldwell shall have seven calendar days to submit the supplemental addendum. Ark. Sup. Ct. R. 4-2(b)(4).
Supplemental addendum ordered.
Gruber, C.J., and Virden, J., agree. | [
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