Newman v. State
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Cite as 2010 Ark. App. 643
ARKANSAS COURT OF APPEALS
DIVISION III
No. CACR10-16
Opinion Delivered
JOE A. NEWMAN
APPELLANT
September 29, 2010
APPEAL FROM THE JEFFERSON
COUNTY CIRCUIT COURT,
ELEVENTH DISTRICT
[CR-2006-188-1]
V.
HONORABLE BERLIN C. JONES,
JUDGE
STATE OF ARKANSAS
APPELLEE
REVERSED
DAVID M. GLOVER, Judge
In August 2008, appellant Joe Newman, a level-four sex offender, was in the
seventeenth month of a twenty-four-month period of probation for an underlying offense of
failure to register as a sex offender. At that time the probation/parole office received a report
that appellant was working at a daycare center. In October 2008, the State filed a petition to
revoke his probation, alleging that he had violated the terms and conditions of his probation
in the following manner:
Violations:
RULE #13-15 FEES-A.) Mr. Newman has failed to pay fees
owed and is currently delinquent $50 in PSF and $525 to JCSO.
RULE #16 SPECIAL CONDITIONS-A.) On and before
08/19/2008, Mr. Newman knowingly violated Arkansas
Criminal Code [section 5-14-129] of the Sex Offender
Registration Act of 1997 by working at TLC Daycare.
Cite as 2010 Ark. App. 643
After a hearing on the petition, the trial court revoked appellant’s probation and sentenced
him to six years in the Arkansas Department of Correction.
Appellant has appealed,
contending that the “trial court erred in determining that he violated the conditions of his
probation by performing carpentry work at a daycare.” We agree and reverse the order
revoking appellant’s probation.
Hearing Testimony
Lashondra Brown, who handles sex-offender cases and is appellant’s probation officer,
was the State’s sole witness. She testified that on August 19, 2008, she received the report
that appellant was working at a daycare center. She said that she followed up on the report
by talking with appellant and calling the owner of the daycare center. Appellant admitted he
had been working at the daycare, at first claiming to have only worked there after-hours but
later admitting that he had worked there during the time children were present. He described
his work to her as putting up doors and installing baseboards. She told him not to return to
the daycare or to go anywhere that children congregated.
When Brown spoke to the daycare owner, the owner praised appellant but also
confirmed that appellant had only recently informed her of his sex-offender status. According
to Brown, the owner reported being shocked. Brown told the owner appellant could no
longer work there.
Brown further testified that at the time the petition to revoke was filed, appellant was
two months, or $50, delinquent on his payments to the Department of Community
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Correction; and that he was also behind $525 on his payments to the Jefferson County
Sheriff’s Office. She acknowledged that he had made some payments; that he had never
tested positive for drugs while on probation; and that he had performed his communityservice work. She said that the report that he was working at a daycare center prompted the
petition to revoke.
Brown explained that the “sex-offender acknowledgment form” is the form appellant
signs when he goes to register as a sex offender with the sheriff’s department. She agreed that
it deals only with limitations on where he can reside. She testified that appellant was aware
of the conditions that he is supposed to abide by, even if she did not have the form he signed;
that he has three previous sex offenses; and that he has previously been on probation for sex
offenses. She acknowledged, however, that he did not sign any paperwork saying he cannot
be within two thousand feet of a school, as far as working.
Brown testified that when she approached appellant about the report of him working
at a daycare center, she advised him that he knew what his conditions were and that he was
not supposed to be anywhere around minor children. She said that she instructed him not
to return to the daycare or any other school and that he was not to accept work for any
position that would cause him to be around children. She stated that she knew appellant did
carpentry work and that it was the job he had on probation.
The condition of the sex-
offender act that he violated by working on doors and baseboards at the daycare center,
according to Brown, was “that he’s not supposed to be within two thousand feet of a school,
park or a daycare.”
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Cite as 2010 Ark. App. 643
Brown then stated,
[E]ven if he didn’t violate the law, he didn’t get charged with violating the law. He
violated one of his special conditions. ...
I don’t have — I don’t have anything
that states that Mr. Newman cannot work at the daycare that he has signed. I don’t
have anything signed that states that he is not to volunteer or work in an occupation
where he is primarily and directly working with children. Going there and putting up
a couple of doors and some baseboards is primarily and directly with children. He admitted to
it. He admitted to being there while it was kids at the daycare. I did not ask him if he
was interacting with the kids. I did not ask him if he had any sort of interaction with children.
It’s based on him working at the daycare and he’s a Level 4 sex offender, classified as a sexually
violent predator. That’s why. As far as what is in the statute or in the rules read to him
that he violated, there’s nothing that’s in his probation conditions, nothing, if that’s
what you’re referring to. Which conditions are you referring to? He violated the Sex
Offender Registration Act of 1997, amended by the — amended in the year 2000. I
do not have a copy in my file.
I do not have anything that I can now present into evidence that said he could not go to
a daycare and he could not work in a daycare other than the statute that says that he is not to
primarily – to engage in an occupation or participate in a volunteer position that requires him to
work or interact primarily and directly with children. I don’t have a copy of what I claim that
he violated.
(Emphasis added.)
On redirect, Brown stated,
I do have a copy of the rules that he signed. It does have Rule 16 on it. “You must
comply with the special conditions imposed by the court.” I do have a copy of my
violation [report. It] shows that Rule 16 is a special condition. That he violated
Arkansas Criminal Code 5-14-[129] of the Sex Offender Registration Act of 1997 by
working at the [daycare center.]
Brown testified that it is a violation of sex-offender probation to work at a daycare
center; that sex offenders are told of the restrictions on their employment when they come
into probation; that sex offenders have to report their employment with the sheriff’s
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Cite as 2010 Ark. App. 643
department; and that she has copies of the forms that probationers fill out in sex-offender
registration.
Brown identified State’s Exhibit 1 as a document in her file that is kept in the normal
course of probation business, and identified it as the sex-offender acknowledgment form. She
said that it was signed by appellant, Joe A. Newman, on October 29, 2007. She explained
that item number seven on the form provides: “Pursuant to Act 1779 of 2005, it is unlawful
for a sex offender who is required to register under the Sex Offender Registration Act of
1997, 12-12-901, and who has been assessed as a Level 3 or 4 offender to engage in a
occupation or participate in a volunteer position that requires a sex offender to work or interact
primarily and directly with children under the age of 16 years.” (Emphasis added.) She testified that
there were children under sixteen years of age at the daycare center where appellant admitted
working.
On re-cross, Brown acknowledged that she did not know how long appellant worked
at the daycare center, but stated that under her interpretation he was “not to be around kids,
period.” At this time, the State rested.
Without offering any testimony on behalf of appellant, his counsel argued that the
language of the statute did not encompass doing carpentry work at a school because it
provides that a sex offender is not to directly engage in an occupation or participate in a
volunteer position where he has direct interaction with children. He argued that the State
presented nothing to show that appellant was “intentionally going around and interacting with
children in any shape, form or fashion, which is specifically what this law is set up for.” He
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asserted that all the evidence showed was that “he went over and did some carpentry work
without any interaction being shown with any children at all.”
The trial court concluded that appellant’s interpretation was strained and “downright
ludicrous,” revoked appellant’s probation, and sentenced him to six years in the Arkansas
Department of Correction. The only reason given for revocation in the order was based on
the trial court’s conclusion that appellant’s work at the daycare center violated Arkansas Code
Annotated section 5-14-129 (Repl. 2006). There was no ruling on appellant’s alleged failure
to pay fines.
Standard of Review
In revocation proceedings, the burden is on the State to prove a violation of a
condition by a preponderance of the evidence. Dooly v. State, 2010 Ark. App. 591, ____
S.W.3d ____. The State’s burden of proof in a revocation proceeding is less than that
required to convict in a criminal trial, and thus evidence that is insufficient for a conviction
may be sufficient for a revocation. Id. In order to revoke a suspended sentence, the State
need only prove one violation. Id. When the sufficiency of the evidence is challenged on
appeal, we will not reverse a trial court’s decision to revoke unless its findings are clearly
against the preponderance of the evidence. Id. Because the determination of a 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. However, with respect
to matters of statutory construction, our review is de novo. Lampkin v. State, 2009 Ark. App.
382, 309 S.W.3d 223.
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Cite as 2010 Ark. App. 643
Section 5-14-129
Even though the State presented evidence that appellant had violated the terms of his
probation by nonpayment of fines, the trial court did not make a ruling on that basis for
revocation.
The probation officer’s position seemed to be that the terms of appellant’s
probation prohibited him from being around children at all, but the only written provision
that she was able to produce in support of her position was dependent upon Arkansas Code
Annotated section 5-14-129. See also Whitener v. State, 96 Ark. App. 354, 241 S.W.3d 779
(2006) (because our statutory law requires that every probationary sentence contain condition
that the probationer not violate the law, and because everyone is presumed to know the law,
State not required to introduce into evidence the probationary condition that appellant not
violate the law.).
Accordingly, our review is limited to the trial court’s conclusion that
appellant violated Arkansas Code Annotated section 5-14-129 (Repl. 2006) by performing
carpentry work at the daycare center.
In Williams v. State, 364 Ark. 203, 208, 217 S.W.3d 817, 819-20 (2005), our supreme
court explained:
The basic rule of statutory construction, to which all other interpretive guides must
yield, is to give effect to the intent of the legislature. Thomas v. State, 315 Ark. 79, 864
S.W.2d 835 (1993); Mountain Home Sch. Dist. v. T.M.J. Builders, Inc., 313 Ark. 661,
858 S.W.2d 74 (1993). In interpreting a penal statute, “[i]t is well settled that penal
statutes are strictly construed with all doubts resolved in favor of the defendant, and
nothing is taken as intended which is not clearly expressed.” Hales v. State, 299 Ark.
93, 94, 771 S.W.2d 285, 286 (1989). However, even a penal statute must not be
construed so strictly as to defeat the obvious intent of the legislature. Russell v. State,
295 Ark. 619, 751 S.W.2d 334 (1988). In this regard, we will not construe penal
statutes so strictly as to reach absurd consequences which are clearly contrary to
legislative intent. Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993); Williams v. State,
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292 Ark. 616, 732 S.W.2d 135 (1987); Ashing v. State, 288 Ark. 75, 702 S.W.2d 20
(1986).
In addition, we construe a criminal statute just as it reads, giving the words their ordinary and
usually accepted meaning in common language, and if the language of the statute is plain and
unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules
of statutory interpretation. Hagar v. State, 341 Ark. 633, 19 S.W.3d 16 (2000).
Arkansas Code Annotated section 5-14-129 (Repl. 2006) provides in pertinent part:
(a) It is unlawful for a sex offender who is required to register under the Sex
Offender Registration Act of 1997, § 12-12-901 et seq., and who has been assessed as
a Level 3 or 4 offender to engage in an occupation or participate in a volunteer
position that requires the sex offender to work or interact primarily and directly with a child
under sixteen (16) years of age.
(Emphasis added.)
The question then presented by this appeal is whether appellant’s
performance of carpentry work at a daycare center violated this statute, thereby violating the
terms and conditions of his probation. We have concluded that it did not.
Appellant’s presence at the daycare center performing carpentry work was the only
proof of violation of this statute presented by the State. There was no evidence that he
otherwise interacted with the children in any fashion. Strictly construing this statute, with
all doubts resolved in favor of the appellant, and taking nothing as intended that is not clearly
expressed, we have determined that appellant’s performance of carpentry work at the daycare
center is not encompassed within the meaning of this statute. There was no evidence that
appellant’s presence at the daycare center involved him working or interacting primarily and
directly with the children. At the same time, our strict construction of this statute does not
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lead to an absurd result for the specific reason that the language’s clear emphasis is that there
be no direct contact with children. That is, the language of the statute is not so concerned
with where a level-four sex offender works as it is with making sure that the sex-offender’s
work does not involve direct and primary contact with children. Had the legislature intended
for level-four sex offenders “not to be around kids, period,” they could have said so, and if
that was a condition of appellant’s probation, the probation office should have produced a
copy of that condition at the revocation hearing. With the case that is before us, we are
constrained to reverse the revocation of appellant’s probation.
Reversed.
G LADWIN and A BRAMSON, JJ., agree.
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