Newman v. State
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Cite as 2011 Ark. 112
SUPREME COURT OF ARKANSAS
No.
CR 10-1077
JOE A. NEWMAN,
Opinion Delivered
APPELLANT,
VS.
STATE OF ARKANSAS,
March 17, 2011
APPEAL FROM THE JEFFERSON
COUNTY CIRCUIT COURT,
NO. CR-2006-188-1,
HON. BERLIN C. JONES, JUDGE,
APPELLEE,
R E V E R SED AN D R EM A N D E D ;
COURT OF APPEALS’ OPINION
VACATED.
PAUL E. DANIELSON, Associate Justice
Appellant Joe A. Newman appeals from the judgment and commitment order revoking
his probation, convicting him of failure to register/comply as a sex offender, and sentencing
him to seventy-two months’ imprisonment. Newman previously appealed to the court of
appeals, which reversed his conviction and sentence. See Newman v. State, 2010 Ark. App.
643, ___ S.W.3d ___. The State petitioned this court for review, which we granted. When
we grant review, we treat the appeal as if it were originally filed in this court. See T.C. v.
State, 2010 Ark. 240, ___ S.W.3d ___. Here, Newman’s sole point on appeal is that the
circuit court erred in determining that he violated a condition of his probation by performing
carpentry work at a children’s daycare in violation of Arkansas Code Annotated § 5-14-129(a)
(Repl. 2006). Because the plain language of the statute, as written, does not apply to the facts
Cite as 2011 Ark. 112
before us, we reverse Newman’s conviction and sentence and remand.
The record reflects that on March 14, 2007, Newman entered a negotiated plea of
guilty or nolo contendere to a violation of Ark. Code Ann. § 12-12-904 (Supp. 2003) for
failing to register or comply with the requirements for registration of sex offenders; he was
sentenced to probation for twenty-four months. However, on October 28, 2008, the State
filed a petition to revoke Newman’s probation, asserting that he had violated the terms of his
probated sentence. Specifically, as set forth in the violation report attached to the State’s
petition, it was alleged that Newman violated
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 or before 08/19/2008, Mr. Newman
knowingly violated Arkansas Criminal Code 5-14-219 of the Sex Offender
Registration Act of 1997 by working at TLC Daycare.1
A hearing was held on the revocation petition on September 8, 2009, at which
Newman’s probation officer, LaShondra Brown, was the sole witness. She testified that she
was informed that Newman was working at TLC Daycare. She stated that she then called
Newman, who admitted that he had been working at the daycare, but claimed that he had
done so “after-hours.” She testified that after further questioning, Newman admitted that he
had been working at the daycare when children were present and told her that his employer
knew he was a sex offender. She stated that Newman told her that he had been putting up
1
The report further stated that Newman was a Level 4 sex offender, “which classifies
him as a Sexually Violent Predator.”
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Cite as 2011 Ark. 112
doors and doing baseboards at the daycare. Ms. Brown testified that she instructed Newman
“not to return to the daycare or work at a daycare or be anywhere, you know, where kids
congregate.”
Ms. Brown testified that she then called Bobbi Richmond, the owner of the daycare,
who praised Newman. Ms. Brown testified that Ms. Richmond told her that she had not
known previously that Newman was a sex offender, but that he had since called and told her
of his status. Ms. Brown described Ms. Richmond as “shocked.” On redirect, the State
admitted into evidence a “sex offender acknowledgment form” that Newman had signed in
2007. Ms. Brown testified that paragraph seven of the form provided:
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 et seq., and
who has been assessed as a level 3 or level 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 children under sixteen (16) years of age.
She further stated that TLC Daycare had children under sixteen years of age and that
Newman had admitted working at TLC. Following arguments by the State and defense
counsel, the circuit court revoked Newman’s probation and sentenced him to six years’
imprisonment, stating:
We’ve read this sex offender acknowledgment form which was signed by Mr.
Newman and which does require a degree of interpretation. No. Seven in particularly
reads:
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 ‘97, which is Code Provision
12-12-901, etc., 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 children under 16 years of age.
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Cite as 2011 Ark. 112
States–states that fairly clear and succinct. Establishment here has been that the
defendant is a Level 3 sex offender. The daycare where he was working did have
people under the age of 16. One of the parents who have family there who happened
to know that the defendant was a sex offender seemed to have reported him. During
the course of the conversation, other reports came out that the defendant was
transporting a co-worker and her children, as such.
The Court believes and the Court’s interpretation of the sex offender
acknowledgment form and particularly paragraph seven is that the defendant is not
allowed to accept work or to volunteer for assistance to someone that’s going to
require him to work or to interact primarily and/or directly with children. And to
read that and then tell a Level 4 sex offender to go ahead and get in the midst of the
kids as long as your job assignment is not teaching them or taking them to the party,
and to say that we do that the Court believes would be a strained interpretation and
downright ludicrous.
The Court finds the defendant violated the terms and conditions of his
probation and that he should—he signed the form and continued to work. I’m not
exactly sure. The Court is going to revoke his probation. He is on probation on a D
felony. The Court is going to send him to the Department of Correction for a period
of six years.
Set an appeal bond of $10,000.
Newman now appeals.
Newman argues, for his sole point on appeal, that the circuit court erred in revoking
his probation. He contends that he did not violate Ark. Code Ann. § 5-14-129 (Repl. 2006),
as there was no evidence that he worked or interacted with any child under the age of sixteen
years. He further asserts that, even were this court to determine that he violated the statute,
there would remain a question of whether the statute’s provisions were a condition of his
probation, because no copy of his conditions of probation was ever introduced by the State.
The State responds that the legislature’s intent with respect to the statute was obviously
“to keep dangerous sex offenders from assuming authority or caretaking positions with
children.” Therefore, it claims, the circuit court did not err in finding that a sex offender
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working at a daycare center installing doors and baseboards while children were present was
violative of the statute. It further avers that a preponderance of the evidence exists to support
the circuit court’s finding of a probation violation.
We have held that to revoke probation or a suspended sentence, the burden is on the
State to prove the violation of a condition of probation or suspended sentence by a
preponderance of the evidence. See Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002); see
also Ark. Code Ann. § 5-4-309(d) (Repl. 2006). On appellate review, the circuit court’s
findings will be upheld unless they are clearly against a preponderance of the evidence. See
Bradley, supra. Here, the circuit court found that, by violating section 5-14-129(a), Newman
violated a condition of his probation.
The question presented to this court is whether Newman’s carpentry work in a daycare
violated section 5-14-129(a), and it requires us to interpret the statute. This court reviews
issues of statutory interpretation de novo, as it is for this court to decide the meaning of a
statute. See Singleton v. State, 2009 Ark. 594, ___ S.W.3d ___. We construe criminal statutes
strictly, resolving any doubts in favor of the defendant. See id. We also adhere to the basic
rule of statutory construction, which is to give effect to the intent of the legislature. See id.
We construe the 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. See id. Additionally, in construing any statute, we place it beside other statutes
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relevant to the subject matter in question and ascribe meaning and effect to be derived from
the whole. See id.
Section 5-14-129 provides:
(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 Level 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.
(b) A sex offender who is required to register under the Sex Offender
Registration Act of 1997, § 12-12-901 et seq., and who knowingly violates this section
is guilty of a Class D felony.
The plain language of the statute prohibited Newman from working or volunteering in a
position that required him to “work or interact primarily and directly with a child under
sixteen.” Ark. Code Ann. § 5-14-129(a) (emphasis added). “Primarily” is defined as “first
of all” or “in the first place.” Webster’s Third New Int’l Dictionary 1800 (2002). “Directly”
means “[i]n a straightforward manner,” “[i]n a straight line or course,” or “[i]mmediately.”
Black’s Law Dictionary 527 (9th ed. 2009). Thus, giving the words their ordinary and usually
accepted meaning, the statute precluded Newman from working or volunteering in a position
that required him to work or interact “in the first place” and “in a straightforward manner”
with children under the age of sixteen.
Here, the sole evidence presented to the circuit court demonstrated that Newman’s
work at the daycare consisted of putting up baseboards and doors. Such carpentry work was
in no way work or interaction “in the first place” and “in a straightforward manner” with
children under sixteen. While the State urges that Newman’s carpentry work “virtually
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guarantees interaction with the preschool-aged children,” the record simply fails to reflect any
evidence to support the State’s proposition.2
As previously stated, the plain language of the statute, as it is currently written, does
not apply to Newman’s conduct. Therefore, we hold that the circuit court’s finding that
Newman violated a condition of his probation, namely section 5-14-129(a), was clearly
against the preponderance of the evidence, and we reverse Newman’s conviction and sentence
and remand.
Reversed and remanded; court of appeals’ opinion vacated.
G UNTER, J., concurs.
JIM G UNTER, Justice, concurring. While I agree with the majority that the record fails
to reflect any evidence to show that Newman worked primarily and directly with children,
I write separately to point out to the Arkansas General Assembly that the plain language of
this statute, as interpreted by the majority, permits Level 3 and 4 sex offenders to work in
daycare centers and schools where children are present. The plain language of the statute
prohibits sex offenders from working primarily and directly with children, but does not
address the situation, as we have here, where a Level 4 sex offender works in an environment
where children are present, indeed in an environment where children are “captive.” The fact
2
In the alternative, the State urges that Newman’s appeal has no merit because the
revocation was supported by Newman’s nonpayment of his fees and fines. However, as the
State concedes, the nonpayment of fines and fees was not specifically stated as a ground used
by the circuit court in support of its ruling. We therefore decline the State’s invitation to
affirm Newman’s conviction and sentence on that basis.
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that Newman was a contractor and not a staff member is little solace to parents who fear for
their vulnerable offspring.
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