Davidson v. State

• Court: Arkansas Supreme Court
• Writing for the Court: Betty C. Dickey
• Citation: Davidson v. State, 210 S.W.3d 887, 363 Ark. 86 (Ark. 2005)
• Decision Date: 23 June 2005
• Docket Number: No. CR 04-1137.,CR 04-1137.
• Parties: James Orval DAVIDSON, Appellant, v. STATE of Arkansas, Appellee.

210 S.W.3d 887

James Orval DAVIDSON, Appellant, v. STATE of Arkansas, Appellee.

No. CR 04-1137.

Supreme Court of Arkansas.

June 23, 2005.

William R. Simpson, Jr., Public Defender, by: Erin Vinett, Deputy Public Defender, Little Rock, for appellant.

Mike Beebe, Att'y Gen., by: Clayton K. Hodges, Ass't Att'y Gen., for appellee.

BETTY C. DICKEY, Justice.

In 2003, Appellant James Davidson was convicted of two counts of sexually abusing his step-granddaughter, C.D. At trial, the State sought to introduce into evidence a record of Davidson's conviction for sexually abusing C.D. in 1994. Davidson objected to the introduction of this evidence on the ground that the 1994 conviction had been expunged under Act 346, also known as the Arkansas First Offender Act. The trial court overruled the objection and admitted the evidence under the pedophile exception to Ark. R. Evid. 404(b).¹ Davidson appealed this ruling to the court of appeals, who reversed and remanded. We granted the State's petition for review in order to decide the question of whether an expunged conviction is admissible under the pedophile exception to Rule 404(b). Because Davidson failed to include in the record proof that his 1994 conviction was in fact expunged, the trial court's ruling is affirmed.²

According to Davidson, his 1994 conviction was expunged in 1997. He has failed to provide proof, however, that this conviction was expunged in accordance with either Ark.Code Ann. § 16-90-902(Supp.1995), which was in effect when he claims that the conviction was expunged, or Ark.Code Ann. § 16-93-303(b)(1)(1987), which was in effect when he was convicted and placed on probation.

Ark.Code Ann. § 16-90-902 is the current expungement statute, in effect since 1995. It provides:

(a) An individual whose record has been expunged in accordance with the procedures established by this subchapter shall have all privileges and rights restored, shall be completely exonerated, and the record which has been expunged shall not affect any of his civil rights or liberties, unless otherwise specifically provided for by law.

(b) Upon the entry of the uniform order to seal records of an individual, the individual's underlying conduct shall be deemed as a matter of law never to have occurred, and the individual may state that no such conduct ever occurred and that no such records exist.

(Emphasis added.)

The previous version of the expungement statute, which was in effect in 1994, stated:

Upon fulfillment of the terms and conditions of probation or upon release by the court prior to the termination period thereof, the defendant shall be discharged without court adjudication of guilt, whereupon the court shall enter an appropriate order which shall effectively dismiss the case, discharge the defendant, and expunge the record.

Ark.Code Ann. § 16-93-303(b)(1)(Emphasis added).

Davidson failed to include in the record either a petition to seal, order to seal, or notice of expungement, as is required by Ark.Code Ann. § 16-90-902, or a court order of expungement, as was required by Ark.Code Ann. § 16-93-303(b)(1). Davidson therefore has failed to show that his conviction was in fact expunged in accordance with either version of the statute. This court has repeatedly stated that it is the appellant's burden to "bring up a record sufficient to demonstrate that the trial court was in error, and where the appellant fails to meet its burden, this court has no choice but to affirm the trial court." Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999). Because Davidson has failed to prove that his 1994 conviction was expunged in accordance with statute, the trial court's ruling is affirmed.

Affirmed; Court of Appeals Reversed.

HANNAH, C.J., concurs.

JIM HANNAH, Chief Justice, concurring.

I concur in the decision to affirm the circuit court, but I write separately because I base my conclusion on a different analysis. Davidson asserts that the circuit court erred in admitting court documents showing that he entered a deferred plea of no contest¹ under Act 346 of 1975 to sexual abuse of C.D. in 1994. More specifically, Davidson argues that the admission of an expunged deferred plea of guilty under Act 346 of 1975 is not admissible under Ark. R. Evid. 404(b) as evidence of other crimes, wrongs or acts.

I note first that the majority is in error in its analysis of evidence of the expungement. A portion of the docket and the order under Act 346 in the earlier Pulaski County Circuit Court case No. 93-2697A are contained in the record on appeal and were before the circuit court. The word "EXPUNGED" is stamped in bold black letters about one and one-quarter inches tall on both documents. No one who sees the documents can help but notice the stamp. There is also a circuit clerk's certificate that the documents are "true and correct copies." However, despite this evidence, the majority states that the case is affirmed for failure "to include in the record proof that his 1994 conviction was in fact expunged. . . ." It is difficult to understand how anyone could question that the matter was expunged.

The majority states that more is required to prove expungement and asserts that Ark.Code Ann. § 16-90-902 (Supp. 1995) and Ark.Code Ann. § 16-90-303(b)(1) (1987) require submission of "either a petition to seal, order to seal, or notice of expungement" or "court order of expungement."² I disagree. Neither statute speaks to the proof required in a subsequent criminal action to show that a deferred plea of guilty was expunged. Nonetheless, the majority relies upon language in these statutes as setting out the required proof that must be presented at trial. The majority cites to "expunged in accordance with the procedures established by this subchapter . . . Upon the entry of the uniform order to seal records of an individual" in Ark.Code Ann. § 16-90-902³ and on "the court shall enter an appropriate order which shall effectively dismiss the case, discharge the defendant and expunge the record" in Ark.Code Ann. § 16-93-303. The certified copies of the order of suspension and probation as well as the docket excerpt clearly shows that the matter was expunged.

However, I believe that the information regarding the prior admission of guilt is admissible because neither the plain and unambiguous language of Act 346, nor the apparent legislative intent behind Act 346 prohibits the use of an expunged crime in a subsequent criminal proceeding where the prior plea of guilty is relevant. The preamble to Act 346 states that judicial discretion in disposition of first offenders was too limited, "unduly harsh and restrictive . . . ." The purpose of acts permitting expungement is to provide a means for those who have committed a first offense to avoid a criminal conviction. See United States v. Arrington, 618 F.2d 1119 (5th Cir.1980). The intent is to provide a "fresh start."

In Powers v. Bryant, 309 Ark. 568, 832 S.W.2d 232 (1992), this court discussed the effect of expungement and rejected a "rigid constitutional interpretation" of the term, noting that under the federal expungement act, expungement "Actually removed the fact of a conviction." Powers, 309 Ark. at 571, 832 S.W.2d 232. In Tyler v. Shackleford, 303 Ark. 662, 799 S.W.2d 789 (1990), we quoted Arrington, supra, where the Fifth Circuit Court of Appeals stated that under the federal expungement act, "the disabilities of a criminal conviction are completely and automatically removed; indeed, the conviction is set aside as if it had never been." Arrington, 618 F.2d at 1124.

We first addressed the issue of admissibility of evidence of an expunged deferred guilty plea in Gosnell v. State, 284 Ark. 299, 681 S.W.2d 385 (1984),⁴ where we allowed the evidence of an expunged conviction in sentencing on the issue of habitual offender status, stating without analysis that the expungement statutes do not state that a person is "free to commit more felonies without accountability as an habitual offender." Gosnell, 284 Ark. at 301, 681 S.W.2d 385. Similarly in Baxter v. State, 324 Ark. 440, 922 S.W.2d 682 (1996), prior criminal cases expunged under Act 346 were held admissible because under Ark.Code Ann. § 5-4-504 (1987), enhancement in sentencing was allowed where there was either a conviction or where a person was "found guilty. . . ." Baxter, 324 Ark. at 445, 922 S.W.2d 682. A deferred plea of guilt constitutes an admission of guilt, and the criminal defendant is thus found guilty. One year later in White v. State, 330 Ark. 813, 958 S.W.2d 519 (1997), this court affirmed a circuit court's decision to admit evidence of expunged deferred guilty pleas under Act 346, again noting that Ark.Code Ann. § 5-4-504 (1987) only required a finding of guilt. A plea of guilty offered to the court in Act 346 cases has therefore been held by this court to be a finding of guilt. In Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), this court affirmed admission of evidence of a prior robbery expunged under Act 346 because it was relevant as an aggravating circumstance.

There are also additional terms of Act 346 that are helpful in this analysis. Section 1 of Act 346 provided that "`expunge' shall not mean the physical destruction of any official records of law enforcement agencies or judicial officials."⁵ Additionally, Section 5 of Act 346,⁶ providing that divulging expunged information constituted a misdemeanor, excepted giving the information to "a law enforcement officer or judicial officer. . . ." If the records are not to be destroyed and are to be available to law enforcement and the courts, then there must be a post-expungement use for the records.

It should also be noted that in Act 1407 of 1999, the legislature added paragraph (B) to Ark.Code Ann. § 16-93-303 and paragraph (a)(3) to Ark.Code Ann. § 16-90-901. The additions are nearly identical. Section 16-93-303 (Supp.1999) provides:

Provided, however, that no person who pleads guilty or nolo...