Nance v. State

• Decision Date: 08 May 2014
• Docket Number: No. CR–13–655.,CR–13–655.
• Citation: 433 S.W.3d 872,2014 Ark. 201
• Parties: Sandra NANCE, Appellant/Cross–Appellee v. STATE of Arkansas, Appellee/Cross–Appellant.
• Court: Arkansas Supreme Court

2014 Ark. 201

433 S.W.3d 872

Sandra NANCE, Appellant/Cross–Appellee

v.STATE of Arkansas, Appellee/Cross–Appellant.

No. CR–13–655.

Supreme Court of Arkansas.

May 8, 2014.

Wright, Lindsey & Jennings, LLP, by: Jerry J. Sailings, Michael A. Thompson, Little Rock, and Seth R. Jewell, Little Rock, for appellant.

Dustin McDaniel, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., for appellee.

DONALD L. CORBIN, Associate Justice.

This appeal stems from Appellant Sandra Nance's conviction and sentence on multiple counts of animal cruelty, as well as entry of a supplemental order determining the costs of care and custody of dogs seized from Nance's property. Nance argues the following points on appeal: (1) the circuit court erred in denying her motion to suppress evidence gathered from a search of her property; (2) Arkansas Code Annotated section 5–62–106 (Supp.2011), governing the seizure of animals, violates the Fourteenth Amendment to the United States Constitution, and article II, section 8 of the Arkansas Constitution because it allows the taking of property without due process of law; (3) section 5–62–106 violates article IV, section 2, and amendment 80, section 3 of the Arkansas Constitution because it invades this court's authority to establish rules governing practice and procedure of the courts; and (4) the circuit court erred in refusing to order that all of the seized dogs be returned to her. The State cross- appeals, arguing that the circuit court erred in returning those dogs to Nance, which she had not been convicted of abusing, because she had not paid all reasonable expenses for their care as required by section 5–62–106. We assumed jurisdiction of this appeal because it implicates constitutional questions and issues of statutory interpretation; hence, our jurisdiction is pursuant to Arkansas Supreme Court Rule l–2(a)( l ) and (b)(6) (2013). We affirm the order of the circuit court denying Nance's motion to suppress evidence, but dismiss the appeal and cross-appeal of the circuit court's supplemental order.

The record reflects the following facts. On June 26, 2012, an anonymous caller notified employees at the Pulaski County Humane Society (PCHS) that there were dogs at a location on Sentell Loop in Austin that were housed in the sun, with no access to shade, and in excessively hot temperatures. PCHS referred the caller to the Lonoke County Sheriffs Office. An employee of Cabot Animal Services then contacted PCHS and stated that someone had also called there about the condition of some animals at that same location. Kay Simpson, Director of PCHS and also a certified cruelty investigator, asked her board president, Christine Henderson, to drive by the location and check on the dogs. After Henderson expressed some concern, a decision was made that Simpson and Dr. Teresa Medlock, a PCHS veterinarian, would go to the property to see if they could offer the owners any assistance with the dogs.

Two days later, Simpson, Henderson, her husband Jack Henderson, and Dr. Medlock traveled to the Nance property. While en route, Simpson contacted the Lonoke County Sheriff's Office for assistance, and Sgt. Dennis Sanderson was dispatched to assist the group. Simpson also contacted Nance and asked her to meet them at her properly. At that time, Nance was working in a store she owned, “Smoochie Poochies,” located in Searcy, where she sold puppies and dogs from her kennel. When Nance arrived, Simpson told her about the calls they had received and asked Nance if they could walk through the kennel. Nance agreed and during the walk-through, Simpson noticed that many of the cloths used to provide shade for the dogs were tattered, shredded, and hanging down in the cages. She also noticed some large fans through the area that were not working, and one working fan that was tilted upward. When asked, Nance stated that the fans had stopped working a couple of days prior. Simpson also noticed a misting system that was not spraying the dogs. Simpson also noticed that while some of the dogs had clean water bowls, others had pale-green-tinted water or dark green, blackish water.

While investigating, Simpson and Dr. Medlock both noticed that a lot of the dogs were panting but were not barking much, and others were lying in holes they had dug to stay cool.¹ The women also noticed that a large number of the dogs were “brachycephalic dogs,” meaning they have smaller snouts and have a harder time breathing in extreme heat or cold. They also noticed that some dogs had extremely matted fur, which added to the dogs' heat stress. Simpson and Dr. Medlock both expressed concern about the dogs' well-being and thought it was best to remove the dogs from the property. As a result, Sergeant Sanderson contacted the Lonoke County prosecutor, who then came to the Nance property. After seeing the dogs and the conditions of the kennel, the prosecutor authorized PCHS to seize all the dogs on the property.²

Nance was charged by information in the Lonoke County Circuit Court with three felony counts of aggravated cruelty to animals, in violation of Arkansas Code Annotated section 5–62–104, and ten misdemeanor counts of cruelty to animals, in violation of Arkansas Code Annotated section 5–62–103. During the pendency of the criminal action, the State filed a “Motion for Divestment of Custody,” pursuant to section 5–62–106, asking that custody of the dogs be placed with PCHS, which was caring for the dogs. This motion was filed in the criminal action, with its corresponding criminal-docket number. Nance filed a response to the State's motion and her own “Petition to Determine Custody,” pursuant to section 5–62–106, both also filed with the criminal-docket number. She subsequently filed a corresponding motion seeking to have the circuit court declare section 5–62–106 unconstitutional, and it was also docketed with the criminal-docket number.

Nance also filed a pretrial motion to suppress evidence, asserting that the Lonoke County Sheriff's Office had seized approximately 140 dogs from her premises without a search warrant. Moreover, Nance asserted that none of the exceptions to the warrant requirement were applicable and, thus, any evidence related to the seizure should be suppressed. The circuit court denied the motion to suppress, and Nance was tried by a jury on March 12–14, 2013. The jury found Nance guilty of five misdemeanor counts of cruelty to animals. After the jury was unable to agree on sentencing, the circuit court dismissed the jury and scheduled a hearing to take up the issue of sentencing. On March 29, 2013, the court held a sentencing hearing and sentenced Nance to 100 hours of community service at an animal shelter and payment of a $500 fine; both to be completed within sixty days from entry of the court's order. A written order reflecting the bench ruling was filed of record on June 6, 2013.

After the conclusion of the criminal proceedings, the circuit court held a hearing on April 29, 2013, to address the issue of the costs incurred by PCHS in caring for the dogs, as well as to address cross-motions by the State and by Nance regarding custody of the dogs, and Nance's motion to declare section 5–62–106 unconstitutional. At that hearing, Nance argued that the State's petition for custody of the dogs and costs for their care should be denied because she never received any written notice of the seizure of her dogs as required under section 5–62–106. She further argued that section 5–62–106 did not allow the seizure of her dogs, as it applied only to instances in which there is an animal in a vehicle with a person who is arrested or when animals are fighting. According to Nance, even if the statute is construed more broadly, there was still no basis for the seizure of all the dogs, because there was no testimony that any of the non-brachycephalic dogs had been seized pursuant to the statutory subchapter.

Nance also raised several arguments in support of her claim that section 5–62–106 was unconstitutional. She argued in relevant part that the statute was unconstitutional, both facially and as applied, because it did not comport with requirements of due process. She further argued that she had never been given notice or an opportunity for a timely hearing and that the statute violated separation of powers because policies, procedures, and practices are solely within the purview of this court, not the legislature.

Thereafter, the circuit court entered a supplemental order denying Nance's motion to declare section 5–62–106 unconstitutional; ordering her to pay costs to PCHS of $6,425; divesting Nance of custody of the five dogs that she had been convicted of abusing; and ordering the return of the remaining dogs once Nance complied with the court's orders. Nance filed a timely notice of appeal; the State timely cross-appealed.

As her first point on appeal, Nance argues that the circuit court erred in denying her motion to suppress all evidence related to the seizure of the dogs because the search was made without a warrant and none of the exceptions to the warrant requirement applied. According to Nance, the State had the burden of proving that consent to the search was freely and voluntarily given and that there was no actual or implied duress or coercion. Nance further argues that the evidence demonstrated that, by the time she gave any consent to search, an illegal entry had already occurred and, thus, any consent that followed such an illegal intrusion was tainted and invalid.

The State counters that the circuit court properly determined that Nance freely consented to the search of her property. The State further asserts that Nance's argument that the search had already begun is not preserved for review because the circuit court never ruled on that issue; rather, it limited its decision solely to the issue of consent. The State is correct in both regards.

When reviewing a circuit court's denial of a motion to suppress...