Owens v. State

• Decision Date: 06 November 2003
• Docket Number: No. CR 03-231.,CR 03-231.
• Citation: 128 S.W.3d 445,354 Ark. 644
• Parties: Rodney Parker OWENS v. STATE of Arkansas.
• Court: Arkansas Supreme Court

128 S.W.3d 445

354 Ark. 644

Rodney Parker OWENS v. STATE of Arkansas.

No. CR 03-231.

Supreme Court of Arkansas.

November 6, 2003.

Keith, Miller, Butler & Webb, by: Andrew R. Miller, Rogers, for appellant.

Mike Beebe, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.

DONALD L. CORBIN, Justice.

Appellant Rodney Parker Owens was charged in the Benton County Circuit Court with the offense of attempting to evade or defeat the payment of tax, a Class C felony, in violation of Ark. Code Ann. § 26-18-201 (Repl.1997). The jury convicted him of the lesser-included offense of failure to pay tax, a Class D felony, in violation of Ark.Code Ann. § 26-18-202 (Repl.1997). He was sentenced to pay a $10,000 fine, plus $150 in court costs. He raises seven points for reversal, three of which are issues of first impression in this state. Our jurisdiction is thus pursuant to Ark. Sup.Ct. R. 1-2(b)(1). We find no error and affirm.

Because Appellant does not challenge the sufficiency of the evidence to convict him, it is not necessary to recite the facts in great detail. Suffice it to say that on August 12, 1997, Appellant purchased a 1989 Vogue IV, thirty-seven-foot motor home in Pryor, Oklahoma. Appellant and his wife resided in Arkansas at the time. He did not register and license the motor home with the State of Arkansas. Instead, he registered the vehicle with the State of Oregon. At the time, Oregon law did not require the payment of any tax upon registering a motor home; however, Arkansas law did. It is undisputed that Arkansas law in effect at the time of purchase required Appellant to register and license the vehicle within twenty days after its purchase, which would have been September 2, 1997. The tax owed on the vehicle would have been due at the time of registration.

On March 22, 1999, after reading a newspaper article stating that it was wrong for an Arkansas resident to register a vehicle in another state, particularly Oregon, Appellant contacted the revenue department and transferred the registration of the motor home to Arkansas. He also obtained an Arkansas license plate for the vehicle. He did not, however, pay the outstanding tax due on the motor home. Around this time, the Arkansas State Police began investigating Arkansas residents who were registering vehicles in Oregon. The investigation eventually led to Appellant's arrest on December 13, 2001. At the time, Appellant was a district judge for the district court of Benton County West and was also a municipal judge for several cities.

A criminal information was filed on the date of his arrest, charging Appellant with the Class C felony of attempting to evade or defeat the payment of sales tax on the motor home. On June 2, 2002, the charge was amended to the Class C felony of attempting to evade or defeat the payment of use tax. In the interim, on April 12, 2002, Appellant paid the tax owed plus interest. Appellant was tried before a jury and was convicted of the lesser-included charge of failure to pay tax. The judgment was entered on August 6, 2002. Appellant filed a timely notice of appeal and now raises seven allegations of error.

I. Statute of Limitations

For his first point for reversal, Appellant argues that the trial court erred in applying the six-year statute of limitations found in Ark.Code Ann. § 26-18-306(j) (Repl.1997), rather than the general three-year statute of limitations for Class C felonies, found in Ark.Code Ann. § 5-1-109(b)(2) (Repl.1997). He contends that if the three-year period controls, the prosecution was not timely commenced. If, on the other hand, the six-year limitations period controls, his prosecution was timely commenced. This court has not heretofore interpreted the limitations period in section 26-18-306(j). We now hold that the trial court was correct to apply this limitations period.

Section 26-18-306, titled "Time limitations for assessments, collection, refunds, and prosecution," provides in pertinent part:

(j) No person shall be prosecuted, tried, or punished for any of the various criminal offenses arising under the provisions of any state tax law unless the indictment of the taxpayer is instituted within six (6) years after the commission of the offense.

Section 5-1-109(b)(2), on the other hand, provides that prosecutions for Class C felonies must be commenced within three years. During the hearing below, Appellant contended that the general limitations period found in section 5-1-109 should govern, while the prosecutor argued that the more specific provision found in section 26-18-306, which is included in the chapter on state tax law, should control.

The trial court agreed with the prosecutor, finding that the plain language of section 26-18-306(j) applied to the charge of willful tax evasion against Appellant. The trial court found significant that section 26-18-306(j) specifically applied to criminal prosecutions under the provisions of any state tax law. The court also found significant the fact that section 26-18-306(j) was enacted four years after section 5-1-109 and that Ark.Code Ann. § 26-18-103 (Repl.1997) specifically provides that in the event of a conflict with any state law, the provisions of that chapter shall control. We affirm this ruling.

It is a well-settled principle of law that a general statute does not apply when a specific one governs the subject matter. See, e.g., Ozark Gas Pipeline Corp. v. Arkansas Pub. Serv. Comm'n, 342 Ark. 591, 29 S.W.3d 730 (2000); L.H. v. State, 333 Ark. 613, 973 S.W.2d 477 (1998); Williams v. City of Pine Bluff, 284 Ark. 551, 683 S.W.2d 923 (1985); Ridgeway v. Catlett, 238 Ark. 323, 379 S.W.2d 277 (1964). Section 26-18-306(j) specifically provides a six-year limitations period for prosecutions for "any of the various criminal offenses arising under the provisions of any state tax law." "State tax law" means, inter alia, laws contained in Chapter 18 of Title 26 of the Arkansas Code. See Ark.Code Ann. § 26-18-104(13) (Repl.1997). Appellant was charged with violating one of those "state tax laws," specifically with willfully attempting to evade or defeat payment of a tax, as provided in section 26-18-201. Accordingly, his prosecution is governed by the six-year statute of limitations provided in section 26-18-306(j). If this conclusion was not clear enough from the plain language of the foregoing provisions, it is made eminently clear from the language in section 26-18-103, which provides in part that "in the event of conflict with any state law, this chapter shall control." (Emphasis added.) We thus affirm the trial court's ruling on this point.

II. Motion to Dismiss

For his second point on appeal, Appellant argues that the trial court erred in denying his motion to dismiss because his conduct was not of the type prohibited by Chapter 18 of Title 26. Rather, he asserts that the provisions of Chapter 18 specifically do not apply to the failure to pay tax due on a vehicle. To support his argument, he relies on Ark.Code Ann. § 26-18-102 (Repl.1997), which provides in pertinent part:

The purpose of this chapter is to provide, as far as possible, uniform procedures and remedies with respect to all state taxes except the following:

(1) Certificates of Title—Registration—Anti Theft Provision, § 27-14-101 et seq.; [Emphasis added.]

Appellant asserts that an individual only has a legal duty to pay sales or use tax upon a vehicle when registering that vehicle pursuant to our registration laws contained in Chapter 14 of Title 27 of our Code. The essence of his argument is that the act of registration was the mechanism that triggered the legal obligation to pay use tax. Thus, he claims that he could not be charged under section 26-18-201 for willfully attempting to evade paying the use tax, because it arose pursuant to his duty to register the vehicle. This issue is one of first impression, as this court has yet to interpret section 26-18-102.

The State asks us to affirm on this point because Appellant has failed to cite to any legal authority or make any convincing argument to support this point. Notwithstanding this failure, the State asserts that the trial court did not err in denying Appellant's motion to dismiss because it is clear that Appellant was not charged for violating the registration laws. Rather, he was charged with willfully attempting to evade the payment of use tax, pursuant to Ark.Code Ann. § 26-53-126 (Repl.1997). We agree.

This court has made it exceedingly clear that it will not consider an assignment of error when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. See, e.g., Weatherford v. State, 352 Ark. 324, 101 S.W.3d 227 (2003); Wooten v. State, 351 Ark. 241, 91 S.W.3d 63 (2002); Hollis v. State, 346 Ark. 175, 55 S.W.3d 756 (2001). Appellant has cited nothing other than the statutes noted above to support his position, and he has failed to make any convincing argument on the issue, other than to state that to include his conduct under section 26-18-201 "would create the possibility of owners of non-moving vehicles being subjected to felony prosecutions."

Moreover, it is not otherwise apparent that his argument on this point is well taken. Appellant was not charged with having violated a provision of the vehicle-registration laws, such as the failure to register his motor home. Instead, as the State points out, he was charged with having willfully attempted to evade paying use tax on his motor home, pursuant to section 26-53-126, which provides in pertinent part:

(a)(1)(A)(i) All new and used motor vehicles, trailers, or semitrailers required to be licensed in this state shall, upon being registered in this state, be subject to the tax levied herein and all other use taxes levied by the state irrespective of whether such motor vehicle, trailer, or semitrailer was purchased from a dealer or an...