State v. Hagan-Sherwin

• Decision Date: 08 April 2004
• Docket Number: No. CR 03-249.,CR 03-249.
• Citation: 356 Ark. 597,158 S.W.3d 156
• Parties: STATE of Arkansas v. Debbie HAGAN-SHERWIN.
• Court: Arkansas Supreme Court

158 S.W.3d 156

STATE of Arkansas v. Debbie HAGAN-SHERWIN.

No. CR 03-249.

Supreme Court of Arkansas.

April 8, 2004.

Mike Beebe, Att'y Gen., by: David R. Raupp, Senior Ass't Att'y Gen., Little Rock, for appellant.

Knutson Law Firm, by: Gregg A. Knutson, Little Rock, for appellee.

BETTY C. DICKEY, Chief Justice.

The State appeals an order of the Pulaski County Circuit Court, acquitting appellee Debbie Hagan-Sherwin on two counts of violating Ark.Code Ann. § 23-64-223 (Repl.2001), and declaring a mistrial on the remaining four counts. The State claims that the trial court committed prejudicial error by instructing the jury with the choice-of-evils defense and a non-statutory defense of entrapment by estoppel. Ms. Hagan-Sherwin contends that this case is not properly appealable by the State under Rule 3 of the Arkansas Rules of Appellate Procedure-Criminal. We agree and dismiss the State's appeal.

On December 13, 2002, appellee Debbie Hagan-Sherwin was charged with six counts of violating Ark.Code. Ann. § 23-64-223 (Repl.2001). Each count alleged that Hagan-Sherwin either diverted or appropriated to her own use insurance premium monies in violation of the statute. In June 2002, the appellee's motion to dismiss the charges against her was denied, and the case went to trial in early October 2002.

At trial, the appellee testified that in 1997 she bought Campbell and Company insurance agency. After the purchase, she discovered that the company was worth over a million dollars less than the books had reflected. Campbell's wife performed an audit of Campbell and Company's books, confirming that over a million dollars was missing. Harold Campbell, the former owner of Campbell and Company, owned 20 percent of the bank, and the bank refused to renew appellee's one million dollar line of credit. The appellee failed to obtain a loan or other capital infusion in order to continue coverage for her insureds.

At a meeting with the Arkansas Insurance Department ("the Department"), appellee stated that she lacked sufficient cash to pay upcoming bills. The Department and the appellee agreed that, to avoid a lapse in coverage for her insureds, she must sell her agency. Bob Roddey of the Department told the appellee to do whatever she had to do to keep the doors open at her insurance agency. Hagan-Sherwin told both Roddey and Lanita Blasingame, also of the Department, that she was diverting monies from premiums in order to pay operating expenses. Gregory Shadducks, a former investigator for the Department, testified that they were aware that the appellee was using premium monies for operating expenses. Shadducks said at no time did they ever tell the appellee to stop, or that it was wrong, or that she could not use premium monies to keep the business in operation. Roddy testified that at no time did he tell her that using money from premiums to pay operating expenses was legal or that she should do that.

The appellee decided to try and sell her agency to two out-of-state companies, Travelers and Hartford. Unfortunately, according to the appellee, Joie Tester from the Department called the Travelers' financial division and told them Hagan-Sherwin was having financial difficulties, which summarily killed the deal. The company was put into receivership and later went out of business. The appellee testified, and the Department concurred, that had the sale gone through, not a single one of the appellee's insured would have lost one second of coverage.

The appellee moved for a directed verdict at the close of the State's case, again at the close of the defendant's case, and a third time, at the close of all evidence. All three motions for directed verdict were denied. Over the State's objections, the circuit court instructed the jury on the affirmative defense of choice-of-evils from AMCI 2d 702, and the court gave a non-model jury instruction on the affirmative defense of entrapment by estoppel. The jury acquitted the appellee on counts two and six, but the jury could not reach a verdict on the remaining four counts. On January 15, 2003, the trial court entered an order consistent with those verdicts, and the State appealed.

The State brings two points on appeal: 1) the circuit court erred by instructing the jury with the statutory defense of choice-of-evils; and 2) the circuit court erred by instructing the jury with a non-statutory affirmative defense of entrapment by estoppel, or alternatively that the instruction misstated the law. The threshold issue of this case is whether the State has properly brought this appeal under Ark. R.App. P.-Crim. 3. The rule provides in pertinent part:

When a notice of appeal is filed pursuant to either subsection (a) or (b) of this rule, the clerk of the court in which the prosecution sought to be appealed took place shall immediately cause a transcript of the trial record to be made and transmitted to the attorney general, or delivered to the prosecuting attorney, to be by him delivered to the attorney general. If the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the state, and that the correct and uniform administration of the criminal law requires review by the Supreme Court, he may take the appeal by filing the transcript of the trial record with the clerk of the Supreme Court within sixty (60) days after the filing of the notice of appeal.

Ark. R.App. P.-Crim. 3(c) (2003). The appellee contends that this case is not appealable by the State because it does not raise an issue "important to the correct and uniform administration of the criminal law" as required under Rule 3(c). In State v. Ashley, we laid out the jurisdictional requirement for an appeal by the State as follows:

In criminal cases, we accept appeals by the State in limited circumstances. State v. McCormack, 343 Ark. 285, 34 S.W.3d 735 (2000). This court has held our review of a State appeal is not limited to cases that would establish precedent. State v. Gray, 330 Ark. 364, 955 S.W.2d 502 (1997). Moreover, there is a significant and inherent difference between appeals brought by criminal defendants and those brought on behalf of the State. The former is a matter of right, whereas the latter is not derived from the Constitution, nor is it a matter of right, but is granted pursuant to Rule 3. State v. Guthrie, [341 Ark. 624, 19 S.W.3d 10 (2000)] supra; State v. McCormack; supra. We accept appeals by the State when our holding would be important to the correct and uniform administration of the criminal law. Rule 3(c). As a matter of practice, this court has only taken appeals which are narrow in scope and involve the interpretation of law. State v. Banks, 322 Ark. 344, 909 S.W.2d 634 (1995). Where an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994).

Appeals are not allowed merely to demonstrate the fact that the trial court erred. State v. Stephenson, 330 Ark. 594, 955 S.W.2d 518 (1997); State v. Spears, 123 Ark. 449, 185 S.W. 788 (1916). Thus, where the resolution of the issue on appeal turns on the facts unique to the case, the appeal is not one requiring interpretation of our criminal rules with widespread ramification, and the matter is not appealable by the State. State v. Guthrie, supra; State v. Howard, 341 Ark. 640, 19 S.W.3d 4 (2000); State v. Gray, 330 Ark. 364, 955 S.W.2d 502 (1997); State v. Edwards, 310 Ark. 516, 838 S.W.2d 356 (1992) ("Here, the State questions the trial court's application of our rule to the facts at hand and not its interpretation, so the appeal must be dismissed."). This court will not even accept mixed questions of law and fact on appeal by the State. State v. Gray, supra; State v. Edwards, supra; State v. Hart, 329 Ark. 582,329 Ark. 582, 952 S.W.2d 138 (1997) ("Because the issue presented in this appeal involves a mixed question of law and fact, an interpretation of our rules with widespread ramifications is simply not at issue here."). Likewise, where an appeal raises the issue of application, not interpretation, of a statutory provision, it does not involve the correct and uniform administration of the criminal law and is not appealable by the State. State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995); State v. Mazur, 312 Ark. 121, 847 S.W.2d 715 (1993).

State v. Ashley, 347 Ark. 523, 66 S.W.3d 563 (2002).

As to the State's assertion of error in instructing the jury with the statutory defense of choice-of-evils, we first consider the circumstances under which the State may appeal the giving of a particular jury instruction. In the case sub judice, the State contends that the statutory affirmative defense of choice-of-evils should not have been given in a case that does not involve imminent physical injury or destruction of property. In State v. McCormack, 343 Ark. 285, 34 S.W.3d 735 (2000), we considered the issue of whether the State may challenge the giving, or not giving, of a particular jury instruction. In McCormack the State appealed the trial court's refusal to give a certain jury instruction. There we dismissed and explained that a proper appeal by the State would include an issue of statutory interpretation and would not include a review of a trial court's application of a statutory provision. Id. In other words, we said we will review a trial court's refusal to give a jury instruction if it has misinterpreted a statute, but we will not review a trial court's refusal to give a jury instruction based on an alleged misapplication of the statute to the facts surrounding a particular case. Id; see also State v. Hulum, 349 Ark. 400, 78 S.W.3d 111 (2002) (citing McCormack, supra.). Applying these principles to the present case, we must determine whether the trial court interpreted the language of ...