State v. Miller , 2013 Ark. 329 ( 2013 )

Cite as 2013 Ark. 329SUPREME COURT OF ARKANSAS
No. CR-12-1034
STATE OF ARKANSAS Opinion Delivered September 19, 2013
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT
[NO. CR1990-1238]
EDWARD MILLER HONORABLE WENDELL LEE
APPELLEE GRIFFEN, JUDGE
AFFIRMED.
PAUL E. DANIELSON, Associate Justice
The State of Arkansas appeals from the order of the Pulaski County Circuit Court
terminating Appellee Edward Miller’s obligation to register as a sex offender. The State’s sole
point on appeal is that the circuit court erred by concluding that Miller no longer posed a
threat to the safety of others, thereby finding that he had met the statutory requirements to
have his obligation to register as a sex offender terminated. We affirm.
In January 1991, Miller pleaded guilty to the felony offense of first-degree sexual abuse
and the misdemeanor offense of second-degree false imprisonment. In exchange, he received
a twenty-year prison sentence for the felony. Miller was paroled from the Department of
Correction on July 7, 1995, and was required to register as a sex offender. In May 2012,
Miller filed a pleading pursuant to Arkansas Code Annotated section 12-12-919(b)(2),
seeking an order terminating his obligation to register as a sex offender. After a hearing on
Cite as 2013 Ark. 329the matter, the circuit court entered an order finding that Miller had been released from
prison for over fifteen years, Miller had not committed a sexual offense in the past fifteen
years, Miller was not likely to pose a threat to the safety of others, and, therefore, that Miller
was no longer required to register as a sex offender. It is from that order that the State
appeals.
In a State appeal, we first determine if the issue is properly before us under Rule 3 of
the Arkansas Rules of Appellate Procedure–Criminal before we reach the merits. However,
as the State asserts in its informational statement, the instant appeal is civil in nature. This
court has previously held that although a case may be docketed with a “CR” number, the
State need not satisfy the requirements of Rule 3 if the matter is neither a direct nor an
interlocutory appeal following a prosecution, but is an appeal arising from a collateral
procedure and is civil in nature. See, e.g., State v. Estrada, 2013 Ark. 89, ___ S.W.3d ___ (a
State appeal from a circuit court’s grant of a Rule 37.1 petition); State v. Tyler, 2010 Ark. 307(a State appeal from an order to seal criminal convictions); State v. Wilmoth, 369 Ark. 346,
255 S.W.3d 419 (2007) (a State appeal from an order of the circuit court granting a
defendant’s motion to dismiss certain charges on the basis that his right to speedy trial had
been violated). Because this is a collateral proceeding, the State need not satisfy the
requirements of Rule 3.
Pursuant to Arkansas Code Annotated section 12-12-919(b)(1) (Repl. 2009), a sex
offender previously obligated to register on the Arkansas Sex Offender Registry may apply
to the sentencing court for an order terminating that obligation fifteen years after either the
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Cite as 2013 Ark. 329release from incarceration or other institution or having been placed on probation or any
other form of community supervision by the court. See also Harrell v. State, 2012 Ark. 421.
Subsection (b)(2) further instructs that,
(2) The court shall grant an order terminating the obligation to register upon proof by
a preponderance of the evidence that:
(A) The applicant placed on parole, supervised release, or probation has not been
adjudicated guilty of a sex offense for a period of fifteen (15) years after the
applicant was released from prison or other institution; and
(B) The applicant is not likely to pose a threat to the safety of others.
Ark. Code Ann. § 12-12-919(b)(2)(A), (B).
After holding a hearing on August 20, 2012, and considering all the evidence and
testimony presented, the circuit court granted Miller’s petition to terminate his obligation to
register as a sex offender. In doing so, it found that Miller had met the statutory
requirements, including that he was not likely to pose a threat to the safety of others. It is that
specific finding that the State now challenges on appeal. Bench trials of civil matters
occurring on or after July 1, 1979, are subject to the clearly erroneous standard of review. See
Ark. R. Civ. P. 52; see also State v. Jernigan, 2011 Ark. 487, 385 S.W.3d 776.
Six witnesses testified in support of Miller. Each of those witnesses testified that in the
time they had known him, they had not seen Miller act violent or behave in an inappropriate
manner toward other people. Those witnesses also discussed the strides that Miller had made
toward sobriety and the steps he had taken to change his life. Seven other individuals wrote
letters to the court on Miller’s behalf. Two witnesses testified on behalf of the State, only one
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Cite as 2013 Ark. 329of which discussed his character.
Sherri Flynn, administrator of the Sex Offender Screening and Risk Assessment
(SOSRA) program, testified that she had witnessed Miller being difficult and aggressive at an
assessment. Her testimony was that Miller had jerked his hand away repeatedly when her staff
tried to administer a finger prick for a DNA sample, that he raised his voice, and that he
would not leave when he was first asked and “had a glare.” However, on redirect
examination, Flynn admitted in questioning that Miller was upset and not in a good mood
when all this happened, he did not strike her, and he did not swing at her or do anything
violent. His resistance according to Flynn was that he wouldn’t leave the chair, was trying
to explain to her what happened, and was talking aggressively. She admitted that “he basically
sat in the chair until someone said ‘you’ve got to go’ and he left.” After the incident that
Flynn described, Miller was apparently assigned by the SOSRA staff a certain default score on
his risk assessment because of his behavior. Miller appealed that score, and it was brought
down a level.
In addition to the other witnesses called, Miller testified on his own behalf. While the
State takes issue that Miller did not seem to “admit straightforwardly the violent nature of his
crimes,” the State’s own witness testified that, from the beginning of this case, Miller
maintained that he did not do all of which he was accused. Flynn testified that, “[h]is version
of the facts and why he pled guilty was pretty much the same thing it was today, which
[effectively was], he was there, he had sex with her, but he didn’t force her.” Section 12-12-
919 contains no provision that the petitioner admit guilt.
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Cite as 2013 Ark. 329This court has long held that we defer to the circuit court’s superior position in
determining the credibility of the witnesses. See Livingston v. State, 2013 Ark. 264, ___
S.W.3d ___. The circuit court expressed that it was impressed with witnesses on both sides,
but believed that Miller had demonstrated that he was ready to have the obligation to register
lifted. We have no basis or authority to substitute our judgment for that of the circuit court.
Therefore, this court cannot hold that the circuit court clearly erred in finding that Miller is
not likely to pose a threat to the safety of others, and we must affirm.
Affirmed.
Dustin McDaniel, Att’y Gen., by: David R. Raupp, Senior Ass’t Att’y Gen., for
appellant.
James Law Firm, by: William O. “Bill” James, Jr. and Lee D. Short, for appellee.
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