Watkins v. State

HART, J., dissenting.

I dissent for two reasons. First, I believe that the majority opinion completely ignores all of our jurisprudence concerning appellate-issue preservation. Secondly, I simply cannot accept what the majority has, perhaps ’unwittingly, done to our civil liberties.

This case involves a pro se appellant challenging her conviction for disorderly conduct that occurred on her own property and as a result of her attempt to get the police to stop a tree service hired by the Paragould Electric Company from destroying her trees. There are three points raised on appeal, and I agree that the majority was correct when it found that two of these points are clearly not preserved for appellate review. I cannot explain why they believe |nthat the third point, which is ostensibly a challenge to the sufficiency of the evidence, was not similarly barred.

There can be no dispute that Ms. Watkins’s trial counsel preserved a challenge to the sufficiency of the evidence in the trial court by the most thorough motion to dismiss that I can recall seeing in all the cases I have reviewed on this court. However, while the motion to dismiss, made by an experienced criminal-defense lawyer, was nearly perfect, the argument on appeal, made by a pro se appellant was very far from perfect. Indeed, try as I might, I could not find where the appellant made any argument that tracked any of the elements of the offense. Accordingly, Ms. Watkins changed her argument on appeal, and we should have treated this case the very same way we have treated literally hundreds of other cases where the appellant has raised an argument on appeal that was different from the argument that he or she made to the trial court and refused to reach the merits. I submit that it is our constitutional duty to treat all litigants equally.

However, while it would be bad enough that the majority has ignored our preservation jurisprudence, the decision on the merits is simply appalling. Today’s opinion has criminalized “body language,” uttering a sibilant expletive — the woman said Shit! — and walking on a person’s own property when another party sets out orange cones marking an invisible line, even though that other party may be trespassing.

Moreover, I cannot ignore the fact that this case involved a warrentless misdemeanor arrest. That means that the act complained of had to be committed in the presence of the | ^arresting officer. Ark. R.Crim. P. 4(a)(iii); Ark.Code Ann. § 16-81 — 106(c)(1) (Repl.2005). Further, this case is unusual in that the arresting officer made an audio recording of everything that transpired. The majority had not only the tape itself, but a complete transcript. Yet, the majority credits, and quotes at length, testimony that was belied by the audio tape and conduct that was not observed by the arresting officer. 2

. The majority’s contention that the audiotape was "unintelligible” is misguided. This assertion is belied by the fact that the State was able to produce a transcript of her remarks. While there is some background noise on the tape, Ms. Watkins remarks are clear. I concede that great deference is given to the trial court’s determination of a witness's credibility, that deference is not absolute. The supreme court has stated that it will not rely on testimony that is "inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon.” Brown v. State, 374 Ark. 341 , 288 S.W.3d 226 (2008). When testimony diverges from what is recorded, as it does here, it is at least "inherently improbable,” if not "so clearly unbelievable that reasonable minds could not differ.”