State v. Khabeer

Cite as 2014 Ark. 107

SUPREME COURT OF ARKANSAS
No. CR-13-784

STATE OF ARKANSAS Opinion Delivered March 13, 2014
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT
[NO. 60CR-1988-1155]
SAMUEL KHABEER
APPELLEE HONORABLE BARRY SIMS, JUDGE

AFFIRMED.

DONALD L. CORBIN, Associate Justice

Appellant, the State of Arkansas, appeals from the order of the Pulaski County Circuit

Court granting the motion of Appellee, Samuel Khabeer, to terminate his obligation to

register as a sex offender. The State also appeals from the order denying its motion for

reconsideration. The State’s sole point on appeal is that the circuit court erred in terminating

his obligation to register as a sex offender upon concluding that Appellee was not likely to

pose a threat to the safety of others. We cannot say that the circuit court’s decision was

clearly erroneous and therefore affirm.

Appellee entered a negotiated plea of guilty to one count of first-degree sexual abuse

in April 1989. The Pulaski County Circuit Court entered an order on April 24, 1989, nunc

pro tunc to April 12, 1989, sentencing Appellee to ten years’ probation. In March 2013,

Appellee filed a motion pursuant to Arkansas Code Annotated section 12-12-919 (Repl. 2009

& Supp. 2013), in which he asked the Pulaski County Circuit Court to terminate his
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obligation to register as a sex offender. At the conclusion of a hearing held on May 28, 2013,

the circuit court ruled from the bench and granted the motion without explanation. A

written order was entered of record the same day also granting the motion without

explanation. After filing a timely motion for reconsideration, which the circuit court denied

by written order filed July 1, 2013, the State filed the instant appeal from both the order

granting Appellee’s motion and the order denying the State’s motion for reconsideration.

Because this is a collateral proceeding that is civil in nature despite having been assigned a

criminal docket number, the State need not satisfy the requirements of Rule 3 of the Arkansas

Rules of Appellate Procedure–Criminal governing State appeals in criminal cases. State v.

Miller, 2013 Ark. 329.

Our review of the circuit court’s decision in a civil bench trial is subject to the clearly

erroneous standard, as provided in Rule 52 of the Arkansas Rules of Civil Procedure. Miller,

2013 Ark. 329. A finding is clearly erroneous when, although there is evidence to support

it, after reviewing the entire evidence, we are left with the definite and firm conviction that

a mistake has been committed. Johnson v. State, 2014 Ark. 74. Disputed facts and

determinations of credibility are within the province of the fact-finder. State v. Jernigan, 2011

Ark. 487, 385 S.W.3d 776.

This court recently explained the statutory procedure at issue in this appeal as

established by the General Assembly and interpreted by this court:

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

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after either the release 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).

Miller, 2013 Ark. 329, at 2–3.

We turn now to the merits of the State’s appeal in this case. For reversal, the State

contends that the circuit court clearly erred in concluding that Appellee was not likely to pose

a threat to the safety of others and could therefore be relieved of his obligation to register as

a sex offender. The State points out that Appellee was the sole witness to testify in support

of his motion and that he did not specifically address the statutory requirement that he was

not likely to pose a threat to the safety of others. Instead, Appellee testified about the sex

crime to which he pleaded guilty and two, more recent, crimes that the State describes as

violent crimes—one for resisting arrest in 1998 and one for third-degree domestic battery in

2008. The State emphasizes its lengthy cross-examination of Appellee about all three crimes

and his application for a pardon in which Appellee blamed others for his conduct. The State

also emphasizes on appeal the arguments raised in its motion to reconsider, wherein the State

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recounted Appellee’s testimony and emphasized his lack of remorse, his more recent crimes,

and his stated desire to work with children as a high school teacher and coach.

The State asserts that this is not a case involving the circuit court’s judgment of

credibility to which we must defer. Rather, the State views this case as one in which

Appellee did not meet his burden of proof on the statutory requirement that he is not likely

to pose a threat to the safety of others. In short, the State maintains that the record

demonstrates that the circuit court made a mistake. To the extent that the State’s argument

is a challenge to the sufficiency of the evidence, we note that Rule 52(b)(2) provides that the

question of the sufficiency of the evidence to support the findings made in a bench trial “may

thereafter be raised whether or not the party raising the question has made in the circuit court

an objection to such findings or has made a motion to amend them or a motion for

judgment.” Ark. R. Civ. P. 52(b)(2) (2013).

Appellee responds that the State’s assertion that there is no credibility issue here is

simply incorrect. Appellee maintains that the circuit court heard his testimony, both on direct

examination and cross-examination, and then made a credibility judgment that he was not

likely to pose a threat to the safety of others. To support this decision of the circuit court,

Appellee emphasizes his testimony that it had been twenty-three years since the crime to

which he pleaded guilty had occurred, and that, although he was in the eleventh grade at the

time he was arrested, he was only twelve or thirteen years of age at the time he was alleged

to have raped or sexually assaulted his then eight-year-old niece. He also testified that he had

pleaded guilty, not necessarily because he felt responsibility for the crime, but because his

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mother asked him to and because he noticed the incident was taking a toll on his mother.

Additionally, Appellee testified that he had since repaired his relationship with his sister, the

mother of his niece. Appellee also emphasizes that the only two incidents occurring during

those twenty-three years that could be interpreted as posing a threat to the safety of others

both stemmed from domestic disputes with his former wives. The first incident was in 1998

and resulted in a finding of guilt for resisting arrest. Appellee testified that the police sprayed

him with pepper spray as he was aggressively trying to enter his house after his then wife had

locked him out while he was clothed only in his underwear. The second incident occurred

in 2008 and resulted in a charge of third-degree domestic battery. Appellee explained on

cross-examination that he did not dispute the charges because he was trying to reconcile with

his then wife and to save his marriage. Additionally, Appellee points out that the circuit court

sealed the record in his criminal case in 2003. In short, Appellee maintains that the circuit

court made a judgment call that he was not likely to pose a threat to the safety of others and

that the record demonstrates that this finding was not clearly erroneous.

In reply, the State asserts that, even assuming for the sake of argument that Appellee

was credible, his testimony, which was the only evidence he offered in support of his motion,

simply does not support a finding that he no longer posed a threat to the safety of others. In

short, the State replies that Appellee’s own testimony is too little evidence to support the

circuit court’s finding. The State replies alternatively that, even if there is some evidence to

support the circuit court’s finding, the clearly erroneous standard of review calls for reversal

if this court is left with a definite and firm conviction that the circuit court made a mistake.

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The statute contains mandatory language and is clear that the circuit court “shall grant

an order terminating the obligation to register [as a sex offender] upon proof by a

preponderance of the evidence” of the statutory requirements. Ark. Code Ann. § 12-12-

919(b)(2). Here, the State challenges the circuit court’s finding only as to the requirement

that Appellee “is not likely to pose a threat to the safety of others.” See Ark. Code Ann. § 12-

12-919(b)(2)(B). Appellee testified on direct examination that, since pleading guilty twenty-

three years earlier, he had completed high school and college. Also on direct examination,

he explained the 1998 conviction for resisting arrest and the 2008 incident regarding third-

degree domestic battery as being the result of his attempts to cover himself and to reconcile

with his wife rather than contest the charges. The State conducted a very lengthy and

extensive cross-examination about both the 1998 and 2008 incidents and about the issue of

Appellee being a threat to the safety of others. Thus, despite the State’s assertion to the

contrary in this appeal, the record does reflect that the circuit court made a credibility

determination in reaching its conclusion to grant Appellee’s motion and to terminate his

obligation to register as a sex offender.

While his own testimony was indeed the only evidence that Appellee presented in

support of his motion, the State cites us to no authority for the proposition that an applicant’s

testimony alone is insufficient to support the circuit court’s conclusions pursuant to section

12-12-919. It is not apparent to us that the State’s argument is well-taken, given that the

statute does not establish any requirements for the source of the evidence needed to

demonstrate the statutory requirements by the preponderance burden. The statute requires

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only that the circuit conduct a hearing at which “the applicant and any interested persons may

present witnesses and other evidence.” Ark. Code Ann. § 12-12-919(b)(1)(B)(i). In addition,

although the State emphasizes that Appellee refused to accept responsibility for his actions

during his testimony as well as within his recent applications for a pardon, we noted in Miller

that there is no requirement in section 12-12-919 that an applicant admit guilt.

Our review of the record reveals that, as was the case in Miller, this is a case in which

we must defer to the circuit court’s superior position to judge witness credibility and refrain

from substituting our judgment for that of the circuit court’s. There was testimony from

Appellee explaining that the two subsequent crimes at issue occurred not necessarily because

Appellee posed a threat to the safety of others, but because he was trying to cover himself in

clothing and to save his marriage. This is therefore not a failure of proof, as the State

contends, but a credibility determination by the circuit court. The credibility of the witness

in this instance was for the trial court to weigh and assess. See State v. McFadden, 327 Ark. 16,

938 S.W.2d 797 (1997). This court gives high deference to the circuit court because that

court is in a far superior position to observe the parties before it and to judge the credibility

of the witnesses. Payne v. Ark. Dep’t of Human Servs., 2013 Ark. 284. Of significance to this

court in this case is that the circuit court observed Appellee’s conduct and demeanor as he

endured the State’s extensive cross-examination. Ordinarily, this court does not reverse a trial

court when its decision turns largely on disputed facts and witness credibility, as we accede

to that court’s superior position to observe the witnesses and gauge their demeanor. Dopp v.

Sugarloaf Min. Co., 288 Ark. 18, 702 S.W.2d 393 (1986). Based on the record before us, and

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the circuit court’s credibility determination, we cannot say that the circuit court clearly erred

in concluding that Appellee had proved by a preponderance of the evidence that he was not

likely to pose a threat to the safety of others. Accordingly, we must therefore affirm the

circuit court’s decision terminating his obligation to register as a sex offender.

Affirmed.

Dustin McDaniel, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellant.

Frye Law Firm, P.A, by: William C. Frye, for appellee.

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