Cite as 2017 Ark. App. 564
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-17-191
MATTHEW DEWAYNE SCANTLING Opinion Delivered: October 25, 2017
APPELLANT
APPEAL FROM THE BENTON
V. COUNTY CIRCUIT COURT
[NO. 04CR-00-992]
STATE OF ARKANSAS
APPELLEE HONORABLE ROBIN F. GREEN,
JUDGE
AFFIRMED
WAYMOND M. BROWN, Judge
Appellant appeals from the circuit court’s denial of his application to terminate his
obligation to register as a sex offender. His sole argument on appeal is that the circuit court
committed clear error because it failed to evaluate the statutory requirements to terminate
registration and instead continued registration to punish appellant because it believed his
original sentence was too light. We affirm.
Appellant was charged by criminal information, filed on November 9, 2000, with
violation of a minor in the first degree, a Class C felony. It was alleged that “[o]n or about
July 1998 & March 2000, in Benton County, Arkansas, the defendant engaged in sexual
intercourse and deviate sexual activity with A.R., who was less than eighteen (18) years of
age, and the defendant was a teacher in A.R.’s school.”
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On March 13, 2001, a plea agreement and order was entered showing that appellant
had pled guilty as charged and sentencing him, under Act 346 of 1975, 1 to four years’
probation and 120 days’ incarceration in the county jail 2 as well as court costs and fees. He
was also ordered to register as a sex offender. Appellant was released from jail on July 2,
2001.
Appellant filed a petition for early termination and to seal his record on December
23, 2002. 3 On April 4, 2003, the circuit court entered an order granting early termination
of appellant’s probation and sealing the record of the offense. On March 8, 2004, appellant
petitioned the court to terminate his “requirement for reporting.” Following a hearing, the
circuit court entered an order taking the petition under advisement and ordering him to
submit a brief. Appellant submitted a brief in support of his petition to terminate his sex-
offender-registration requirement and a petition to seal and expunge his record on June 23,
2004. The petition was denied on August 23, 2004.
Appellant then filed a petition to terminate his sex-offender-registration requirement
on April 31, 2016. Appellee responded on July 29, 2016, objecting to appellant’s petition
and noting that it was requesting that appellant be reassessed by the Sex Offender
1
See Turley v. State, 2013 Ark. App. 427, at 1–2, 429 S.W.3d 293, 294 (“Act 346 of
1975 (codified at Ark. Code Ann. §§ 16-93-301 to -303), . . . authorizes a trial court to
defer proceedings, place a first-time offender on probation, and then dismiss the case and
expunge the record at the termination of the defendant’s probation.”).
2
Appellant’s incarceration was subject to work release on Monday through Friday,
after he had completed thirty days of incarceration.
3
Though the document’s title included “petition for early termination,” appellant did
not specify that he was seeking early termination of his probation.
2
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Community Notification Assessment Program, which had assessed appellant “almost fifteen
years” prior to the petition and had listed him as a risk level of two. 4
A hearing on the matter was held on November 16, 2016. Appellant was the only
witness. He testified, in pertinent part, that he was given a voice test and the report
therefrom found no deception. He contacted the Logan County sheriff who provided a
letter of reference supporting his application. 5 He stated that the “Booneville Police
department had no objection if they needed to provide letters also.”
Appellant did not believe he posed any threat. He testified to the following regarding
the effect of his actions:
The events of 16-17 years ago were devastating to me and my wife of 28 years. The
ordeal that we had to go through was hard on me, but was even harder watching her
go through it because she was innocent. She didn’t do anything wrong. I put her
through this; I put my children through this. I know people hear about jailhouse
conversations or fake good or things like that. In my case that’s just not absolutely
the truth. My wife led me to a church that she was involved with and that became
our life. Everything I do now is based on my faith in Christ.
He went on to state that “back then,” he was a “heavy drinker” and that he “made a terrible,
terrible choice and a lot of people suffered for it.” With regard to the victim he stated that
he “can’t imagine the pain [he] caused [her] and her family at the time” and that “[w]hen
he looked back on those events at the time, [he was] disgusted by what [he] did.” He
4
This assessment included a voice-stress-analysis report, otherwise known as a
polygraph.
5
The letter was not admitted after appellee’s sustained objection to the letter on
hearsay grounds, given that the sheriff was not available for cross-examination.
3
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acknowledged that he did not blame his victim as it was “something [he] did.” He went on
to state:
At this time, I ask that the Court would take this registration requirement away. I
don’t think people that haven’t been there can understand what the stigma is and
how hard this is and what people call you and call your kids and the things that
happen because of this. I’ve been doing it for 15 years, and it is hard. I acknowledge
the reason for the registration based on what I had done, but I’m asking to be released
from that as the statute permits.
On cross-examination, appellant testified that he saw a psychiatrist in Fort Smith for
over two years and remained a member of a “men’s group for accountability for the majority
of the last ten years”; he started that group in 2003 or 2004. He stated that the group had a
mentoring component in which you “become a mentor yourself” and “[try] to help other
men in these types of situations.” He noted that he and his wife had counseled other couples
on their issues of a “sexual nature”; primarily pornography.
In its ruling from the bench, the circuit court stated:
Instead of doing 120 days in the county jail, you could have spent over a decade in
the Department of Corrections. You got a tremendous break. You are testifying here
today about how hard this was on you and your family. You created this. You were
a teacher. You had sex with a student.
....
I find that you do still pose a threat to the community.
....
You’re testifying before the Court how hard this was on you, when you caught a
tremendous break.
It then denied appellant’s petition. Appellant then asked the circuit court to “illuminate
what the Court found to reach the decision that the defendant poses a continued risk to the
community.” The circuit court responded:
4
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I’m not satisfied there has been any type of rehabilitation of him. The psychiatric
counseling that he received, he testified it was for a myriad of issues, including
alcoholism. I’m not certain that there has been any type of rehabilitative effort. The
charges, which you pled guilty to, or the one count you pled guilty to, were very
serious. He could have easily been charged with at least four counts of rape.
Somehow, he got this charge and Act 346. I think the law has been corrective in
that regard now, but I find that he poses a continuing threat.
Its order finding that appellant “poses a continuing threat to the community and that there
has not been a satisfactory effort made by the Petitioner to rehabilitate given the serious
nature of his offense” was entered November 28, 2016. This timely appeal followed.
We review the circuit court’s findings on a section 12-12-919(b)(2)(B) petition under
a clearly-erroneous standard of review. 6 A finding is clearly erroneous, when, although there
is evidence to support it, we are left with the definite and firm conviction that a mistake
was made. 7
Appellant argues that the circuit court committed clear error because it failed to
evaluate the statutory requirements to terminate registration and instead continued
registration to punish appellant because it believed his original sentence was too light. 8
Appellee argues that appellant presented no evidence. We disagree. Appellant testified and
submitted polygraph results; that was evidence. The issue before this court is not whether
6
Stow v. State, 2016 Ark. App. 84, at 3, 482 S.W.3d 752, 753 (citing State v. Khabeer,
2014 Ark. 107) (citing Ark. Code Ann. § 12-12-919(b) (Repl. 2016)).
7
Id. at 3, 482 S.W.3d at 754.
8
Despite appellant’s subargument that the circuit court made no findings of fact, we
specifically note that the circuit court made findings in direct response to appellant’s request
for more information regarding why it found that appellant posed a threat to society.
Accordingly, we do not address this subargument.
5
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there was evidence—there was—but because appellant’s testimony and the polygraph were
the only evidence before the circuit court, the issue before this court is credibility. 9 The
circuit court is not required to believe the testimony of any witness, certainly not the self-
serving testimony of the accused. 10 Arkansas’s appellate courts have never wavered from the
longstanding rule that it is the province of the circuit court to determine the credibility of
witnesses. 11
Arkansas Code Annotated section 12-12-919 permits a sex offender to apply for an
order terminating his or her obligation to register fifteen years after either being released
from incarceration or other institution, or having been placed on probation or any other
form of community supervision by the court. 12 After a hearing, 13 the court shall grant an
order terminating the obligation to register upon proof by a preponderance of the evidence
9
See State v. Miller, 2013 Ark. 329, at 3 (“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.”); see State v. Khabeer, 2014 Ark. 107, at 7 (“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.”).
10
Collins v. State, 2014 Ark. App. 574, at 4, 446 S.W.3d 199, 203 (citing Bell v. State,
2010 Ark. App. 813, 379 S.W.3d 748).
11
Id. (citing Welch v. State, 364 Ark. 324, 219 S.W.3d 156 (2005)).
12
Ark. Code Ann. § 12-12-919(b)(1)(A)(i).
13
Ark. Code Ann. § 12-12-919(b)(1)(B)(i).
6
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that the applicant has not been adjudicated guilty of a sex offense during that fifteen-year
period and that the applicant is not likely to pose a threat to the safety of others. 14
Appellant’s September 29, 2016 polygraph report included the “official version” of
the offense. 15 It stated that appellant admitted that he “had sexual contact with the victim
on five different occasions that consisted of sexual intercourse, oral sex, and fondling of the
victim’s vagina with a vibrator,” on school grounds and at his home, between July 1998 and
March 2000. It stated that another minor student alleged that appellant “flirted with her”
and that appellant had been warned by “numerous faculty members including the principal
who reported [appellant] about his close interaction with [the victim] and [appellant]
continued his relationship[.]” The “official version” makes clear just how serious appellant’s
actions were.
The report found no deception to appellant’s answers in the negative that he had not
had sexual contact with any student other than the victim while working at the school. We
note that one of the questions to which he answered no, and no deception was found,
specifically asked, “Since you have been an adult, have you had sexual contact with any
person under age 16?” The “official version” of the sex offense states that the victim was
14
Ark. Code Ann. § 12-12-919(b)(2)(A) & (B).
15
This court notes that Arkansas Code Annotated section 12-12-704 states that “[t]he
results of any such examination as provided in this subchapter shall be inadmissible in all
courts in this state.” (Repl. 2016). The only exception to this rule occurs when both parties
stipulate to the admissibility of the polygraph results in writing. Ramaker v. State, 345 Ark.
225, 234, 46 S.W.3d 519, 525 (2001) (citing Foster v. State, 285 Ark. 363, 687 S.W.2d 829
(1985)). There is no written stipulation to the admission of the polygraph in the record;
however, appellee requested that appellant submit to a polygraph in its July 29, 2016
response in opposition to appellant’s petition to terminate registration.
7
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fourteen years old at the time of the first interaction in July 1998; the affidavit for warrant
arrest states the same. Appellant admitted this July 1998 interaction. The United States
Supreme Court has held that polygraph results only serve to bolster or attack a witness’s
veracity[.]” 16 Accordingly, the polygraph weighs on appellant’s credibility only and not the
truth of the matter.
At the hearing, appellant’s testimony was essentially that he did not believe he posed
a threat, that it had been “hard” on him and his family because of the stigma that comes
with being labeled a sex offender, and that he and his wife were counseling couples
struggling with issues of a sexual nature. He provided no testimony—other than that
“[e]verything [he does] now is based on [his] faith in Christ”—regarding any change in his
character that would keep him from posing a threat to the community. Though he testified
to a sheriff and a police department being in support of his petition, neither the sheriff nor
a police officer appeared in court to support his assertion. Though he asserted that he
attended therapy for over two years, he provided no evidence from the psychiatrist, and the
psychiatrist did not appear to testify, on what appellant was counseled for or whether he or
she thought the services were successful. Appellant provided no other witness, such as his
16
Rollins v. State, 362 Ark. 279, 285, 208 S.W.3d 215, 217 (citing United States v.
Scheffer, 523 U.S. 303 (1998)).
8
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pastor, 17 a family member, or a long-time friend or acquaintance. 18 Furthermore, the
polygraph found no deception to a question that appellant answered in the negative, but the
record shows that the question clearly should have been answered in the affirmative.
The circuit court stated that it was “not certain that there had been any type of
rehabilitative effort” by appellant. The circuit court obviously did not believe appellant—
and the polygraph did not change its opinion—and this court does not disturb credibility
findings. 19 We affirm.
Affirmed.
VIRDEN and KLAPPENBACH, JJ., agree.
Matthews, Campbell, Rhoads, McClure & Thompson, P.A., by: Edwin N. McClure and
Sarah L. Waddoups, for appellant.
Leslie Rutledge, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., for appellee.
17
See Stow v. State, 2016 Ark. App. 84, at 3, 482 S.W.3d 752, 754 (Where Stow’s
pastor testified that he “had been “up-front and candid” about his history, that Stow was
careful to not be around children at the church, and that Rogers had no concerns about his
own children being around Stow,” but the denial of the petition was affirmed because there
was “contrary, detailed evidence in the risk-assessment report.”).
18
See Miller, 2013 Ark. 329 (Miller presented six witnesses who testified that in the
time they had known him, they had not seen Miller act violently or behave in an
inappropriate manner toward other people and discussed the strides that Miller had made
toward sobriety and the steps he had taken to change his life.).
19
See Khabeer, 2014 Ark. 107, at 2 (“[D]eterminations of credibility are within the
province of the fact-finder.”).
9
Scantling v. State
Court: Court of Appeals of Arkansas
Date filed: 2017-10-25
Citations: 2017 Ark. App. 564
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