dissenting. As a primary source of authority, the majority repeatedly cites Ark. Code Ann. § 5-2-605(1) (Repl. 1997). Yet, as also noted by the majority, section 5-2-605(1) is a justification statute. As such, the legislature did not intend that the statute be used to lessen or mitigate the State’s burden to prove the elements of false imprisonment. Because that is precisely what the majority has done in this opinion, I must respectfully dissent.
The central question in this case is one of statutory interpretation. We construe criminal statutes strictly, resolving any doubts in favor of the defendant. Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003); Short v. State, 349 Ark. 492, 79 S.W.3d 313 (2002). We construe a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language, and if the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. Harness v. State, supra.
The plain language of the false-imprisonment statute requires that the State prove the elements of “without consent” and “without lawful authority.” Ark. Code Ann. § 5-11-103 (Repl. 1997). No person may be convicted of an offense unless the State proves each element of the offense beyond a reasonable doubt. Ark. Code Ann. § 5-1-111 (a)(1) (Repl. 1997). In the context of a child under the age of fourteen years old, the element of “without consent” requires that the State prove that the restraint was without the consent of a parent, guardian or other person responsible for the general supervision of the welfare of the child. Ark. Code Ann. § 5-11-101(2) (Repl. 1997). In its opinion, the majority has imposed a reasonableness inquiry unfounded by the language of the statute, thereby obliterating the requirement that the State prove the “without consent” element. In support of its interpretive gymnastics, the majority looks to Ark. Code Ann. § 5-2-605(1):
The use upon another person of physical force that would otherwise constitute an offense is justifiable under any of the following circumstances:
(1) A parent, teacher, guardian, or other person entrusted with care and supervision of a minor or an incompetent person may use reasonable and appropriate physical force upon the minor or incompetent person when and to the extent reasonably necessary to maintain discipline or to promote the welfare of the minor or incompetent person.
Ark. Code Ann. § 5-2-605(1) (Repl. 1997). This statute, however, is a justification statute, and is intended to be used by the parents or guardians to justify their actions after the State has met its burden of proof. Justification statutes are not meant to “water down” the elements of a crime to allow the State to circumvent its burden of proving each element of the offense beyond a reasonable doubt.
Moreover, in other statutes concerning the treatment of children by their parents, the legislature has explicitly imposed a reasonableness inquiry in the language of the statute. Arkansas Code Annotated § 12-12-503(2)(C)(I) (Supp. 2005) states, “ ‘Abuse’ shall not include physical discipline of a child when it is reasonable and moderate and is inflicted by a parent or guardian for purposes of restraining or correcting the child.” Ark. Code Ann. § 12-12-503(2)(C)(I) (Supp. 2005) (emphasis added). Similarly, section 12-12-503(2) (B)(ii) states, “No unreasonable action shall be construed to permit a finding of abuse without having established the elements of abuse.” Ark. Code Ann. § 12-12-503(2)(B)(ii) (Supp. 2005) (emphasis added). “Neglect” can be found if the parent or guardian “[fails] to take reasonable action to protect the juvenile from abandonment, abuse, sexual abuse, sexual exploitation, neglect, or parental unfitness where the existence of this condition was known or should have been known.” Ark. Code Ann. § 9 — 27—303(36)(A)(iii) (Supp. 2005) (emphasis added). Thus, it can be argued with considerable force that in drafting the false-imprisonment statute, Ark. Code Ann. § 5-11-103, the legislature deliberately chose not to impose a reasonableness inquiry. See Hales v. State, 299 Ark. 93, 771 S.W.2d 285 (1989).
In other words, if the legislature had intended to include an inquiry into the reasonableness of the parent’s consent for purposes of false imprisonment, it could have expressly provided for that inquiry in the language of the statute. No such language is included. We have repeatedly held there is no better settled rule in criminal jurisprudence than the rule that criminal statutes must be strictly construed and pursued. Heikkila v. State, 352 Ark. 87, 98 S.W.3d 805 (2003); Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). The courts cannot, and should not, by construction or intendment, create offenses under statutes which are not in express terms created by the legislature. Heikkila v. State, supra; Smith v. State, supra; Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002). We are without authority to declare an act to come within the criminal laws of this state by implication. Heikkila v. State, supra; Smith v. State, supra; Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984). It would violate the accepted canons of interpretation to declare an act to come within the criminal laws of the State merely by implication. Heikkila v. State, supra; Smith v. State, supra. Nothing is taken as intended which is not clearly expressed. Heikkila v. State, supra; Smith v. State, supra. Despite these established tenets of statutory construction, the majority in this case has created a new offense by its implication of a reasonableness inquiry instead of construing the plain and unambiguous phrase “without consent and without lawful authority” just as it reads. We must not forget that “ [i] t is not the business of the courts to legislate, and if a change in the law in this respect is desired, the General Assembly is the branch of government whence change must come.” Southern Telephone Co. v. King, 103 Ark. 160, 146 S.W. 489 (1912).
Finally, the majority fails to mention that Ms. Dick was also convicted of manslaughter for the death of Molly and sentenced to seven years in prison. That conviction has not been appealed and therefore will not be disturbed.
For the above-stated reasons, I respectfully dissent.
Corbin, J., joins this dissent.