*1 As is clear from both Troxel and our own it ais precedent, constitutional violation of a fit fundamental parent’s parenting decisions to award over visitation that fit objection parent. — — case, The fact that one fit the father does not parent amind third visitation with his child does not confer party having of the other visitation on that third without consent party rights entitled to have On the facts of this Tim is Raegan parent. not, schedule, whether he is his entire visitation present during half-sisters with her it his decision that visits and if Raegan time, interfere with that has no Bonnie right during his decision she has a to interfere with decision more than right any or a School teacher. to leave the child with Sunday babysitter i.e., However, a third someone to award visitation party, rights set out than another fit violates other parent, principles reason, I believe the trial court’s order Troxel and Linder. For this be should reversed.

Hannah, J., joins. v. Debbie HAGAN-SHERWIN

STATE of Arkansas 158 S.W.3d156 CR 03-249 Court of Arkansas Supreme 8, 2004 delivered Opinion April denied 20, 2004.*] [Rehearing May * GLAZE J.J., grant rehearing. would Brown, *3 Beebe, Gen., David R. Senior Ass’t

Mike Att’y Att’y by: Raupp, Gen., for appellant. Firm, Knutson, A. for

Knutson Law by: Gregg appellee. Betty C. Dickey, Chief The State an order appeals Justice. Court, of the Pulaski Circuit County acquitting appellee Ann. Debbie on two counts Code Hagan-Sherwin violating the a 2001), 23-64-223 and mistrial on declaring remaining (Repl. § four counts. The State claims that the trial court committed prejudi- the and cial error with the choice-of-evils defense by instructing defense Ms. a Hagan- non-statutory entrapment by estoppel. the contends that this case is not Sherwin properly appealable the Procedure— under Rule 3 of Arkansas Rules of Appellate and Criminal. We dismiss State’s agree appeal. 13, 2002, On December Debbie Hagan-Sherwin appellee 23- Ann. six counts of Ark. Code. violating

was with charged § Each count 2001). alleged Hagan-Sherwin 64-223 (Repl. either diverted or to her own use insurance appropriated premium monies in violation of the statute. In the appellee’s June denied, motion to her dismiss was and charges the case against went to trial in October 2002. early trial,

At testified that in she bought appellee she and insurance After Campbell Company agency. purchase, discovered that the over was worth a million dollars less company than the had books reflected. wife audit Campbell’s performed books, and Campbell that over a million Company’s confirming dollars was Harold missing. former owner of Campbell, bank, owned Campbell of the Company, percent bank refused to renew one million dollar line of credit. appellee’s The failed to obtain a loan or other appellee infusion in capital order to continue for her insureds. coverage

At a with the Arkansas Insurance meeting (“the Department stated that she lacked sufficient to Department”), appellee cash pay that, bills. and the to upcoming avoid Department appellee agreed insureds, in for her she sell lapse must her coverage agency. Bob of the told to do Roddey whatever Department appellee she had to do the doors at her insurance keep open agency. told both Hagan-Sherwin and Lanita Roddey also Blasingame, that she was Department, monies from diverting premiums Shadducks, order to pay a former operating expenses. Gregory for investigator testified that were aware that Department, they was appellee monies for using premium operating expenses. at Shadducks said no time did ever tell the they appellee stop, that it was or that she could not use wrong, monies to premium the business in keep testified that at no did operation. time Roddy *4 he tell her that from using money premiums pay operating was or that she legal should do that. expenses The decided to and sell her to two appellee try agency out-of-state Travelers companies, and Hartford. Unfortunately, to the according Tester from the appellee, called Department Joie the Travelers’ financial division and told them was Hagan-Sherwin difficulties, financial which having killed the The deal. summarily was into company and later out went of business. put receivership testified, concurred, The the and appellee that had the Department sale not a one gone through, of the single insured would appellee’s have lost one second of coverage. The for a moved directed the verdict at the appellee close of case, State’s at the close of the again defendant’s and a third time, at the of close all evidence. three All motions for directed circuit court the the State’s objections, denied. Over verdict were of choice-of-evils defense on the affirmative the instructed jury 702, a non-model jury the court and gave 2d from AMCI of by estoppel. defense entrapment the affirmative on six, but the two jury on counts the appellee The jury acquitted four counts. On on the remaining reach a verdict not could consistent with 2003, entered an order 15, trial court the January verdicts, and the State appealed. those circuit the 1) on two appeal: The State brings points defense of the the with statutory instructing jury court erred by choice-of-evils; erred instructing the circuit court by and 2) affirmative defense by entrapment with a non-statutory the law. the instruction misstated that or alternatively estoppel, has of this case is whether State properly The threshold issue 3. The rule Ark. R. P. —Crim. this under App. brought part: provides pertinent (a) to either subsection is filed pursuant

When a notice rule, the court in which the prosecution this the clerk of (b) of cause a immediately transcript be took shall place sought appealed and transmitted to the attorney the trial record to be made him to be attorney, by or delivered to prosecuting general, on attorney If attorney general. general, delivered to the record, has been committed the trial is satisfied error inspecting state, and that the correct and uniform to the prejudice review the of the criminal law requires by Supreme administration Court, of the trial he take may appeal by filing transcript within sixty (60) days with the clerk of the Court Supreme record of the notice of appeal. after filing contends that this 3(c) (2003). Ark. R. P. —Crim. appellee App. it not raise an issue the State because does case is not appealable of the criminal to the correct and uniform administration “important laid v. we out 3(c). law” as under Rule State Ashley, required as follows: for an appeal by jurisdictional requirement cases, in limited circum- we the State appeals by In criminal accept McCormack, (2000). S.W.3d 735 343 Ark. stances. State is not limited to has held our review of a State appeal This court State v. Gray, cases that would establish precedent. Moreover, there (1997). 955 S.W.2d 502 significant *5 inherent difference between criminal defendants brought by appeals 602 and on behalf of of those the State. former is a matter brought latter, Constitution, is

right, whereas the not derived from nor is it a matter but is right, of to Rule 3. v. granted pursuant State Guthrie, McCormack; State v. We supra; accept supra. appeals by State when holding our would be to the correct and important uniform of the 3(c). administration criminal law. Rule aAs matter of court has this taken which are narrow in practice, only appeals Banks, and v. involve of law. State 322 Ark. scope interpretation 344, (1995). 909 S.W.2d 634 Where an appeal does not an present issue of of the criminal with rules rami- interpretation widespread fications, this court has held that such an does not involve appeal Harris, correct and uniform administration of the law. State v. 315 595, Ark. (1994). 868 S.W.2d 488 are allowed Appeals not the fact merely demonstrate that the trial 594, court v. erred. State Stephenson,330 Ark. 955 S.W.2d 518 449, 185 and (1997); Statev. 123 Spear Boyce, (1916). Ark. S.W. 788 Thus, where the resolution of the issue appeal on turns on the facts case, the to the is not one unique appeal of requiring interpretation ramification, our criminal with rules widespread the matter Guthrie, Howard, not the State. by State v. State appealable v. supra; 640, 364, 341 Ark. 19 S.W.3d 4 (2000); State 330 Ark. Gray, 516, Edwards, Statev. (1997); Ark. 838 S.W.2d 356 (1992) the State (“Here, the trial questions court’s application our rule to the facts at hand and not its interpretation, so the appeal must be dismissed.”). This court not will even accept mixed and fact questions of law on the State. Statev. appeal Gray, supra; Edwards, Hart, 582, 952 State v. Statev. supra; 329 Ark. S.W.2d 138 (1997) (“Because the issue presented involves a mixed fact, question law of our interpretation rules with Likewise, ramifications is widespread here.”). not at issue simply where an raisesthe issue of not application, interpretation, a it does not statutory involve correct and provision, uniform administration of criminal law and is not appealableby State. 451, Mazur, Statev. Jones, 321 903 S.W.2d 170 (1995); Statev. 312 Ark. 847 S.W.2d 715 (1993).

State v. 66 S.W.3d 563 Ashley, (2002). As to the State’s assertion of error instructing choice-of-evils, with the defense of jury we first statutory consider the circumstances under which the State may appeal giving instruction. the case sub particular judice, contends that the affirmative defense of statutory choice-of-evils

603 involve that does not in a case been not have given should In State v. or destruction property. imminent injury physical we considered McCormack, 34 S.W.3d 735 (2000), Ark. or not whether the State may challenge giving, the issue of the State In McCormack instruction. of a jury particular giving, a certain instruction. refusal to jury the trial court’s give appealed the State that a we dismissed and proper appeal There explained would not an issue of would include statutory interpretation of a statutory of a trial court’s a review application include words, a trial court’s said we will review Id. In other we provision. statute, if it has a a instruction refusal to jury misinterpreted give refusal to a a trial court’s give jury but we will not review of the statute to the instruction based on alleged misapplication Hulum, Id; case. see also State a facts surrounding particular McCormack, 111 (2002) supra.). 78 S.W.3d (citing case, we must to the these present principles Applying of Ark. the trial court determine whether language interpreted include cases Ann. 5-2-604 to involving non-physical Code. § instruction, or the choice-of-evils harm as the basis for giving the statute the trial court was merely concerning whether applying Before case. to the facts surrounding appellee’s choice-of-evils occurred, regarding the close of evidence following colloquy be instruction should given: whether the choice-of-evils Does the State have objection? any The Court: Simpson: Yes,YourHonor, the State would to object Mr. matter, the choice of evils jury proffering that the choice of evils and it’s understanding my a car steal instruction is when trying you you’re divert— a ride to the has been shot and needs because someone like that. It’s a Or injury. something physical hospital to a business a like that as there’s fire or something opposed or not. its doors keeping open moment, Simpson: Honor, I if I could have Your just Mr. at the I’ve seen it and I’ve looked commentary stating know and under what the choice of evilsis allowed the case when circumstances, instruction con- and I believe there’s a strict evils. the choice of cerning Looney: (sic). Ms. 52604. Simpson: Honor, that,

Mr. Your I also believe in the context of that’s a factor for stealing, as mitigation sentencing opposed evils, to a choice of like to feed stealing your family. Looney: Ms. I comment or do want me to wait for May you Mr. I do have some assistance Simpson? to the Court that instruction. regard giving *7 Simpson: Honor, Your I believe subsection C of that also Mr. states that is defense unavailable in for prosecution any offense for which recklessness or as the case negligence, may be, suffices case, to establish culpability. Clearly, mental state is culpable or purposely, knowingly, recklessly. Looney: Honor, Ms. Your in to the instruction regard on the Instructions, Criminal, Arkansas Model that Jury particular added, is that paragraph the defense is not paragraph being, available if find that Debbie you Hagan-Sherwin was reckless in for her appraising conduct. That necessity is true. The available, defense is not but the can be given because that is particular used when the paragraph only offense with which the Defendant is includes reck- charged lessness therefore, as—or to convict. And negligence can be instructed on the choice of evils and it would be toup them to determine whether or not it was available to Ms. based on whether or not Hagan found her to be reckless they or not. the case of Parson v. Additionally, State 21 Ark. At 107-730 250, 1987, that, stems from the in order proposition available, for this defense to be there must be proof attendant extraordinary circumstances requiring emergency measures to avoid an eminent (sic) or public private injury. That is consistent case, with the evidence in this even from the testimony in Department to specifically regard there circumstance, being and then extraordinary witnesses, of the Defense that testimony would emer require measures in order to avoid an gency eminent or (sic)public that the loss private injury, for being thousands of coverage insureds the State of Arkansas. Simpson: Honor, Your the supplementary commentary Mr. evils, under Coons v. State the choice (sic) the defense of choice of evils was based a section of the model upon penal code.The Court went onto hold that the was to be language construed and that narrowly it was—and under that applied that, case, determined because the evidence it was bore no to the commen- original similarity examples provided code, or the to the model tary commentary penal requested instruction was refused as to the facts properly inappropriate of the case.

In this the Defense is that it was more alleging important to than it was to keep Hagan agency open protect insureds who were purchasing policies. Looney: No, I I think

Ms. Mr. actually, Simpson think — misunderstands It was more my point. important protect insureds, i.e., the business and if need by-keeping open, be, with the Insurance pursuant understanding Depart- ment, the violation we’re about is an violation talking alleged monies, evil, i.e., and that choice of use using premium monies or let lose their premium everybody coverage, choice of evils existed. And the choice that was accordingly, made was made in an effort to avoid —what the word I’m for —a eminent looking (sic)public private injury. *8 Simpson: Honor, case, Your in this Ms. stated Mr. Looney just that the monies were used to the premium keep Hagan so that would —so that the insureds agency open policies Well, would remain covered. monies premium used, result, were and as a their were cancelled. So the policies that she’s that dollars be di- justification alleging premium verted so that insureds’ remain effect is not —that’s policies not true because the fact that the monies were premium intended, transferred for other than were what they purposes those were cancelled or on subject policies questionability and the that was the Delta Plastics other one subsequently reinstated, Berwin Square. Boyles: Honor, add, State, Your if I on versus Coons Mr. may I think it’s clear that the is choice of evils (sic) quite type intended to be similar to the ones listed in the something And the one see in the original commentary. thing you fists destruction of or other original commentary buildings structures to fire from of levies to keep spreading, breaking in the of a prevent flooding city causing, process, flooding anoth- of individuals’ property, temporary appropriation er’s vehicle to remove to a personal seriously injured person These are all with actual an hospital. things dealing physical loss, harm to as to a financial persons property opposed in a court of law at a later which is perfectly compensable think, reasons, in the I for those even in at date. looking things most favorable to Ms. this instruc- Looney’s argument, light tion still should not be given. I’m it over of the State. objections going give Court: I’ll make a I’ll it at that time. on this next one. number ruling

After it is clear that the trial court did not reviewing colloquy, in a of Ark. Code Ann. 5-2-604. engage statutory interpretation § Instead, the trial court the statute to the evidence simply applied at trial. presented

Because State’s raises issue of argument merely not of a application, interpretation, statutory provision, does not involve correct and uniform administration appeal Hulum, of the criminal law. State v.

(2002). Such is not a basis for an argument proper by State, so this on must be dismissed. point

For its next on the State that the trial point appeal, argues court erred in with a affirmative instructing non-statutory Arkansas, defense of an affirmative entrapment by estoppel. defense defined as matter: so (1) a section of any designated by code; this so (2) statute that is not a designated by this part code. Arít. Code Ann. 5-1-111 (d) 1997). (Repl. §

The State attacks the trial court’s instruction on entrapment First, in two State contends that because estoppel ways. is not an affirmative defense entrapment by estoppel designated by statute, the criminal code or other the trial court was not autho- rized to such an instruction on this defense. The give does appellee not is not available under dispute entrapment by estoppel However, Arkansas law. she does assert that because the affirma- tive defense is derived from the due entrapment by estoppel Constitution, the United States process protections guaranteed by *9 the State cannot its use. prohibit brief,

In its the State failed to address the appellee’s argument due entrapment by estoppel guaranteed by pro Rather, cess. it that Ms. case the is not argues Hagan-Sherwin’s words, of case where due is concerned. In other the type process State contends that Ms. circumstances Hagan-Sherwin’s particular do not warrant the instruction in this entrapment-by-estoppel case. Thus the State is not for an particular asking interpretation law, the but rather a on the of the law to the facts ruling application

607 of this case. Because the State’s raises particular argument merely the issue of and not the aof application, interpretation, statutory does not involve correct and uniform provision, appeal Hulum, 400, administration of the criminal law. State v. 349 78 S.W.3d 111 Such an is not a (2002). basis for argument proper State, an so this on must also be appeal by point dismissed.

In its second attack on entrapment-by-estoppel defense, the State contends that the trial court’s instruction on misstated the law. The State contends that entrapment by estoppel Arkansas, even if this defense is available in the instruction should However, have been worded failed differently. proffer of its instruction. This court has held typewritten copy proposed on numerous occasions that the failure to or abstract a proffer us from the issue on proposed precludes considering State, 66, Plotts v. 297 Ark. 759 S.W.2d 793 Dixon appeal. (1988); State, 105, State, v. 327 Ark. 642 S.W.2d (1997); Shockley 282 Ark. (1984). sum,

In the State’s issues of merely presents factual We do not such the State. application. accept appeals by Ark. R. P.—Crim. State v. 3(c) (2003). App. Ashley, addition, 66 S.W.3d 563 we note that (2002). we no express on the of the instructions the trial court opinion propriety given by in this case. dismissed.

Appeal Glaze dissent. Brown, JJ.,

Robert L. Justice, major- Brown, dissenting. Today, ii it which refusesto rule on the ity publishes opinion of two instructions crafted and time for first legitimacy given instruction, the Pulaski Circuit Court. One choice- County instruction, of-evils is based on a statute in our criminal code. The instruction, second is a which was unique entrapment-by-estoppel as an affirmative defense. Neither instruction is of our given part ArkansasModel Criminal Instructions. it is it is because the majority says deciding way

instructions were in connection with one factual situation given and, thus, this case does not involve uniform administration of as under Rule 3. I For one under justice required disagree. thing, *10 608 a new never could legitimacy

this State reasoning, But, not more by custommade instruction. importantly, instructions, this of the two the issue of validity addressing in another trial. their use for another court does not day preclude caselaw receive a certain that find their into our Instructions way imprimatur approval. McCormack, relies on State v. 343 34 majority this but that as for (2000),

S.W.3d authority dismissing McCormack,we declined to take the case case is not In apposite. a whether there was a rational because it involved determination of a offense. basis for an instruction on lesser-included We giving is, decided that was an issue that a factual that analysis, required whether the facts a rational But we did basis. provided specifically not address the issue of whether the circuit court misinterpreted instruction, statute in because issue was raised giving for the first time in the brief. State’s reply Misinterpretation error in the choice-of-evils instruction are the issues giving precise before court in the instant case. this Hulum,

The same hold true of also adduced It (2002), too by majority. That case concerned whether the circuit court erred in inapposite. a rational basis for instruction. To finding giving manslaughter obvious, state the the case before us does not involve the applica- tion of lesser-included-offense instruction to the facts existing case, but, rather, of a whether a new can be fashioned and then from statute to a case the circuit court when applied by the case does not involve or destruction of physical injury prop- erty.

I would the State’s and consider whether the accept two instructions do wander far afield from what is appropriate Otherwise, whether error was committed. this court would appear to be carteblanche for use these instructions giving approval short, future factual I would meet the issues raised settings. these instructions head on.

I dissent. respectfully

Glaze, in this dissent. J., joins