{ "id": 1447512, "name": "Kimberly Ann DOUGAN v. STATE of Arkansas", "name_abbreviation": "Dougan v. State", "decision_date": "1995-11-13", "docket_number": "CR 95-491", "first_page": "384", "last_page": "393", "citations": [ { "type": "official", "cite": "322 Ark. 384" }, { "type": "parallel", "cite": "912 S.W.2d 400" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "81 A.L.R.3d 1071", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1995, "opinion_index": 0 }, { "cite": "585 A.2d 468", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1991, "opinion_index": 0 }, { "cite": "567 A.2d 1070", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 474488 ], "weight": 5, "year": 1989, "pin_cites": [ { "page": "1073" } ], "opinion_index": 0, "case_paths": [ "/pa-super/389/0606-01" ] }, { "cite": "582 N.E.2d 1014", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "479 N.E.2d 901", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "904" } ], "opinion_index": 0 }, { "cite": "215 Ark. 851", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1464603 ], "weight": 5, "year": 1949, "pin_cites": [ { "page": "853" }, { "page": "854" } ], "opinion_index": 0, "case_paths": [ "/ark/215/0851-01" ] }, { "cite": "44 Ark. 265", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893434 ], "year": 1884, "opinion_index": 0, "case_paths": [ "/ark/44/0265-01" ] }, { "cite": "291 Ark. 105", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872693 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0105-01" ] }, { "cite": "317 Ark. 626", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443832 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/317/0626-01" ] }, { "cite": "314 Ark. 231", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912794 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/314/0231-01" ] }, { "cite": "113 S.Ct. 1647", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 6524398 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/br/151/1647-01" ] }, { "cite": "311 Ark. 17", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1896980 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/311/0017-01" ] }, { "cite": "309 Ark. 422", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906039 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "424-425" } ], "opinion_index": 0, "case_paths": [ "/ark/309/0422-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-60-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 6, "year": 1993, "pin_cites": [ { "page": "(a)(2)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 989, "char_count": 18472, "ocr_confidence": 0.887, "pagerank": { "raw": 2.3292894682556124e-07, "percentile": 0.7908880015784704 }, "sha256": "1bb4a2c273c8dbbd571c55e5df2edafda08a0e0b9164bd3fe57ad60fc5ad9c6c", "simhash": "1:0f6712b3e8ba1259", "word_count": 3060 }, "last_updated": "2023-07-14T22:17:32.217899+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Kimberly Ann DOUGAN v. STATE of Arkansas" ], "opinions": [ { "text": "Bradley D. Jesson, Chief Justice.\nThe appellant, Kimberly Ann Dougan, was convicted of abuse of a corpse, Ark. Code Ann. \u00a7 5-60-101 (Repl. 1993), sentenced to six years\u2019 imprisonment, and ordered to pay a $10,000.00 fine. She raises two arguments on appeal: (1) the trial court erred in denying her motion to dismiss on the basis that the statute is unconstitutionally vague; and (2) the trial court erred in denying her motion for directed verdict because there was insufficient evidence that she had \u201cphysically mistreated\u201d a corpse. We affirm.\nFacts\nOn the morning February 16, 1994, the body of a baby boy was discovered in a dumpster on Highway 306 near Colt, Arkansas. Appellant Kimberly Ann Dougan and her husband Ronald Dougan owned a gray van matching the description of a vehicle that had been seen in the area early that morning. Chief Investigator Glen Ramsey of the St. Francis County Sheriff\u2019s Office went to the Dougan residence on February 18, and spoke with Ronald, who indicated that his wife had taken the van to go to the doctor on the morning of February 16, and had returned at approximately 6:30 or 7:00 a.m. According to Ronald, there was blood inside the van and on appellant\u2019s clothing, which his wife explained was the result of a cyst on her ovary that had ruptured.\nThe appellant subsequently agreed to answer questions at the St. Francis County Sheriff\u2019s Department. After being verbally advised of her Miranda rights and signing a waiver-of-rights form, she gave a statement to the officers. The statement related that, during the early morning hours of February 16, appellant began bleeding and awakened her sixteen-year-old-daughter, Ashley Kirksey. The two left their home in the family\u2019s gray Plymouth Voyager van and drove to the parking lot of Baptist Memorial Hospital in Forrest City. Appellant \u201cgot scared,\u201d and, against her daughter\u2019s wishes, refused to go into the emergency room of the hospital. At approximately 4:10 a.m., while in the van, appellant delivered a baby boy, which was born with the umbilical cord wrapped around his neck. Ashley could not get the baby to move. Appellant cut the cord with a pair of scissors and tied it off with some old yellow crochet yarn. Rather than take the baby to the emergency room door, appellant, who was afraid she would be seen or that \u201csomeone would grab me and I wouldn\u2019t know what do to,\u201d instructed her daughter to start driving. According to appellant, Ashley drove to a dumpster west of Colt, and appellant placed the baby and some bloody sheets in the dumpster. Appellant maintained that she did not know that she was pregnant until she gave birth to the baby in the parking lot. She explained that she did not ask her husband to go with her to the hospital because they did not get along. According to appellant, her husband was \u201cmore interested in CB\u2019s\u201d and constantly accused her of being unfaithful.\nFollowing appellant\u2019s statement, she was charged with first-degree murder. After a complete autopsy revealed that the child had been stillborn, appellant was charged with abuse of a corpse, codified at Ark. Code Ann. \u00a7 5-60-101 (Repl. 1993). The trial court denied appellant\u2019s pretrial motion to dismiss the charges against her on the basis that the abuse of corpse statute was void for vagueness.\nAt trial, the State offered the testimony of James Meredith, the county coroner, who observed the \u201cfull term\u201d baby at the scene. While he saw no evidence of trauma, it was Dr. Meredith\u2019s opinion that the baby died of exposure and neglect, and that had the baby received any medical attention whatsoever, it would have lived.\nAshley Kirksey testified that, at 2:00 a.m. on February 16, her mother woke her up and got into bed with her. At 4:00 a.m., her mother awakened her a second time and told her that she had to go with her. Her mother got three sheets out of the linen closet and a pair of scissors from the kitchen, and told Ronnie that she and Ashley were going to the hospital. When they got into the van, her mother told her that she was in labor. When Ashley told her that they had to go to the hospital, her mother refused, stating that she was not going to keep the baby because she and Ronnie were having problems, and because she \u201ccouldn\u2019t handle another kid.\u201d When they arrived at the parking lot of the hospital, her mother stated that she would give the baby to the nurses after it was born. Ashley got in the back of the van with her mother \u201cand then the baby came out and I caught it.\u201d The umbilical cord was wrapped around the baby\u2019s neck. When Ashley pushed on its arm, the baby .would not move or cry. Ashley asked if she could take it inside the hospital, but her mother would not allow her to do so. Ashley tied and cut off the umbilical cord. After waiting for approximately 40 to 45 minutes for the afterbirth, they drove toward Colt. At her mother\u2019s direction, Ashley opened the sliding door to a dumpster and put the baby, sheets, and afterbirth inside.\nAt the close of the State\u2019s case-in-chief, Dougan renewed her motion to dismiss on the basis that \u00a7 5-60-101 was void for vagueness. She also moved for directed verdict on the basis that there was insufficient evidence that she had \u201cphysically mistreated\u201d the corpse under the statute. The trial court denied both motions. Dougan presented no evidence on her behalf. The jury returned a verdict finding Dougan guilty as charged. After hearing evidence during the sentencing phase, the jury recommended that Dougan be sentenced to six years\u2019 imprisonment and assessed a $10,000 fine. The trial court entered judgment against Dougan accordingly, and she appeals.\nI. Constitutionality of Ark. Code Ann. \u00a7 5-60-101\nDougan maintains that the trial court erred in denying her motion to dismiss on the grounds that the abuse of corpse statute, Ark. Code Ann. \u00a7 5-60-101 (Repl. 1993), is unconstitutionally vague. The statute provides in pertinent part as follows:\n(a) A person commits abuse of a corpse if, except as authorized by law, he knowingly:\n(1) Disinters, removes, dissects, or mutilates a corpse; or\n(2) Physically mistreats a corpse in a manner offensive to a person of reasonable sensibilities.\nDougan was charged under subsection (a)(2) of this statute. At a pretrial hearing, Dougan moved to dismiss the charge \u201cbased on the absence of judicial decisions within the statute itself.\u201d Particularly, Dougan argued that the statute provides no definitions for the terms \u201cphysically mistreats,\u201d \u201cin a manner offensive,\u201d and \u201creasonable sensibilities,\u201d and thus, the statute \u201cfails to reasonably prescribe the conduct that is prohibited.\u201d At the conclusion of the hearing, the trial court summarily denied Dougan\u2019s motion to dismiss.\nWe set forth the procedures for determining whether a statute is unconstitutionally vague in State v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992):\nOur review of challenges to the constitutionality of statutes begins with the principle that statutes are presumed to be constitutional. The burden of proving a statute is unconstitutional is upon the party challenging it. If it is possible to construe a statute as constitutional, we must do so.\nThe norm by which we determine when a statute is void-for-vagueness is whether it lacks ascertainable standards of guilt such that persons of average intelligence must necessarily guess at its meaning and differ as to its application. The law must give fair warning in definite language of the prohibited act. In addition to fair warning, a statute is also void-for-vagueness if it is so broad that it becomes susceptible to discriminatory enforcement. Nevertheless, flexibility, rather than meticulous specificity or great exactitude, in a statute is permissible as long as its reach is clearly delineated in words of common understanding. Moreover, impossible standards of specificity are not constitutionally required, even in criminal statutes. A statute will meet constitutional muster if the language conveys sufficient warning when measured by common understanding and practice. Additionally, it is not necessary that all kinds of conduct falling within the reach of the statute be particularized and the statute will not be struck down as vague only because marginal cases could be put where doubts might arise.\n309 Ark. at 424-425. (Citations omitted and emphasis added.) See also Manati v. State, 311 Ark. 17, 842 S.W.2d 845, cert. denied 113 S.Ct. 1647 (1992); heavy v. State, 314 Ark. 231, 862 S.W.2d 832 (1993); Thornton v. State, 317 Ark. 626, 883 S.W.2d 453 (1994).\nWe have not had occasion to interpret Ark. Code Ann. \u00a7 5-60-101. However, we have recognized that the common law in force at the time the statute was passed is to be taken into account in construing undefined words of the statute. Meadows v. State, 291 Ark. 105, 722 S.W.2d 584 (1987); citing State v. Pierson, 44 Ark. 265 (1884). In ascertaining the common law, we look not only to our own cases, but to early English cases, early writers on the common law, and cases from other states. Meadows v. State, supra; citing Ark. Stat. Ann. \u00a7 1-101 (Repl. 1976); Baker v. State, 215 Ark. 851, 223 S.W.2d 809 (1949). In Baker, the appellant kept the body of an elderly man for approximately five days after his death for the purpose of receiving and cashing his welfare check, and was prosecuted for \u201ctreating a dead body indecently\u201d under the common law. During these five days, \u201c[decomposition of and other ghastly conditions of the body had occurred.\u201d Id. at 853. In rejecting Baker\u2019s argument that she had committed no offense, we relied in part on the following authorities:\nIn 17 C.J. 1148, in discussing offenses against dead bodies, this appears: \u201cAt common law it was an offense to treat the dead human body indecently, and various specific offenses were recognized. Ordinarily it is a misdemeanor for one upon whom the duty is imposed of having a dead body buried to refuse or neglect to perform such duty.\nWharton\u2019s Criminal Law, 12th Ed., Vol. II, \u00a7 1704, says: \u201cIndecency in treatment of a dead human body is an offense at common law, as an insult to public decency. Hence it is indictable to expose such a body without proper burial;...\u201d\nId. at 854. (Emphasis added.) Although Baker was relieved from the common law burden of providing burial for the decedent, we held that the jury was justified in finding her guilty of the common law offense of \u201ctreating a dead body indecently.\u201d\nModel Penal Code \u00a7 250.10 defines the offense of \u201cabuse of corpse\u201d as follows: \u201cExcept as authorized by law, a person who treats a corpse in a way that he knows would outrage ordinary family sensibilities commits a misdemeanor.\u201d In Comment 2, the drafters of the Model Penal Code state as follows:\n[This offense] covers one \u201cwho treats a corpse in a way that he knows would outrage ordinary family sensibilities.\u201d This phrasing includes sexual indecency but is not so limited. It also reaches physical abuse, mutilation, gross neglect, or any other sort of outrageous treatment of a corpse. The overreaching purpose is to protect against outrage to the feelings of friends and family of the deceased . . .\nThe distinguishing features of the Model Code offense are the generality and comprehensiveness with which the proscribed conduct is defined. Section 250.10 covers any conduct that would \u201coutrage ordinary family sensibilities.\u201d This formulation is sufficiently broad to preclude gaps in coverage and yet sufficiently precise in its statement of the ultimate question to provide a meaningful standard of decision. Any possible problems of indeterminacy and lack of notice to the actor are resolved by the requirement of knowledge with respect to the outrageous character of his conduct. Thus, the person who is not aware that his acts would offend family sensibilities does not commit an offense under this section, even though precisely that reaction obtains. Of course, the actor\u2019s idiosyncratic view of what is outrageous does not matter. The standard is objective; it does not vary either to exculpate on the basis of the actor\u2019s unusual callousness or to condemn for outraging an excessively delicate relative of the deceased.\nModel Penal Code \u00a7 250.10, Comment 2 (1980). The drafters depict the Arkansas, statute as \u201ca generic approach to defining the proscribed conduct but limit[ing] the offense to physical mistreatment that would be offensive or outrageous to ordinary sensibilities.\u201d Id.\nAt least two states have upheld similar statutes against void-for-vagueness challenges. Ohio Revised Code Annotated (Anderson) \u00a7 2927.01(B) provides that \u201cno person, except as authorized by law, shall treat a human corpse in a way that would outrage reasonable community sensibilities.\u201d A violation of this provision constitutes \u201cgross abuse of a corpse\u201d and is a felony offense. In State v. Glover, 479 N.E.2d 901 (Ohio App. 1984), the Ohio Court of Appeals reversed a trial court\u2019s pretrial dismissal of an indictment against Glover for gross abuse of a corpse on the basis that the statute was unconstitutionally vague. In Glover, the Ohio Court of Appeals determined that \u201c[t]he words, \u2018treat,\u2019 \u2018human corpse,\u2019 \u2018way,\u2019 \u2018outrages,\u2019 and \u2018sensibilities,\u2019 are commonly understood by persons of common intelligence.\u201d 479 N.E.2d at 904, citing Webster\u2019s New International Dictionary (2 Ed. 1954) 2699, 597, 2890, 1734, and 2279. In recognizing that, in the area of obscenity, courts have consistently approved legislation that required a factfinder to apply contemporary community standards, the Glover court concluded that the Ohio statute was not unconstitutionally vague. Id.; see also State v. Gardner, 582 N.E.2d 1014 (Ohio App. 6 Dist. 1989).\nPennsylvania\u2019s abuse of corpse statute, like Ohio\u2019s statute, closely follows the Model Penal Code approach. See 18 Penn. Stat. Ann. \u00a7 5510. In Commonwealth v. Smith, 567 A.2d 1070 (Pa. Super. 1989), alloc. den. 585 A.2d 468 (Pa. 1991), the Pennsylvania Superior Court considered the issue of \u201cwhether a person who knowingly leaves a corpse to rot, without making proper arrangements for a proper burial has \u2018treat[ed] a corpse in a way that [s]he knows would outrage ordinary family sensibilities.\u2019 \u201d 567 A.2d at 1073. Smith, a habitual user of cocaine, had a history of neglecting her three-year-old daughter, who died of malnutrition. The decomposed and mummified body of the girl was found in a kneeling position at the foot of her bed with her head laying over her folded hands on the bed. The door of the room had been locked from the outside by means of a rope that was tied to the outside of the door and attached to another doorknob. Smith said she concealed her daughter\u2019s corpse because she was \u201cafraid and confused.\u201d Id. The Pennsylvania Court of Appeals, noting that \u201cthe purpose of drafting the statute in a very broad and general language was to insure that offenses such as concealing a corpse came within the purview of the statute,\u201d affirmed Smith\u2019s conviction for abuse of corpse. Id. In so holding, the Smith court reasoned that by concealing the corpse, Smith allowed it to be eaten by rodents and become mummified, and that her conduct constituted an outrage to ordinary family sensibilities. Id. See also John S. Herbrand, Annotation, Validity, Construction, and Application of Statutes Making it a Criminal Offense to Mistreat or Wrongfully Dispose of Dead Body, 81 A.L.R.3d 1071 (Supp. 1995).\nIn sum, we cannot conclude that our statute is unconstitutionally vague, as it conveys fair and sufficient warning when measured by common understanding. Particularly, the words \u201cphysically\u201d and \u201cmistreats\u201d are commonly understood. The word \u201cphysical\u201d is defined as \u201cof or relating to the body,\u201d and the term \u201cmistreat\u201d as \u201cto treat badly: abuse.\u201d See Webster\u2019s Ninth New Collegiate Dictionary 760, 887 (1988). As recognized by the drafters of the Model Penal Code offense, any possible problems of indeterminacy and lack of notice to Dougan and others similarly charged are resolved by the requirement of knowledge with respect to the outrageous character of her conduct. Moreover, our position is supported by decisions upholding the Model Penal Code offense, which is written more broadly than \u00a7 5-60-101. For these reasons, we reject Dougan\u2019s argument that the statute is unconstitutionally vague.\nII. Sufficiency of the evidence\nFor her second assignment of error, Dougan asserts that the State\u2019s evidence was insufficient to establish that she \u201cphysically mistreat[ed]\u201d the corpse of her stillborn child within the purview of Ark. Code Ann. \u00a7 5-60-101(a)(2) (Repl. 1993). At the close of the State\u2019s case in chief, Dougan moved for a directed verdict on the basis that the State failed to produce evidence of any physical harm to the child. She further argued that she was not charged with improper disposal of a body or improper burial. The State responded that the placing of a corpse in the dumpster constituted physical mistreatment of that corpse. The trial court denied the motion.\nPrior to the enactment of the Arkansas Criminal Code in 1975, the Commentary to Ark. Stat. Ann. \u00a7 49-2921 (Repl. 1977), provided as follows:\nThis section is designed to cover not only sexual assaults on dead human bodies but also lesser forms of mishandling, ab\u00fase, or even neglect. Its former statutory counterpart was found in old Ark. Stat. Ann \u00a7 41-3701 (removal of body from grave), 41-3702 (purchasing body), 41-3703 (Repl. 1964) (opening grave). The primary purpose of the section is to protect the feelings of family of the deceased person.\n(Emphasis added.) In light of this Commentary, we believe that the legislature intended that \u00a7 5-60-101 cover Dougan\u2019s placement of her baby\u2019s corpse in a dumpster, as such an act constitutes a form of mishandling, abuse, or neglect. In light of the evidence presented, we cannot agree that there was insufficient proof from which the jury could have concluded that Dougan\u2019s conduct amounted to physical mistreatment of a corpse in a manner offensive to a person of reasonable sensibilities.\nAffirmed.", "type": "majority", "author": "Bradley D. Jesson, Chief Justice." } ], "attorneys": [ "Ford & Wadley, by: Paul N. Ford, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Kent G. Holt, Asst. Att\u2019y Gen., and Robin Carroll, Law Student Admitted to Practice Pursuant to Rule XV(E)(l)(b) of the Rules Governing Admission to the Bar, for appellee." ], "corrections": "", "head_matter": "Kimberly Ann DOUGAN v. STATE of Arkansas\nCR 95-491\n912 S.W.2d 400\nSupreme Court of Arkansas\nOpinion delivered November 13, 1995\n[Petition for rehearing denied December 18, 1995.]\nFord & Wadley, by: Paul N. Ford, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Kent G. Holt, Asst. Att\u2019y Gen., and Robin Carroll, Law Student Admitted to Practice Pursuant to Rule XV(E)(l)(b) of the Rules Governing Admission to the Bar, for appellee." }, "file_name": "0384-01", "first_page_order": 410, "last_page_order": 419 }