{ "id": 5367144, "name": "STATE of Arkansas v. Debbie HAGAN-SHERWIN", "name_abbreviation": "State v. Hagan-Sherwin", "decision_date": "2004-04-08", "docket_number": "CR 03-249", "first_page": "597", "last_page": "608", "citations": [ { "type": "official", "cite": "356 Ark. 597" }, { "type": "parallel", "cite": "158 S.W.3d 156" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "282 Ark. 281", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1740702 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/282/0281-01" ] }, { "cite": "327 Ark. 105", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922675 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/327/0105-01" ] }, { "cite": "297 Ark. 66", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1891423 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/297/0066-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-2-604", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "730 S.W.2d 250", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6138684 ], "pin_cites": [ { "page": "1987" } ], "opinion_index": 0, "case_paths": [ "/ark-app/21/0107-01" ] }, { "cite": "349 Ark. 400", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513751 ], "weight": 6, "year": 2002, "pin_cites": [ { "parenthetical": "citing McCormack, supra." }, { "parenthetical": "citing McCormack, supra." } ], "opinion_index": 0, "case_paths": [ "/ark/349/0400-01" ] }, { "cite": "347 Ark. 523", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683191 ], "weight": 4, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/347/0523-01" ] }, { "cite": "312 Ark. 121", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935027 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/312/0121-01" ] }, { "cite": "321 Ark. 451", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449603 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/321/0451-01" ] }, { "cite": "329 Ark. 582", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 236209 ], "weight": 2, "year": 1997, "pin_cites": [ { "parenthetical": "\"Because the issue presented in this appeal involves a mixed question of law and fact, an interpretation of our rules with widespread ramifications is simply not at issue here.\"" }, { "parenthetical": "\"Because the issue presented in this appeal involves a mixed question of law and fact, an interpretation of our rules with widespread ramifications is simply not at issue here.\"" } ], "opinion_index": 0, "case_paths": [ "/ark/329/0582-01" ] }, { "cite": "310 Ark. 516", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898944 ], "weight": 3, "year": 1992, "pin_cites": [ { "parenthetical": "\"Here, the State questions the trial court's application of our rule to the facts at hand and not its interpretation, so the appeal must be dismissed.\"" }, { "parenthetical": "\"Here, the State questions the trial court's application of our rule to the facts at hand and not its interpretation, so the appeal must be dismissed.\"" } ], "opinion_index": 0, "case_paths": [ "/ark/310/0516-01" ] }, { "cite": "341 Ark. 640", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257807 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/341/0640-01" ] }, { "cite": "185 S.W. 788", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1916, "opinion_index": 0 }, { "cite": "123 Ark. 449", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1556250 ], "year": 1916, "opinion_index": 0, "case_paths": [ "/ark/123/0449-01" ] }, { "cite": "330 Ark. 594", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298612 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0594-01" ] }, { "cite": "868 S.W.2d 488", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1910564, 1910471 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/315/0595-01", "/ark/315/0540-01" ] }, { "cite": "315 Ark. 595", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1910564 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/315/0595-01" ] }, { "cite": "322 Ark. 344", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447490 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/322/0344-01" ] }, { "cite": "330 Ark. 364", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298651 ], "weight": 5, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0364-01" ] }, { "cite": "343 Ark. 285", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226567 ], "weight": 6, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/343/0285-01" ] }, { "cite": "Ark. Code Ann. \u00a7 23-64-223", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2001, "opinion_index": 0 }, { "cite": "349 Ark. 400", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513751 ], "weight": 2, "year": 2002, "opinion_index": 1, "case_paths": [ "/ark/349/0400-01" ] }, { "cite": "343 Ark. 285", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226567 ], "weight": 2, "year": 2000, "opinion_index": 1, "case_paths": [ "/ark/343/0285-01" ] } ], "analysis": { "cardinality": 945, "char_count": 22720, "ocr_confidence": 0.739, "pagerank": { "raw": 9.456368850393511e-08, "percentile": 0.5173386556513526 }, "sha256": "19d5ce460faaad4e46672e8924abaf45e6ad9d5a8012e2a458991382a935ad5b", "simhash": "1:e1664b1e588918d7", "word_count": 3801 }, "last_updated": "2023-07-14T17:43:53.781338+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glaze and Brown, JJ., dissent.", "Glaze, J., joins in this dissent." ], "parties": [ "STATE of Arkansas v. Debbie HAGAN-SHERWIN" ], "opinions": [ { "text": "Betty C. Dickey, Chief Justice.\nThe State appeals an order of the Pulaski County Circuit Court, acquitting appellee Debbie Hagan-Sherwin on two counts of violating Ark. Code Ann. \u00a7 23-64-223 (Repl. 2001), and declaring a mistrial on the remaining four counts. The State claims that the trial court committed prejudicial error by instructing the jury with the choice-of-evils defense and a non-statutory defense of entrapment by estoppel. Ms. Hagan-Sherwin contends that this case is not properly appealable by the State under Rule 3 of the Arkansas Rules of Appellate Procedure\u2014 Criminal. We agree and dismiss the State\u2019s appeal.\nOn December 13, 2002, appellee Debbie Hagan-Sherwin was charged with six counts of violating Ark. Code. Ann. \u00a7 23-64-223 (Repl. 2001). Each count alleged that Hagan-Sherwin either diverted or appropriated to her own use insurance premium monies in violation of the statute. In June 2002, the appellee\u2019s motion to dismiss the charges against her was denied, and the case went to trial in early October 2002.\nAt trial, the appellee testified that in 1997 she bought Campbell and Company insurance agency. After the purchase, she discovered that the company was worth over a million dollars less than the books had reflected. Campbell\u2019s wife performed an audit of Campbell and Company\u2019s books, confirming that over a million dollars was missing. Harold Campbell, the former owner of Campbell and Company, owned 20 percent of the bank, and the bank refused to renew appellee\u2019s one million dollar line of credit. The appellee failed to obtain a loan or other capital infusion in order to continue coverage for her insureds.\nAt a meeting with the Arkansas Insurance Department (\u201cthe Department\u201d), appellee stated that she lacked sufficient cash to pay upcoming bills. The Department and the appellee agreed that, to avoid a lapse in coverage for her insureds, she must sell her agency. Bob Roddey of the Department told the appellee to do whatever she had to do to keep the doors open at her insurance agency. Hagan-Sherwin told both Roddey and Lanita Blasingame, also of the Department, that she was diverting monies from premiums in order to pay operating expenses. Gregory Shadducks, a former investigator for the Department, testified that they were aware that the appellee was using premium monies for operating expenses. Shadducks said at no time did they ever tell the appellee to stop, or that it was wrong, or that she could not use premium monies to keep the business in operation. Roddy testified that at no time did he tell her that using money from premiums to pay operating expenses was legal or that she should do that.\nThe appellee decided to try and sell her agency to two out-of-state companies, Travelers and Hartford. Unfortunately, according to the appellee, Joie Tester from the Department called the Travelers\u2019 financial division and told them Hagan-Sherwin was having financial difficulties, which summarily killed the deal. The company was put into receivership and later went out of business. The appellee testified, and the Department concurred, that had the sale gone through, not a single one of the appellee\u2019s insured would have lost one second of coverage.\nThe appellee moved for a directed verdict at the close of the State\u2019s case, again at the close of the defendant\u2019s case, and a third time, at the close of all evidence. All three motions for directed verdict were denied. Over the State\u2019s objections, the circuit court instructed the jury on the affirmative defense of choice-of-evils from AMCI 2d 702, and the court gave a non-model jury instruction on the affirmative defense of entrapment by estoppel. The jury acquitted the appellee on counts two and six, but the jury could not reach a verdict on the remaining four counts. On January 15, 2003, the trial court entered an order consistent with those verdicts, and the State appealed.\nThe State brings two points on appeal: 1) the circuit court erred by instructing the jury with the statutory defense of choice-of-evils; and 2) the circuit court erred by instructing the jury with a non-statutory affirmative defense of entrapment by estoppel, or alternatively that the instruction misstated the law. The threshold issue of this case is whether the State has properly brought this appeal under Ark. R. App. P. \u2014 Crim. 3. The rule provides in pertinent part:\nWhen a notice of appeal is filed pursuant to either subsection (a) or (b) of this rule, the clerk of the court in which the prosecution sought to be appealed took place shall immediately cause a transcript of the trial record to be made and transmitted to the attorney general, or delivered to the prosecuting attorney, to be by him delivered to the attorney general. If the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the state, and that the correct and uniform administration of the criminal law requires review by the Supreme Court, he may take the appeal by filing the transcript of the trial record with the clerk of the Supreme Court within sixty (60) days after the filing of the notice of appeal.\nArk. R. App. P. \u2014 Crim. 3(c) (2003). The appellee contends that this case is not appealable by the State because it does not raise an issue \u201cimportant to the correct and uniform administration of the criminal law\u201d as required under Rule 3(c). In State v. Ashley, we laid out the jurisdictional requirement for an appeal by the State as follows:\nIn criminal cases, we accept appeals by the State in limited circumstances. State v. McCormack, 343 Ark. 285, 34 S.W.3d 735 (2000). This court has held our review of a State appeal is not limited to cases that would establish precedent. State v. Gray, 330 Ark. 364, 955 S.W.2d 502 (1997). Moreover, there is a significant and inherent difference between appeals brought by criminal defendants and those brought on behalf of the State. The former is a matter of right, whereas the latter, is not derived from the Constitution, nor is it a matter of right, but is granted pursuant to Rule 3. State v. Guthrie, supra; State v. McCormack; supra. We accept appeals by the State when our holding would be important to the correct and uniform administration of the criminal law. Rule 3(c). As a matter of practice, this court has only taken appeals which are narrow in scope and involve the interpretation of law. State v. Banks, 322 Ark. 344, 909 S.W.2d 634 (1995). Where an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994).\nAppeals are not allowed merely to demonstrate the fact that the trial court erred. State v. Stephenson, 330 Ark. 594, 955 S.W.2d 518 (1997); State v. Spear and Boyce, 123 Ark. 449, 185 S.W. 788 (1916). Thus, where the resolution of the issue on appeal turns on the facts unique to the case, the appeal is not one requiring interpretation of our criminal rules with widespread ramification, and the matter is not appealable by the State. State v. Guthrie, supra; State v. Howard, 341 Ark. 640, 19 S.W.3d 4 (2000); State v. Gray, 330 Ark. 364, 955 S.W.2d 502 (1997); State v. Edwards, 310 Ark. 516, 838 S.W.2d 356 (1992) (\u201cHere, the State questions the trial court\u2019s application of our rule to the facts at hand and not its interpretation, so the appeal must be dismissed.\u201d). This court will not even accept mixed questions of law and fact on appeal by the State. State v. Gray, supra; State v. Edwards, supra; State v. Hart, 329 Ark. 582, 952 S.W.2d 138 (1997) (\u201cBecause the issue presented in this appeal involves a mixed question of law and fact, an interpretation of our rules with widespread ramifications is simply not at issue here.\u201d). Likewise, where an appeal raises the issue of application, not interpretation, of a statutory provision, it does not involve the correct and uniform administration of the criminal law and is not appealable by the State. State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995); State v. Mazur, 312 Ark. 121, 847 S.W.2d 715 (1993).\nState v. Ashley, 347 Ark. 523, 66 S.W.3d 563 (2002).\nAs to the State\u2019s assertion of error in instructing the jury with the statutory defense of choice-of-evils, we first consider the circumstances under which the State may appeal the giving of a particular jury instruction. In the case sub judice, the State contends that the statutory affirmative defense of choice-of-evils should not have been given in a case that does not involve imminent physical injury or destruction of property. In State v. McCormack, 343 Ark. 285, 34 S.W.3d 735 (2000), we considered the issue of whether the State may challenge the giving, or not giving, of a particular jury instruction. In McCormack the State appealed the trial court\u2019s refusal to give a certain jury instruction. There we dismissed and explained that a proper appeal by the State would include an issue of statutory interpretation and would not include a review of a trial court\u2019s application of a statutory provision. Id. In other words, we said we will review a trial court\u2019s refusal to give a jury instruction if it has misinterpreted a statute, but we will not review a trial court\u2019s refusal to give a jury instruction based on an alleged misapplication of the statute to the facts surrounding a particular case. Id; see also State v. Hulum, 349 Ark. 400, 78 S.W.3d 111 (2002) (citing McCormack, supra.).\nApplying these principles to the present case, we must determine whether the trial court interpreted the language of Ark. Code. Ann. \u00a7 5-2-604 to include cases involving non-physical harm as the basis for giving the choice-of-evils instruction, or whether the trial court was merely applying the statute concerning choice-of-evils to the facts surrounding the appellee\u2019s case. Before the close of evidence the following colloquy occurred, regarding whether the choice-of-evils instruction should be given:\nThe Court: Does the State have any objection?\nMr. Simpson: Yes,Your Honor, the State would object to the proffering the choice of evils jury instruction in this matter, and it\u2019s my understanding that the choice of evils jury instruction is when you\u2019re trying to divert \u2014 you steal a car because someone has been shot and needs a ride to the hospital or something like that. It\u2019s a physical injury. Or there\u2019s a fire or something like that as opposed to a business keeping its doors open or not.\nMr. Simpson: Your Honor, if I could have just a moment, I know I\u2019ve seen it and I\u2019ve looked at the commentary stating the case when the choice of evils is allowed and under what circumstances, and I believe there\u2019s a strict instruction concerning the choice of evils.\nMs. Looney: 52604. (sic).\nMr. Simpson: Your Honor, I also believe that, in the context of stealing, that\u2019s a mitigation factor for sentencing as opposed to a choice of evils, like stealing to feed your family.\nMs. Looney: May I comment or do you want me to wait for Mr. Simpson? I do have some assistance to the Court in regard to giving that instruction.\nMr. Simpson: Your Honor, I believe subsection C of that also states that defense is unavailable in prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability. Clearly, in this case, the culpable mental state is purposely, knowingly, or recklessly.\nMs. Looney: Your Honor, in regard to the instruction on the Arkansas Model Jury Instructions, Criminal, that particular paragraph is added, that paragraph being, the defense is not available if you find that Debbie Hagan-Sherwin was reckless in appraising the necessity for her conduct. That is true. The defense is not available, but the instruction can be given because that particular paragraph is only used when the offense with which the Defendant is charged includes recklessness as \u2014 or negligence to convict. And therefore, the jury can be instructed on the choice of evils and it would be up to them to determine whether or not it was available to Ms. Hagan based on whether or not they found her to be reckless or not.\nAdditionally, the case of Parson v. State 21 Ark. At 107-730 S.W.2d 250, 1987, stems from the proposition that, in order for this defense to be available, there must be proof of extraordinary attendant circumstances requiring emergency measures to avoid an eminent (sic) public or private injury. That is consistent with the evidence in this case, even testimony from the Department specifically in regard to there being an extraordinary circumstance, and then the testimony of the Defense witnesses, that would require emergency measures in order to avoid an eminent (sic) public or private injury, that being the loss of coverage for thousands of insureds in the State of Arkansas.\nMr. Simpson: Your Honor, the supplementary commentary under Coons v. State (sic) the choice of evils, the defense of choice of evils was based upon a section of the model penal code.The Court went onto hold that the language was to be narrowly construed and applied that it was \u2014 and under that case, it was determined that, because the evidence bore no similarity to the examples provided by the original commentary or the commentary to the model penal code, requested instruction was properly refused as inappropriate to the facts of the case.\nIn this case, the Defense is alleging that it was more important to keep the Hagan agency open than it was to protect the insureds who were purchasing policies.\nMs. Looney: No, I think \u2014 actually, I think Mr. Simpson misunderstands my point. It was more important to protect the insureds, i.e., by-keeping the business open, and if need be, pursuant to understanding with the Insurance Department, the violation we\u2019re talking about is an alleged violation of using premium monies, and that choice of evil, i.e., use premium monies or let everybody lose their coverage, that choice of evils existed. And accordingly, the choice that was made was made in an effort to avoid \u2014 what is the word I\u2019m looking for \u2014 a eminent (sic) public or private injury.\nMr. Simpson: Your Honor, in this case, Ms. Looney just stated that the premium monies were used to keep the Hagan agency open so that policies would \u2014 so that the insureds would remain covered. Well, in this case, premium monies were used, and as a result, their policies were cancelled. So the justification that she\u2019s alleging that premium dollars be diverted so that insureds\u2019 policies remain in effect is not \u2014 that\u2019s not true because the fact that the premium monies were transferred for purposes other than what they were intended, those policies were cancelled or subject to questionability on the Delta Plastics and the other one that was subsequently reinstated, Berwin Square.\nMr. Boyles: Your Honor, if I may add, on Coons versus State, (sic) I think it\u2019s quite clear that the type of choice of evils is intended to be something similar to the ones listed in the original commentary. And the one thing you see in the original commentary fists destruction of buildings or other structures to keep fire from spreading, breaking of levies to prevent the flooding of a city causing, in the process, flooding of individuals\u2019 property, temporary appropriation of another\u2019s personal vehicle to remove seriously injured person to a hospital. These are all things dealing with an actual physical harm to persons and property as opposed to a financial loss, which is perfectly compensable in a court of law at a later date. I think, for those reasons, even in looking at things in the light most favorable to Ms. Looney\u2019s argument, this instruction still should not be given.\nThe Court: I\u2019m going to give it over objections of the State. I\u2019ll make a ruling on this next one. I\u2019ll number it at that time.\nAfter reviewing the colloquy, it is clear that the trial court did not engage in a statutory interpretation of Ark. Code Ann. \u00a7 5-2-604. Instead, the trial court simply applied the statute to the evidence presented at trial.\nBecause the State\u2019s argument merely raises the issue of application, and not the interpretation, of a statutory provision, the appeal does not involve the correct and uniform administration of the criminal law. State v. Hulum, 349 Ark. 400, 78 S.W.3d 111 (2002). Such an argument is not a proper basis for an appeal by the State, so this point on appeal must be dismissed.\nFor its next point on appeal, the State argues that the trial court erred in instructing the jury with a non-statutory affirmative defense of entrapment by estoppel. In Arkansas, an affirmative defense is defined as any matter: (1) so designated by a section of this code; or (2) so designated by a statute that is not a part of this code. Ar\u00edt. Code Ann. \u00a7 5-1-111 (d) (Repl. 1997).\nThe State attacks the trial court\u2019s instruction on entrapment by estoppel in two ways. First, the State contends that because entrapment by estoppel is not an affirmative defense designated by the criminal code or other statute, the trial court was not authorized to give such an instruction on this defense. The appellee does not dispute that entrapment by estoppel is not available under Arkansas law. However, she does assert that because the affirmative defense of entrapment by estoppel is derived from the due process protections guaranteed by the United States Constitution, the State cannot prohibit its use.\nIn its brief, the State failed to address the appellee\u2019s argument that entrapment by estoppel is guaranteed by due process. Rather, it argues that Ms. Hagan-Sherwin\u2019s case is not the type of case where due process is concerned. In other words, the State contends that Ms. Hagan-Sherwin\u2019s particular circumstances do not warrant the entrapment-by-estoppel instruction in this particular case. Thus the State is not asking for an interpretation of the law, but rather a ruling on the application of the law to the facts of this particular case. Because the State\u2019s argument merely raises the issue of application, and not the interpretation, of a statutory provision, the appeal does not involve the correct and uniform administration of the criminal law. State v. Hulum, 349 Ark. 400, 78 S.W.3d 111 (2002). Such an argument is not a proper basis for an appeal by the State, so this point on appeal must also be dismissed.\nIn its second attack on the entrapment-by-estoppel defense, the State contends that the trial court\u2019s instruction on entrapment by estoppel misstated the law. The State contends that even if this defense is available in Arkansas, the instruction should have been worded differently. However, the State failed to proffer a typewritten copy of its proposed instruction. This court has held on numerous occasions that the failure to proffer or abstract a proposed instruction precludes us from considering the issue on appeal. Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988); Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997); Shockley v. State, 282 Ark. 281, 668 S.W.2d 22 (1984).\nIn sum, the State\u2019s appeal merely presents issues of factual application. We do not accept such appeals by the State. Ark. R. App. P. \u2014 Crim. 3(c) (2003). State v. Ashley, 347 Ark. 523, 66 S.W.3d 563 (2002). In addition, we note that we express no opinion on the propriety of the instructions given by the trial court in this case.\nAppeal dismissed.\nGlaze and Brown, JJ., dissent.", "type": "majority", "author": "Betty C. Dickey, Chief Justice." }, { "text": "Robert L. Brown, Justice,\ndissenting. Today, the major-ii ity publishes an opinion in which it refuses to rule on the legitimacy of two jury instructions crafted and given for the first time by the Pulaski County Circuit Court. One instruction, the choice-of-evils instruction, is based on a statute in our criminal code. The second is a unique entrapment-by-estoppel instruction, which was given as an affirmative defense. Neither instruction is part of our Arkansas Model Criminal Instructions.\nThe majority says it is deciding the way it is because the instructions were given in connection with one factual situation and, thus, this case does not involve the uniform administration of justice as required under Rule 3. I disagree. For one thing, under this reasoning, the State could never appeal the legitimacy of a new custommade jury instruction. But, more importantly, by not addressing the issue of the validity of the two instructions, this court does not preclude their use for another day in another trial. Instructions that find their way into our caselaw receive a certain imprimatur of approval.\nThe majority relies on State v. McCormack, 343 Ark. 285, 34 S.W.3d 735 (2000), as authority for dismissing this case, but that case is not apposite. In McCormack, we declined to take the case because it involved a determination of whether there was a rational basis for giving an instruction on a lesser-included offense. We decided that was an issue that required a factual analysis, that is, whether the facts provided a rational basis. But we specifically did not address the issue of whether the circuit court misinterpreted the statute in giving the instruction, because that issue was raised for the first time in the State\u2019s reply brief. Misinterpretation and error in giving the choice-of-evils instruction are the precise issues before this court in the instant case.\nThe same hold true of State v. Hulum, 349 Ark. 400, 78 S.W.3d 111 (2002), also adduced by the majority. It too is inapposite. That case concerned whether the circuit court erred in finding a rational basis for giving the manslaughter instruction. To state the obvious, the case before us does not involve the application of an existing lesser-included-offense instruction to the facts of a case, but, rather, whether a new instruction can be fashioned from a statute and then applied to a case by the circuit court when the case does not involve physical injury or destruction of property.\nI would accept the State\u2019s appeal and consider whether the two instructions do wander far afield from what is appropriate and whether error was committed. Otherwise, this court would appear to be giving carte blanche approval for use of these instructions in future factual settings. In short, I would meet the issues raised by these instructions head on.\nI respectfully dissent.\nGlaze, J., joins in this dissent.", "type": "dissent", "author": "Robert L. Brown, Justice," } ], "attorneys": [ "Mike Beebe, Att\u2019y Gen., by: David R. Raupp, Senior Ass\u2019t Att\u2019y Gen., for appellant.", "Knutson Law Firm, by: Gregg A. Knutson, for appellee." ], "corrections": "", "head_matter": "STATE of Arkansas v. Debbie HAGAN-SHERWIN\nCR 03-249\n158 S.W.3d 156\nSupreme Court of Arkansas\nOpinion delivered April 8, 2004\n[Rehearing denied May 20, 2004.]\nMike Beebe, Att\u2019y Gen., by: David R. Raupp, Senior Ass\u2019t Att\u2019y Gen., for appellant.\nKnutson Law Firm, by: Gregg A. Knutson, for appellee.\nGLAZE and Brown, J.J., would grant rehearing." }, "file_name": "0597-01", "first_page_order": 621, "last_page_order": 632 }