{ "id": 8155327, "name": "Warren LAW v. STATE of Arkansas", "name_abbreviation": "Law v. State", "decision_date": "2009-02-05", "docket_number": "CR 08-231", "first_page": "505", "last_page": "519", "citations": [ { "type": "official", "cite": "375 Ark. 505" }, { "type": "parallel", "cite": "292 S.W.3d 277" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "368 Ark. 87", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3799116 ], "weight": 2, "year": 2006, "pin_cites": [ { "parenthetical": "the trier of fact alone determines the credibility of witnesses and apportions the weight to be given to the evidence" }, { "parenthetical": "the trier of fact alone determines the credibility of witnesses and apportions the weight to be given to the evidence" } ], "opinion_index": 0, "case_paths": [ "/ark/368/0087-01" ] }, { "cite": "374 Ark. 415", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3689538 ], "weight": 2, "year": 2008, "pin_cites": [ { "parenthetical": "pursuant to Amendment 7 oftheArkansas Constitution,Acts of the GeneralAssembly that do not contain an emergency clause or a specified effective date become effective on the ninety-first day after the legislature adjourns" }, { "parenthetical": "pursuant to Amendment 7 oftheArkansas Constitution,Acts of the GeneralAssembly that do not contain an emergency clause or a specified effective date become effective on the ninety-first day after the legislature adjourns" } ], "opinion_index": 0, "case_paths": [ "/ark/374/0415-01" ] }, { "cite": "92 Ark. App. 425", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142547 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark-app/92/0425-01" ] }, { "cite": "344 Ark. 602", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 210178 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/344/0602-01" ] }, { "cite": "374 Ark. 341", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3689147 ], "weight": 2, "year": 2008, "opinion_index": 0, "case_paths": [ "/ark/374/0341-01" ] }, { "cite": "367 Ark. 262", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3696308 ], "weight": 3, "year": 2006, "opinion_index": 0, "case_paths": [ "/ark/367/0262-01" ] }, { "cite": "365 Ark. 274", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3287551 ], "weight": 4, "year": 2006, "opinion_index": 0, "case_paths": [ "/ark/365/0274-01" ] }, { "cite": "342 Ark. 691", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342431 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/342/0691-01" ] }, { "cite": "348 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 74116 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/348/0001-01" ] }, { "cite": "363 Ark. 345", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3557556 ], "weight": 5, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark/363/0345-01" ] }, { "cite": "6 Ark. App. 380", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6143111 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark-app/6/0380-01" ] }, { "cite": "341 Ark. 665", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257724 ], "weight": 3, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/341/0665-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-2-202", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1997, "pin_cites": [ { "page": "(4)" } ], "opinion_index": 0 }, { "cite": "330 Ark. 134", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298610 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "141" }, { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/ark/330/0134-01" ] }, { "cite": "258 Ark. 233", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1621257 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "238", "parenthetical": "\"For criminal liability to be based upon a failure to act, it must be found that there was a duty to act - a legal duty and not simply a moral duty.\"" }, { "page": "393", "parenthetical": "\"For criminal liability to be based upon a failure to act, it must be found that there was a duty to act - a legal duty and not simply a moral duty.\"" } ], "opinion_index": 0, "case_paths": [ "/ark/258/0233-01" ] }, { "cite": "317 Ark. 86", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443735 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "89-90" }, { "page": "254" } ], "opinion_index": 0, "case_paths": [ "/ark/317/0086-01" ] }, { "cite": "348 Ark. 524", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 74057 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "529", "parenthetical": "\"In its ordinary sense the word 'or' is a disjunctive particle that marks an alternative, generally corresponding to 'either,' as 'either this or that'; it is a connective that marks an alternative.\"" }, { "page": "624", "parenthetical": "\"In its ordinary sense the word 'or' is a disjunctive particle that marks an alternative, generally corresponding to 'either,' as 'either this or that'; it is a connective that marks an alternative.\"" } ], "opinion_index": 0, "case_paths": [ "/ark/348/0524-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-28-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 6, "year": 2003, "pin_cites": [ { "page": "(3)" }, { "page": "(10)", "parenthetical": "emphasis added" }, { "page": "(10)(A)" }, { "page": "(10)" }, { "page": "(ll)(B)(i)", "parenthetical": "as amended by Act 1810 of 2005" } ], "opinion_index": 0 }, { "cite": "363 Ark. 272", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3557937 ], "weight": 3, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark/363/0272-01" ] }, { "cite": "373 Ark. 127", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3664681 ], "weight": 2, "year": 2008, "opinion_index": 0, "case_paths": [ "/ark/373/0127-01" ] }, { "cite": "289 S.W.3d 423", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 8152665, 3689746 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/ark/375/0176-01", "/ark/374/0222-01" ] }, { "cite": "374 Ark. 222", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3689746 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/ark/374/0222-01" ] }, { "cite": "368 Ark. 256", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3798454 ], "weight": 2, "year": 2006, "opinion_index": 0, "case_paths": [ "/ark/368/0256-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-28-103", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 4, "year": 1997, "pin_cites": [ { "page": "(a)" }, { "page": "(c)(l)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1162, "char_count": 29924, "ocr_confidence": 0.77, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20091789135196686 }, "sha256": "eca4a118519269b54391b38d1c1cf03cccd71c76a336797f02f1709a5ea4461f", "simhash": "1:ae1c6964608b7e97", "word_count": 4990 }, "last_updated": "2023-07-14T22:36:16.941269+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Warren LAW v. STATE of Arkansas" ], "opinions": [ { "text": "Elana Cunningham Wills, Justice.\nOn March 14, 2005, emergency medical personnel were called to a residence at 4701 Elmwood in Little Rock. Once there, the emergency workers found eighty-six-year-old Geneva Law, covered in bruises and bedsores, with rodent feces on the bedroom floor and ants and cockroaches crawling on the floor, on the bed, and on Geneva. Geneva died in the hospital about a month later. Her son, appellant Warren Law, and her daughter, Mary Law, were both charged on September 11, 2005, with abuse of an adult pursuant to Ark. Code Ann. \u00a7 5-28-103 (Repl. 1997).\nPrior to trial, Warren filed a motion to dismiss the charges, arguing that the statute under which he was charged was unconstitutionally vague. The Pulaski County Circuit Court denied his motion, and the case proceeded to a bench trial on April 24 and 25, 2007. At that trial, the circuit court convicted Warren of abusing an adult and sentenced him to five years\u2019 imprisonment, with three years suspended. On appeal, Warren challenges the sufficiency of the evidence supporting his conviction and the constitutionality of the adult-abuse statute.\nIn his first point on appeal, Warren contends that the evidence was insufficient to convict him of abusing an adult. A motion to dismiss in a bench trial is identical to a motion for a directed verdict in a jury trial in that it is a challenge to the sufficiency of the evidence. See Springs v. State, 368 Ark. 256, 244 S.W.3d 683 (2006). A challenge to the sufficiency of the evidence asserts that the verdict was not supported by substantial evidence. See Sales v. State, 374 Ark. 222, 289 S.W.3d 423 (2008); Flowers v. State, 373 Ark. 127, 282 S.W.3d 767 (2008). Substantial evidence is evidence of sufficient force and character that without resorting to speculation and conjecture compels with reasonable certainty a conclusion one way or the other. Sales, supra. On appeal, this court does not weigh the evidence presented at trial, as that is a matter for the fact-finder, nor do we assess the credibility of the witnesses. See Woods v. State, 363 Ark. 272, 213 S.W.3d 627 (2005). We review the evidence in a light most favorable to the State and consider only the evidence that supports the verdict, and we will affirm where the record reveals that substantial evidence sustains the verdict. See id.\nAs mentioned above, Warren was charged with abuse of an adult in violation of Ark. Code Ann. \u00a7 5-28-103. That statute provides that it is \u201cunlawful for any person or caregiver to abuse, neglect, or exploit any person subject to protection under the provisions of this chapter.\u201d Ark. Code Ann. \u00a7 5-28-103(a) (Repl. 1997). Although the judgment and commitment order does not specify the particular subsection under which Warren was convicted, the order does state that he was convicted of a Class D felony, and the court commented that this was a case of \u201cextreme neglect.\u201d Therefore, we conclude that Warren was convicted under Ark. Code Ann. \u00a7 5-28-103(c)(l) (Repl. 1997), which provides as follows:\n(c)(1) Any person or caregiver who neglects an endangered or impaired adult in violation of the provisions of this chapter, causing serious physical injury or substantial risk of death, shall be guilty of a Class D felony and shall be punished as provided by law.\nAt the time of the offense, Ark. Code Ann. \u00a7 5-28-101 (Supp. 2003) provided the following definitions for the relevant portions of the statute:\n(3) \u201cCaregiver\u201d means a related or unrelated person ... that has the responsibility for the protection, care, or custody of an endangered or impaired adult as a result of assuming the responsibility voluntarily, by contract, through employment, or by order of the court;\n(5) \u201cEndangered adult\u201d means:\n(A) An adult eighteen (18) years of age or older who is found to be in a situation or condition which poses an imminent risk of death or serious bodily harm to that person and who demonstrates a lack of capacity to comprehend the nature and consequences of remaining in that situation or condition;\n(8) (A) \u201cImpaired adult\u201d means a person eighteen (18) years of age or older who, as a result of mental or physical impairment, is unable to protect himself or herself from abuse, sexual abuse, neglect, or exploitation, and as a consequence thereof is endangered;\n(10) \u201cNeglect\u201d means acts or omissions by an endangered adult; for example, self-neglect or intentional acts or omissions by a caregiver responsible for the care and supervision of an endangered or impaired adult constituting:\n(A) Negligently failing to provide necessary treatment, rehabilitation, care, food, clothing, shelter, supervision, or medical services to an endangered or impaired adult;\n(B) Negligently failing to report health problems or changes in health problems or changes in the health condition of an endangered or impaired adult to the appropriate medical personnel; or\n(C) Negligently failing to carry out a prescribed treatment plant]\nThus, to convict Warren of abuse of an adult, the State was required to prove that: 1) Geneva was an endangered or impaired adult; 2) Warren was a caregiver responsible for her protection, care, or custody; 3) he neglected her; and 4) such neglect caused serious physical injury or risk of death. Warren does not challenge the fourth of these elements. Instead, he contends that the State failed to prove that Geneva was endangered or impaired, that he was her caregiver, and that he neglected her.\nThe first of these elements is whether Geneva was an endangered or impaired adult. As proof on this issue, the State\u2019s first witness at trial, Donna Brady, introduced a report from the Adult Protective Services Division of the Department of Health and Human Services. According to Brady, the report indicated that Geneva came to the attention of Adult Protective Services (APS) in April of 2001. At that time, Geneva was living with her sister in Searcy because the home in Little Rock where she had been living with her daughter had been condemned as unsanitary and unsafe. Brady testified that a relative called APS to report that the sister could no longer care for Geneva. The case worker\u2019s report from April of 2001 indicated that Geneva was \u201cconfused to [the] point [that she] has to be cued to bathe.\u201d The report described her as \u201cvery confused\u201d and, although ambulatory, she was incapable of meeting her activities of daily living. The report also noted that she was \u201cvery confused and could not provide information without relying on her sister.\u201d\nBecause Geneva\u2019s sister could no longer care for her, and her own home had been condemned as \u201cunfit for human habitation,\u201d APS contacted Warren, who eventually picked Geneva up and took her to live with him and Mary. On April 18, 2001, the APS case worker confirmed with Geneva\u2019s sister that Geneva was unable to care for herself. Further, Mary testified at trial that, four years later, Geneva was still unable to care for herself and had undergone \u201ca rapid deterioration.\u201d\nClearly, the State proved that Geneva was an impaired or endangered adult. A frail, confused, elderly woman who was incapable of meeting her own activities of daily living would certainly have been unable to protect herself from abuse or neglect, thus meeting the definition of \u201cimpaired.\u201d Further, the APS record indicated that she \u201cshowed limited signs of competency,\u201d was \u201cvery confused,\u201d and \u201ccould not provide information without relying on her sister.\u201d One in this condition would plainly \u201cdemonstrate[ ] a lack of capacity to comprehend the nature and consequences of remaining\u201d in a situation that placed her at imminent risk of death or serious bodily harm, thus meeting the definition of \u201cendangered.\u201d And as will be discussed more fully below, Geneva\u2019s situation most assuredly put her at imminent risk of death or serious bodily harm. Accordingly, the State proved that Geneva was an \u201cendangered or impaired adult.\u201d\nAs to the second element of the offense, Warren asserts that the State failed to prove that he was Geneva\u2019s caregiver. As discussed above, a \u201ccaregiver\u201d under section 5-28-101(3) is \u201ca related or unrelated person . . . that has the responsibility for the protection, care, or custody of an endangered or impaired adult as a result of assuming the responsibility voluntarily, by contract, through employment, or by order of the court.\u201d Ark. Code Ann. \u00a7 5-28-101(3) (Supp. 2003). Warren argues that the State failed to prove that he voluntarily assumed the responsibility of protecting or caring for Geneva.\nAt the outset, we note that \u201ccaregiver,\u201d as defined in section 5-28-101(3), is one who \u201chas the responsibility for the protection, care, or custody\u201d of an endangered adult. (Emphasis added.) The use of the disjunctive \u201cor\u201d indicates that the State need only prove that an individual has the responsibility for one of these aspects before he or she may be deemed a \u201ccaregiver.\u201d See, e.g., Bailey v. State, 348 Ark. 524, 529, 74 S.W.3d 622, 624 (2002) (\u201cIn its ordinary sense the word \u2018or\u2019 is a disjunctive particle that marks an alternative, generally corresponding to \u2018either,\u2019 as \u2018either this or that\u2019; it is a connective that marks an alternative.\u201d) (quoting McCoy v. Walker, 317 Ark. 86, 89-90, 876 S.W.2d 252, 254 (1994)). Because the State introduced proof that Warren agreed to pick Geneva up from her sister\u2019s house in Searcy and bring her home to live under his roof, there was clearly substantial evidence that Warren voluntarily assumed responsibility for Geneva\u2019s custody.\nHowever, Warren raises an additional argument wherein he asserts that he could not have been criminally responsible for neglecting Geneva unless he met the definition of \u201ccaregiver\u201d found in section 5-28-101(10), which defines \u201cneglect\u201d as the \u201cintentional acts or omissions by a caregiver responsible for the care and supervision of an endangered or impaired adult.\u201d Ark. Code Ann. \u00a7 5-28-101(10) (Supp. 2003) (emphasis added). This argument relates to a portion of the third element of the offense, set out above, regarding whether Warren \u201cneglected\u201d Geneva.\nHere, Warren argues that the state failed to prove that he voluntarily assumed the responsibility for Geneva\u2019s care and supervision and thus could not have \u201cneglected\u201d her under section 5-28-101(10). He contends that he initially refused this responsibility when Geneva\u2019s home was condemned, taking her at that time to live with her sister in Searcy. He also notes that it took APS \u201cseveral weeks\u201d to locate him when the sister became unable to care for Geneva, and he states that he \u201conly took Geneva into his home when [APS] told him he had to, and only then on the condition that Mary was in his home to provide Geneva \u2018full-time care.\u2019 \u201d On the basis of these factors, Warren maintains that he did not voluntarily assume the responsibility to provide for Geneva\u2019s care and supervision, and the State thus failed to prove this element of the crime.\nHowever, while Warren may have acted grudgingly and belatedly, the evidence introduced below supports the trial court\u2019s finding that he acted voluntarily and thus was Geneva\u2019s \u201ccaregiver\u201d under section 5-28-101(3) and was responsible for her \u201ccare and supervision\u201d under section 5-28-101(10). Despite his protests that he only took Geneva in when APS told him he \u201chad to,\u201d he nonetheless took her in, instead of telling APS to take his mother into the custody of the Department of Human Services or place her in a nursing home. The case summary report from APS states that APS contacted Warren and he indicated that \u201che would be coming to pick [Geneva] up on [April 18, 2001] to live with him in Little Rock.\u201d That it took a few days to locate Warren does not refute or negate the fact that he ultimately took his mother into his home where, according to the report, she could \u201creceive full time supervision.\u201d\nThe report further notes that Mary \u201cwill also be in the home to provide full time care.\u201d (Emphasis added.) The report does not, contrary to Warren\u2019s assertion, state that Mary\u2019s living in the home was a precondition to Warren\u2019s decision to take his mother in, and it does not prove that Mary was intended to be the individual with sole responsibility for caring for Geneva. Rather, it simply indicates that she would be an additional presence in the home. Moreover, although Warren apparently preferred to have his sister attend to Geneva\u2019s day-to-day needs, it was nonetheless his decision to personally pick up his endangered and impaired mother and bring her to live under his roof. This decision thereafter effectively denied Geneva any further services from APS, as the case summary report reflected that there was \u201c[n]o further APS needed at this time.\u201d\nHaving brought her into his home under these conditions, Warren voluntarily assumed the responsibility for the protection, care, or custody of an endangered and impaired adult, making him a \u201ccaregiver\u201d under section 5-28-101(3), and he was responsible for the care and supervision of that person for purposes of the definition of \u201cneglect\u201d under section 5-28-101 (10). Therefore, we conclude that there was substantial evidence showing that Warren was Geneva\u2019s caregiver and that he was a caregiver as that word is used in the definition of neglect.\nThis leads us to the balance of Warren\u2019s third sub-point, wherein he argues that the State failed to prove that he neglected Geneva. Neglect, as defined in section 5-28-101(10), includes \u201cintentional acts or omissions by a caregiver responsible for the care and supervision of an endangered or impaired adult constituting . . . negligently failing to provide necessary treatment, rehabilitation, care, food, clothing, shelter, supervision, or medical services to an endangered or impaired adult.\u201d\nWarren\u2019s argument on the first portion of the \u201cneglect\u201d inquiry focuses on his claim that he owed no legal duty to Geneva. He notes that the statute requires an intentional act or omission, and he contends that, in order to demonstrate such an act or omission, the State had to prove that he owed a legal duty to act. See, e.g., Flippo v. State, 258 Ark. 233, 238, 523 S.W.2d 390, 393 (1975) (\u201cFor criminal liability to be based upon a failure to act, it must be found that there was a duty to act \u2014 a legal duty and not simply a moral duty.\u201d). However, by proving that Warren was Geneva\u2019s caregiver under section 5-28-101(3), as well as a person responsible for her care and supervision under section 5-28-101(10), as discussed above, the State proved that Warren did, in fact, have a legal duty to act.\nWarren raises a further argument wherein he suggests that, at most, Geneva was an invitee in his home and that he therefore owed her only a duty to refrain from wantonly or willfully causing her injury. See, e.g., Turner v. Stewart, 330 Ark. 134, 141, 952 S.W.2d 156, 160 (1997). This argument misses the mark, however, as he had a duty under the statutes discussed above to refrain from engaging in acts or omissions such as \u201c[negligently failing to provide necessary treatment, rehabilitation, care, food, clothing, shelter, supervision, or medical services to an endangered or impaired adult.\u201d Ark. Code Ann. \u00a7 5-28-101(10)(A) (Supp. 2003). \u201cNegligently\u201d is defined in the Arkansas Criminal Code as follows:\nA person acts negligently with respect to attendant circumstances or a result of his conduct when he should be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the actor\u2019s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor\u2019s situation.\nArk. Code Ann. \u00a7 5-2-202(4) (Repl. 1997).\nThis court has noted that negligent conduct is distinguished from reckless conduct primarily in that it does not involve the conscious disregard of a perceived risk. See Hunter v. State, 341 Ark. 665, 19 S.W.3d 607 (2000). In order to be held to have acted negligently, it is not necessary that the actor be fully aware of a perceived risk and recklessly disregard it. It requires only a finding that under the circumstances he should have been aware of it and his failure to perceive it was a gross deviation from the care a reasonable, prudent person would exercise under those circumstances. Id. (citing Phillips v. State, 6 Ark. App. 380, 644 S.W.2d 288 (1982)). The facts introduced at trial satisfy this requirement.\nAngela Bain, a paramedic with Metropolitan Emergency Medical Services (MEMS), testified that she responded to a non-emergency call at 4701 Elmwood in Little Rock on March 14, 2005. As she walked around to the back of the home, she was met with a strong odor that \u201csmelled like rotting flesh.\u201d Upon entering the house, she found Geneva, whom she described as having \u201call kinds of bruises of varying age on her\u201d and in an environment that \u201cwas not. . . appropriate . . . for anyone to be in.\u201d Bain stated that there were rodent feces on the floor and ants and cockroaches crawling on the bed and on Geneva. Geneva was lying on a mattress that appeared to be soaked with urine and feces with a deflated plastic mattress, a plastic garbage bag, and soaked newspapers underneath her.\nSergeant Cristie Phillips of the Little Rock Police Department testified that when she got to the scene, Geneva had already been transported to the hospital by medical personnel, but she could \u201cimmediately smell just an overwhelming stench of feces. It smelled like rotting flesh.\u201d Phillips also went to the hospital to take photographs of Geneva, whom Phillips said was \u2018 \u2018black and blue all over.\u201d One of Geneva\u2019s ears was completely swollen shut, and she had bruises all over her face. She also had \u201ccrater-sized\u201d bedsores that \u201cyou could have stuck your fist in.\u201d Phillips noted that at the time she arrived in the emergency room, there were still ants crawling on Geneva, and nurses were \u201cpicking the ants off her skin.\u201d\nKimberly Finklestein, a crime scene specialist with the Little Rock Police Department, testified that the house was in \u201cdisarray\u201d and was \u201cextremely, extremely filthy.\u201d She saw what appeared to be animal feces on the floor of Geneva\u2019s room, as well as the rest of the house. The mattress of Geneva\u2019s bed was soaked and stained with urine and mold, as was the carpet underneath the bed. There were ants and roaches \u201cjust crawling everywhere.\u201d When Fink-lestein went to the hospital to see Geneva, she said that she knew she was approaching Geneva\u2019s room because, as she was walking down the hallway, she could smell the same stench she had smelled in the house. On redirect examination, Finklestein testified that there was no part of Warren\u2019s house where one could not smell \u201cthat smell.\u201d\nLittle Rock Code Enforcement Supervisor Sheila Reynolds testified that she was asked to go the Elmwood residence by police. After confirming in the property records that the house belonged to Warren, Reynolds went to the residence some four and a half hours after Geneva had been taken to the hospital. She stated that when she got to the door, there was \u201csuch a strong odor that we had to turn around and go back to our vehicle and get some Vick\u2019s and put across our nose so we could go in.\u201d She described the smell as being a \u201cvery strong urine smell\u201d and a \u201crotted-flesh type smell.\u201d\nReynolds described the house, stating that there was a \u201clot of stuff piled on the floor.\u201d In Geneva\u2019s room, there were \u201cfeathers and rat droppings, possibly rabbit droppings\u201d on the floor by her bed, and the bed appeared to be stained with bodily fluids. Ants were crawling on the comforter, and there was \u201ctrash and stuff in the closet, kind of like maybe an animal had lived in there.\u201d The remainder of the house was \u201cunsanitary\u201d and \u201cfilthy,\u201d and the bathtub was black with mold and mildew. There was nothing between Geneva\u2019s room and the rest of the house that would have sealed her area off, other than a bedroom door.\nThe State also called Lynn Espejo, the clinic administrator for Geneva\u2019s former doctor, Dr. Scott Brown. Espejo testified that Geneva had not been in to see the doctor since January of2001. At that time, Geneva weighed 162 pounds and was classified as \u201cobese.\u201d She noted that there had been calls from the pharmacy to refill Geneva\u2019s blood-pressure medication, but she said that in 2004, Dr. Brown refused to confirm her prescription until she came back in to see him.\nDr. Moses Ejiofor was the emergency room physician on call the day that Geneva was brought to the hospital. He said that she \u201clooked like bone\u201d and was very weak, disheveled, unkempt, and malnourished. Dr. Ejiofor also described the smell of rotting flesh, which he determined was coming, at least in part, from a large wound on her back through which he could see the outline of her spine. Geneva had other large ulcers on her pelvis, a large blood clot in her left ear, and bruises all over her body; further, the bruises were not all consistent with her having fallen. Her bedsores were necrotic and black and appeared to have been there for some time. Dr. Ejiofor said that he knew Geneva was in pain and he could hear her moaning, but she was so weak that she could not even flinch away from him. In addition to her other injuries, Geneva also had a fluid build-up or bleeding inside her brain, which was consistent with trauma. Cultures of her eyes revealed the presence of three different bacteria, and \u201capproximately eight to nine organisms\u201d were cultured from the ulcers.\nPlainly, the above testimony constituted substantial evidence that Warren should have been aware of the risk to Geneva, and his failure to perceive the risk posed to his mother was a gross deviation from the care a reasonable, prudent person would exercise under those circumstances. Numerous witnesses testified to the filth in the house and the overwhelming stench of rotting flesh that permeated the environment. It is inconceivable that these conditions went unnoticed, and it is equally inconceivable that these conditions arose overnight. By allowing the squalor to proliferate unchecked, and by either failing or refusing to remedy the circumstances, it is plain that Warren, as caregiver, negligently failed to \u201cprovide necessary treatment, . . . care, . . . shelter, [or] supervision\u201d for Geneva, an endangered or impaired adult. In short, the evidence demonstrated that Warren was guilty of neglecting Geneva.\nIn his second point on appeal, Warren urges that the circuit court erred in denying his motion to dismiss the charges against him on the grounds that the section 5-28-103 is void for vagueness. Statutes are presumed constitutional, and the burden of proving otherwise is on the challenger of the statute. Bowker v. State, 363 Ark. 345, 214 S.W.3d 243 (2005); Reinert v. State, 348 Ark. 1, 71 S.W.3d 52 (2002). If it is possible to construe a statute as constitutional, we must do so. Bowker, supra. Because statutes are presumed to be framed in accordance with the Constitution, they should not be held invalid for repugnance thereto unless such conflict is clear and unmistakable. Id.\nWe have said that a law is unconstitutionally vague under due process standards if it does not give a person of ordinary intelligence fair notice of what is prohibited and it is so vague and standardless that it allows for arbitrary and discriminatory enforcement. Id. (citing Cambiano v. Neal, 342 Ark. 691, 35 S.W.3d 792 (2000)). As a general rule, the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute\u2019s applicability to the facts at issue. Id.; Graham v. State, 365 Ark. 274, 229 S.W.3d 30 (2006). When challenging the constitutionality of a statute on the grounds of vagueness, the individual challenging the statute must be one of the \u201centrapped innocent\u201d who has not received fair warning. Graham, supra. If, by his action, that individual clearly falls within the conduct proscribed by the statute, he cannot be heard to complain. Id.\nOn appeal, Warren argues that section 5-28-103 is unconstitutionally vague in its definition of \u201ccaregiver.\u201d He states that section 5-28-101(3) defines a caregiver as \u201ca related . . . person . . . that has the responsibility for the protection, care, or custody of an endangered or impaired adult as a result of assuming the responsibility voluntarily, by contract, through employment, or by order of the court.\u201d On the other hand, in defining \u201cneglect,\u201d section 5-28-101(10) imposes criminal liability only on a caregiver who is \u201cresponsible for the care and supervision of an endangered or impaired adult.\u201d According to Warren, the statute is thus \u201cinconsistent in defining who is a caregiver criminally liable for neglect.\u201d\nHowever, as discussed above, the facts demonstrated that Warren clearly met either definition of \u201ccaregiver.\u201d He voluntarily assumed the responsibility for the protection, care, or custody of an endangered and impaired adult, and he was responsible for the care and supervision of that person. Because the facts adduced at trial place Warren squarely within the definitions of \u201ccaregiver,\u201d he is not an \u201centrapped innocent\u201d and thus cannot complain that the statute is unconstitutionally vague. See, e.g., Talbert v. State, 367 Ark. 262, 239 S.W.3d 504 (2006).\nWarren raises an additional point suggesting that the word \u201ccaregiver\u201d can be read so broadly as to \u201cimpose a legal duty of care and protection on one who invites another to be his or her roommate\u201d or on the owner of a bed-and-breakfast. However, this court has stated that if a statute clearly applies to the conduct of the party challenging the statute, the fact that the statute may be questionable in its application to speculative situations is immaterial. See Talbert, supra.\nAffirmed.\nWarren and Mary were also initially charged with second-degree murder, but the State nolle prossed the murder charges. Mary pled guilty to abuse of an adult and was sentenced to five years\u2019 imprisonment.\nWhile Warren did not place a copy of the APS report in his Addendum, the report is in the record, and this court may go to the record to affirm. See, e.g., Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008); McGehee v. State, 344 Ark. 602, 43 S.W.3d 125 (2001).\nMary moved in with Warren after her house was condemned in 2001.\nWarren cites Thomas v. State, 92 Ark. App. 425, 214 S.W.3d 863 (2005), for the proposition that a victim\u2019s condition at the time of his or her hospitalization cannot \u201cconstitute proof of either alternative status of an \u2018endangered\u2019 or \u2018impaired\u2019 adult.\u201d He urges that the \u201conly\u201d evidence that Geneva was an endangered or impaired person consisted of her age and the squalid conditions in which she was found. However, this is simply untrue, as shown by the APS report discussed above, which demonstrated that she was endangered and impaired at the time Warren picked her up at her sister\u2019s house in Searcy in 2001.\nIn his brief, Warren argues that it took APS \u201cseveral weeks\u201d to locate him. From the report, however, it appears that it took three or four days to locate Warren, and another six days before he picked Geneva up from her sister\u2019s house. The report states that the first home visit and interview with Geneva was on April 9, 2001. APS reached Warren on April 12, 2001, and he picked her up on April 18. Thus, his statement that it took \u201cseveral weeks\u201d to locate him is mere hyperbole.\nThe APS report states that Warren \u201cadvised he would come and get [Geneva] to live with him and her daughter.\u201d\nWarren\u2019s protestations that Mary was the person responsible for Geneva\u2019s care and supervision, and that his own health problems and work schedule prevented him from assuming that role, go to the weight rather than the sufficiency of the evidence on this point.\nIn his brief, Warren argues that the statute requires a \u201cpurposeful act or omission.\u201d However, at the time the crime was committed, the statute defined neglect as \u201cintentional acts or omissions by a caregiver.\u201d See Ark. Code Ann. \u00a7 5-28-101(10) (Supp. 2003). Subsequent amendments to the act clarify that neglect means, in pertinent part, a \u201cpurposeful act or omission by a caregiver . . . that constitutes negligently failing to . . . [p]rovide necessary treatment, rehabilitation, care, food, clothing, shelter, supervision, or medical services to an adult endangered person or an adult impaired person.\u201d Ark. Code Ann. \u00a7 5-28-101(ll)(B)(i) (Repl. 2007) (as amended by Act 1810 of 2005). Act 1810 did not include an emergency clause; therefore, the amendment was not effective until ninety days after the 2005 session adjourned on May 13, 2005. See, e.g., Reeves v. State, 374 Ark. 415, 288 S.W.3d 577 (2008) (pursuant to Amendment 7 oftheArkansas Constitution,Acts of the GeneralAssembly that do not contain an emergency clause or a specified effective date become effective on the ninety-first day after the legislature adjourns). As the crime here was committed in March of 2005, the earlier version of the statute is applicable.\nWarren did introduce the testimony of his estranged wife, Shannon Law, who stated that Warren\u2019s sense of smell was not the best. Apparently, he did not believe her when she said she smelled gas in the house, although he eventually repaired the gas leak, which stemmed from an extinguished pilot light. However, it was the trial court\u2019s duty to assign whatever weight it chose to this testimony. See, e.g., Buford v. State, 368 Ark. 87, 243 S.W.3d 300 (2006) (the trier of fact alone determines the credibility of witnesses and apportions the weight to be given to the evidence).", "type": "majority", "author": "Elana Cunningham Wills, Justice." } ], "attorneys": [ "J. Blake Hendrix, for appellant.", "Dustin McDaniel, Att\u2019y Gen., by: Karen Virginia Wallace, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Warren LAW v. STATE of Arkansas\nCR 08-231\n292 S.W.3d 277\nSupreme Court of Arkansas\nOpinion delivered February 5, 2009\nJ. Blake Hendrix, for appellant.\nDustin McDaniel, Att\u2019y Gen., by: Karen Virginia Wallace, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0505-01", "first_page_order": 535, "last_page_order": 549 }