George L. Clay III v. State of Arkansas

Cite as 2019 Ark. App. 356
Digitally signed by Elizabeth
Perry
ARKANSAS COURT OF APPEALS
Date: 2022.07.22 10:10:30 DIVISION I
-05'00' No. CR-18-834
Adobe Acrobat version:
2022.001.20169 OPINION DELIVERED: SEPTEMBER 4, 2019

GEORGE L. CLAY, III
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT, FIRST
DIVISION
V. [NO. 60CR-16-2538]

HONORABLE LEON JOHNSON,
STATE OF ARKANSAS JUDGE
APPELLEE
AFFIRMED

ROBERT J. GLADWIN, Judge

In this appeal of his June 28, 2018 conviction for driving while intoxicated (DWI),

George L. Clay III argues that the circuit court abused its discretion by admitting hearsay

evidence during his bench trial and that he was prejudiced as a result. We affirm.

I. Procedural History

Clay was charged with DWI and having been previously convicted of seven DWIs

charged within ten years of the first offense. He was also charged with possession of a

Schedule I or II controlled substance. At trial, the arresting police officer testified that Clay

had been found passed out in the driver’s seat of his car, which was in a ditch. He was

revived by emergency personnel and taken to the hospital. Police found two and a half

Tylenol oxycodone pills in Clay’s wallet. Clay refused a blood test, but the officer said that

he believed Clay was intoxicated because of his bloodshot eyes, his slurred speech, his erratic

behavior, and the odor of intoxicants about his person.
At the conclusion of the State’s testimonial evidence, the State offered certified copies

of Clay’s three prior misdemeanor-DWI convictions and four prior felony-DWI

convictions. The misdemeanors were evidenced by certified docket sheets from the

Sherwood District Court and the North Little Rock District Court, and the felonies were

represented by sentencing orders filed in the Pulaski County Circuit Court. Clay objected

to the certified copies of the docket sheets arguing that the documents did not fall under the

exceptions to the rule excluding hearsay. Specifically, Clay argued that the documents

should not be admitted under either Arkansas Rule of Evidence 803(8) (public-records

exception) or Rule 803(22) (prior-judgments-of-conviction exception). The circuit court

overruled the objection and admitted the docket sheets.

Clay was found guilty of violating Arkansas Code Annotated section 5-65-103(a)(1)

(Repl. 2016), DWI sixth or subsequent offense, and section 5-64-419(b)(2)(A) (Repl. 2016),

possession of a Schedule I or II controlled substance, and he was sentenced to six years’

imprisonment on each count to be served concurrently in the Arkansas Department of

Correction. He filed a timely notice of appeal, and this appeal followed.

II. Standard of Review

We review evidentiary rulings using an abuse-of-discretion standard, and trial courts

are afforded wide discretion in evidentiary rulings. Campbell v. State, 2017 Ark. App. 59, at

4, 512 S.W.3d 663, 666. Our court will not reverse an evidentiary ruling absent a showing

of error and resulting prejudice. Id.

We construe court rules using the same principles and canons of construction
used to interpret our statutes. Jones v. State, 2018 Ark. App. 211. When reviewing
issues of statutory interpretation, the first rule in considering the meaning and effect
of a statute is to construe it just as it reads, giving words their ordinary and usually

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accepted meaning in common language. Rylwell, L.L.C. v. Ark. Dev. Fin. Auth., 372
Ark. 32, 269 S.W.3d 797 (2007). When the language of a statute is plain and
unambiguous, there is no need to resort to the rules of statutory construction. Id.

Cruz v. State, 2019 Ark. App. 91, at 3, 572 S.W.3d 27, 28. We review issues of statutory

construction de novo, as it is for the appellate court to decide what a statute means. Hodges

v. Huckabee, 338 Ark. 454, 459, 995 S.W.2d 341, 345 (1999).

III. Arkansas Rule of Evidence 803(22)

Hearsay is not admissible except as provided by law or by the Arkansas Rules of

Evidence. Ark. R. Evid. 802. Rule 803 provides exceptions to the rule excluding hearsay,

and Clay argues that prior misdemeanor convictions fall outside the hearsay exception set

forth in Rule 803(22). Rule 803 (22) provides that proof of final judgments “adjudging a

person guilty of a crime punishable by death or imprisonment in excess of one (1) year, to

prove any fact essential to sustain the judgment” are admissible. Accordingly, Clay argues

that the documents depicting his three misdemeanor convictions were inadmissible because

a conviction for first-, second-, or third-offense DWI is punishable by not more than one

year in prison, see Ark. Code Ann. § 5-65-111(a)–(c) (Supp. 2017), and the exception applies

to imprisonment in excess of one year.

The State addresses only one aspect of Rule 803(22)—prior judgments of conviction

are admissible to “prove any fact essential to sustain the judgment.” The State contends that

this rule has no application to the proof offered because the docket sheets were a mere

recordation of the legal existence of a prior conviction, which is a public record under Rule

803(8).

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Both arguments are convincing. Giving the words of Rule 803(22) their ordinary

meaning, it is clear that prior judgments referred to in the rule do not apply to misdemeanor

convictions because, as argued by Clay, the convictions at issue were not punishable by

more than one year in prison. Accordingly, the circuit court abused its discretion by

overruling Clay’s objection to the evidence based on this rule. However, our analysis does

not end here.

IV. Arkansas Rule of Evidence 803(8)

Rule 803(8) provides for the admission of public records:

To the extent not otherwise provided in this paragraph, records, reports,
statements, or data compilations in any form of a public office or agency setting forth
its regularly conducted and regularly recorded activities, or matters observed pursuant
to duty imposed by law and as to which there was a duty to report, or factual findings
resulting from an investigation made pursuant to authority granted by law.

Clay argues that certified copies of the docket sheets reflecting his three misdemeanor

convictions were not admissible pursuant to this rule because of the express exception for

judgments of conviction set forth in Rule 803(22). “The phrase expressio unius est exclusio

alterius is a fundamental principle of statutory construction that the express designation of

one thing may properly be construed to mean the exclusion of another.” MacSteel Div. of

Quanex v. Ark. Okla. Gas Corp., 363 Ark. 22, 31, 210 S.W.3d 878, 883 (2005). Relying

on this guideline, Clay claims that because his misdemeanor convictions are not included in

Rule 803(22)—as they are not subject to punishment by death or imprisonment in excess

of one year—Rule 803(22) must exclude misdemeanor convictions.

Clay further contends that a judgment of conviction is a judicial finding of fact that

the defendant was guilty of having committed some criminal offense and is hearsay if offered

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to prove a fact essential to sustain the conviction. See Ark. R. Evid. 803(22). Clay argues

that the misdemeanor convictions for DWI were offered to prove a fact essential to sustain

“each judgment.” He claims that the three misdemeanor convictions were “implied

assertions by the district court judge in each case that Appellant Clay had previously driven

a vehicle while intoxicated.” Ultimately, he argues that had the drafters of Rule 803(8)

intended to include documents setting forth judicially found facts in misdemeanor cases,

such an exception would have been included in Rule 803(22).

The State argues that the circuit court did not abuse its discretion by admitting the

docket sheets under Rule 803(8). The State points to the Omnibus DWI Act, which

requires courts to keep records of any violation of the act. Ark. Code Ann. § 5-65-

110(a)(1)–(2) (Repl. 2016) (courts shall keep a record of violation of DWI law and record

of court action). The State relies on Thomas v. State, 2 Ark. App. 238, 243, 620 S.W.2d

300, 303 (1981), wherein this court held that docket-sheet entries are admissible under Rule

803(8), and that they are a proper foundation for the certified orders of commitment used

to prove prior felony convictions. The State also cites Reeves v. State, 263 Ark. 227, 231,

564 S.W.2d 503, 505 (1978), wherein our supreme court allowed a court clerk’s testimony

regarding docket entries under Rule 803(8) when there was no suggestion that the docket

entries did not correctly reflect the court’s judgment in the earlier cases. In his reply brief,

Clay contends that in both Thomas and Reeves there had been foundational testimony for

the admissibility of the docket sheets as public records, and none was offered in the instant

case. Further, neither case addresses the admissibility of documentary proof of prior

misdemeanor convictions as public records pursuant to Rule 803(8).

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When interpreting our rules of evidence, “we desire to maintain an interpretation of

the Uniform Rules that is reasonably consistent with other states as well as with the Federal

Rules of Evidence.” Proctor v. State, 349 Ark. 648, 666, 79 S.W.3d 370, 381 (2002) (citing

Rhodes v. State, 276 Ark. 203, 210, 634 S.W.2d 107, 111 (1982)). In United States v. Nguyen,

465 F.3d 1128, 1131–32 (9th Cir. 2000), the court did not allow evidence of prior

convictions based on pleas of nolo contendere to provide the jury with a basis to infer that

the defendant actually committed the underlying crimes.

In analyzing the lower court’s admission of the convictions under Federal Rule of

Evidence 803(8) and 803(22), the court addressed Clay’s argument in the instant case—the

more specific rule contained in 803(22) should exclude misdemeanor convictions from

being admitted under 803(8):

The judgments of conviction could not properly have been admitted under
Rule 803(8), either. That rule exempts from the hearsay rule public records and
reports. That more general reference in Rule 803(8) cannot trump the more specific
limitation on the admission of judgments of conviction. All judgments of conviction
may be said to be public records, but the exemption under Rule 803(8) cannot be
deemed to cover such judgments because it would make Rule 803(22) superfluous.
See United States v. Weiland, 420 F.3d 1062, 1074 (9th Cir. 2005) (noting that
evidence cannot be admitted under a general evidentiary rule in order to circumvent
a more specific rule prohibiting admission).

Our circuit has previously affirmed the admission into evidence of
misdemeanor judgments of conviction under this rule in certain circumstances. See
United States v. Loera, 923 F.2d 725, 730 (9th Cir. 1991); United States v. Wilson, 690
F.2d 1267, 1275 n.2 (9th Cir. 1982). In these cases, however, the misdemeanor
judgments of conviction were not admitted for the purpose of proving that the
defendant committed the underlying crimes charged therein. Rather, the convictions
tended to prove some other element of subsequent crimes charged. In Loera, a
defendant’s prior drunk driving misdemeanor judgments of conviction were
admitted for the limited purpose of establishing the element of malice required for
second degree murder, i.e., that the defendant had grounds to be aware of the risk
that drunk driving presented to others. 923 F.2d at 729. Similarly, in Wilson, at the
defendant’s trial on escape charges, his prior misdemeanor judgment of conviction

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for counterfeiting was admitted to establish that he had been incarcerated at the time
that he was alleged to have escaped. 690 F.2d at 1275.

The admission of misdemeanor judgments of conviction under Rule 803(8),
per Loera and Wilson, should be confined to the set of circumstances present in those
cases. In other words, misdemeanor judgments of conviction may be admissible
under Rule 803(8) to prove some other element of a subsequently charged crime,
but they are not admissible to prove that the defendant actually committed the
underlying crimes charged. See Olsen, 189 F.3d at 63 (citing 4 Mueller & Kirkpatrick,
Federal Evidence, § 471, at 660). Without this limitation to its reach in place, Rule
803(8) would swallow whole Rule 803(22)’s prohibition against the admission of
misdemeanor convictions resulting from pleas of nolo contendere. Such a result
could not have been intended by the drafters of the Federal Rules of Evidence. In
short, there was no basis under the Federal Rules of Evidence for the district court
to have admitted the certified copies of Nguyen's misdemeanor nolo contendere
convictions.

Nguyen, 465 F.3d at 1132.

We hold that the admission of Clay’s three prior misdemeanor-DWI convictions was

not an abuse of discretion under Rule 803(8). The evidence falls squarely within the public-

records exception to the rule excluding hearsay. Further, as described by the Ninth Circuit

in Nguyen, the evidence was admissible to prove an element of a subsequently charged

crime—that Clay had been convicted of seven DWIs—not to prove that Clay actually

committed the underlying misdemeanors charged; thus, the conflict that Clay argues exists

between Rules 803(22) and 803(8) is resolved.

V. Prejudice

Clay contends that he was prejudiced as a result of the circuit court’s erroneous

admission of the docket sheets. The three misdemeanor convictions added to his four prior

felony convictions total seven prior DWI convictions. Accordingly, Clay was found guilty

of DWI for the eighth time and was sentenced as a Class B felon. Ark. Code Ann. § 5-65-

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111(f)(1). The minimum sentence for a Class B felon with four or more felony convictions

is five years. Ark. Code Ann. § 5-4-501(b)(2)(C) (Repl. 2013).

Clay was sentenced for his eighth-offense DWI and as a habitual offender with four

or more prior felony convictions to six years’ imprisonment. He argues that the circuit

court intended that he serve a lenient sentence despite his being a habitual offender and

having eight DWI convictions. He asserts that had the three misdemeanors been excluded,

he would have been found guilty of his fifth DWI, not eighth, and his minimum sentence

would have been two years. Ark. Code Ann. § 5-65-111(e)(1)(A) (fifth DWI is an

unclassified felony with a sentence from two to ten years). He concludes that he would

have been sentenced to only three years if the circuit court had imposed a sentence of one

year more than the minimum. This three-year difference is the prejudice he alleges he

suffered due to the circuit court’s decision to admit the evidence of his prior misdemeanors.

Clay’s prejudice argument is based on speculation. The maximum sentence allowed

under Arkansas Code Annotated section 5-65-111(e)(1)(A) for a fifth DWI is ten years.

Further, Clay’s habitual-offender status remains regardless of the circuit court’s decision on

the admission of the misdemeanor convictions. A habitual offender may be sentenced for

an unclassified felony for not more than two times the maximum sentence for the

unclassified felony offense. Ark. Code Ann. § 5-4-501(b)(2)(F). Therefore, had Clay been

convicted of his fifth DWI offense rather than his eighth, the maximum allowable sentence

would have been twenty years. Because he was sentenced to less than the maximum

sentence under either his argued fifth-DWI scenario or for his eighth DWI, Clay cannot

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demonstrate prejudice. See Lacy v. State, 2018 Ark. App. 66, at 4 (no prejudice shown when

sentenced to less than the statutory maximum).

Affirmed.

VAUGHT and BROWN, JJ., agree.

William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender,

for appellant.

Leslie Rutledge, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.

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