Opinion highlights for the week of April 27, 2025

 

This week, the Arkansas Supreme Court handed down six decisions, while the Arkansas Court of Appeals handed down fifteen signed decisions.  We'll concentrate on a few of the candidates for mention here.

A standard of review discussion occupied part of the opinion in Parker v. State, 2025 Ark. 55.  Parker challenged the trial court's decision not to instruct the jury on a lesser-included offense.  The Arkansas Supreme Court's majority stated the standard of review:

If the slightest evidence supports giving an instruction on a lesser-included offense, a circuit court commits reversible error by refusing to give it. ... We review a circuit court's rulings concerning jury instructions for abuse of discretion.  This is a high standard that does not simply require error in the circuit court's decision, but that the circuit court acted improvidently, thoughtlessly, or without due consideration.

Id. at 6-7 (citations omitted).  The majority appended a footnote to this statement:

The concurrence asserts that our standard for lesser-included-offense instructions imposes a higher bar than we currently recognize.  That said, while we do not deny our ability to address potentially confusing issues in our case law when properly before us, that is not the case here.

Id. at 7 n.2.

The concurrence asserts that the court applies a different standard of review than suggested by the language used in the majority opinion.  The concurrence takes a deep dive into the basis and history of the "failure to give a lesser-included instruction" standard of review, and suggests clarifying the standard actually applied:

I’d take a different approach and use this case as an opportunity to clarify the law and hold that: (1) a lower court isn’t required to give a lesser-included instruction unless there’s a sound evidentiary basis for acquitting the defendant of the charged crime and instead convicting him of the lesser; and (2) on appeal, reversal is only warranted (not required) where a judge has abused his or her discretion—that is acted thoughtlessly, improvidently, or without due consideration—in making that determination.

Id. at 14.

Turning to the Court of Appeals, in Love v. State, 2025 Ark. App. 263, the court found that an issue was not preserved for review because the motion for a directed verdict was not specific enough.  Love argued on appeal that the evidence was insufficient to prove he possessed a rifle found in his truck; at trial, his motion stated that "the State has failed to make a prima facie case that [Love] possessed a firearm." Id. at 1.  "An argument that the State has not made a prima facie case is insufficient to preserve any specific deficiency in the State's case for appellate review." Id. at 1-2.

Smith v. Arkansas Department of Human Services, 2025 Ark. App. 271, addressed a preservation issue of interest to parents' counsel.  One of the arguments raised in this termination of parental rights appeal was that the evidence was not sufficient to show meaningful efforts by DHS.  The court found that this argument was not preserved.

Here, [the parent] did not appeal from the finding in the permanency-planning order that DHS had made reasonable efforts to provide family services. Furthermore, she made no objection at the termination hearing that DHS had failed to provide services; therefore, she has waived that issue on appeal.

Id. at 13.  Failure to raise a timely objection - and to the correct order - deserves consideration.

Finally, in Howard v. Jefferson Regional Medical Center, 2025 Ark. App. 277, the court offered a reminder to diligently consider amending notices of appeal.  The trial court granted a motion to dismiss against the Estate for failure to state a claim on September 29, 2023.  The Estate filed a motion for reconsideration on October 9, 2023, and a notice of appeal on October 26, 2023.

Significantly, the trial court never ruled on the motion for reconsideration, nor did the Estate amend its notice of appeal regarding this deemed denial.  That was fatal.  The "Estate did not amend its notice of appeal to include the deemed denial of the motion; therefore, this argument is not preserved for our review." Id. at 7.

I hope these summaries are beneficial - have a great rest of your week!