Jack Nelson Jones

November 21-27, 2011

Davis v. Davis, 2011 Ark. App. 693, November 16, 2011. This appeal comes from the Union County Circuit Court, the Honorable Edwin Keaton presiding. Whitney and Michael Davis were married in August 2003, had a child, and subsequently divorced in October 2005.

In August 2006, Whitney drove to Michael’s workplace, called him on his cell phone, and slashed her wrists with the car door locked. She was hospitalized, and a court entered a temporary order on September 18, 2006, granting Michael full custody and granting Whitney supervised visitation with the child. Michael later filed a pleading asserting that Whitney had not complied with the order mandating supervised visitation or paid him child support. Whitney then counter-petitioned for custody. In January 2011, the court awarded custody to Michael, permitted Whitney unsupervised visitation, and ordered her to pay $84 per week in child support. Whitney argued on appeal there was no evidence that she should be ordered to pay $84 per week and requested custody of the child. To set child support amounts, trial courts refer to the State’s most recent child support chart. The chart provides the definition of income, the manner of calculation of support, and the amount of child support that a noncustodial parent must pay. Parties must also submit affidavits of financial means.

The Court of Appeals reasoned that Michael’s attorney must have used one of Whitney’s check stubs to prepare the order requiring her to pay $84 per week. The trial record contained no check stub, however, and the evidence presented did not support the calculation of a payment of $84 per week. The Court of Appeals reversed and remanded the case on this point and directed the trial court to enter an order of child support based on the evidence presented.  The Court of Appeals also upheld the trial court’s ruling that it would be in the child’s best interest to remain in the custody of Michael because Michael’s living conditions are more stable than Whitney’s and are better suited for childrearing.

Clayton v. State, 2011 Ark. App. 692, November 16, 2011. This appeal comes from the Hot Spring County Circuit Court, the Honorable Chris E. Williams presiding. Larry Clayton was convicted of residential burglary and sentenced to thirty years in prison. On appeal, he challenged the sufficiency of the trial evidence. The test to determine the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. In Arkansas, a person commits residential burglary if he enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment. Clayton argued that there was no substantial evidence to prove he entered the victim’s home with the intent to commit an offense punishable by imprisonment.

At trial, there was evidence that Clayton “gained access to the home by breaking a front-door window, turned on the light in the kitchen, opened the refrigerator, removed four bottles of wine-cooler from the refrigerator, put the bottles in a sack, and attempted to flee when police officers arrived at the crime scene.” The Court of Appeals has previously held that intent can be inferred from the fact that items in the burglarized home had been gathered up, as if to be carried off, coupled with evidence that the items had not been moved by anyone else. The resident of the home testified that she heard Clayton moving the bottles and that the bottles were in the refrigerator before he broke in; the Court of Appeals held that this evidence was sufficient to prove intent to commit theft.