FROM THE LONOKE COUNTY CIRCUIT COURT [NO. CR2014-241]
HONORABLE BARBARA ELMORE, JUDGE
Lightle, Raney, Streit & Streit, LLP, by: Jonathan R.
Streit, for appellant.
Rutledge, Att'y Gen., by: Kristen C. Green, Ass't
Att'y Gen., for appellee.
JOSEPHINE LINKER HART, Justice.
Ferguson was convicted in a Lonoke County jury trial of
second-degree domestic battery, for which she was sentenced
to five years in the Arkansas Department of Correction with
an additional one-year enhanced penalty for committing the
offense in the presence of a child. On appeal, Ferguson
argues that the circuit judge abused her discretion when she
denied her motion asking the circuit judge to recuse and when
she denied her waiver of a jury trial. We reverse and remand.
jurisdiction is pursuant to Arkansas Supreme Court Rule
1-2(e) (2015), as we granted a petition for review filed by
Ms. Ferguson after the Arkansas Court of Appeals affirmed her
conviction. Ferguson v. State, 2015 Ark.App. 722,
479 S.W.3d 25. When we grant a petition for review, we
consider the appeal as though it had been originally filed in
this court. Lagios v. Goldman, 2016 Ark. 59, 483
legally significant facts in this case are not in dispute. On
March 31, 2014, a call was placed to the Arkansas Child Abuse
Hotline, reporting that Ferguson had physically abused her
adopted children, LF and ZF. At the time, Ferguson and her
husband Chris were serving as licensed foster parents. Their
household included their biological child, AF, three adopted
children, LF, LF2, and ZF, and three foster children, BK, AH,
and AH's newborn child ZH. The children were subsequently
adjudicated dependent-neglected on July 1, 2014, at a hearing
presided over by Circuit Judge Barbara Elmore.
adjudication hearing, there was testimony from Ferguson's
two teenage foster daughters, BK and AH; Dr. Karen Farst, a
pediatrician from Arkansas Children's Hospital, who
specializes in child-abuse pediatrics; State Police Crimes
Against Children Investigator Tanya Cross; and dermatologist
Dr. Brad White, who testified that marks on LF were
consistent with a skin condition called
urticaria. At the conclusion of the hearing, Judge
Elmore made the following statements from the bench:
I find that there's dependent neglect. I do find that the
allegations have been substantiated by proof beyond a
preponderance of the evidence. The child is dependent
neglect. There was physical abuse of the child younger than
six years of age. I don't see how you can find anything
to the adjudication hearing, on June 13, 2014, the State
charged Ferguson with second-degree domestic battering. The
information alleged that Ferguson "did unlawfully,
feloniously with the purpose of causing physical injury to a
family or household member he or she knows to be twelve (12)
years of age or younger" cause physical injury to LF.
Judge Elmore was also assigned the criminal case.
September 2, 2014, Ferguson filed a motion for recusal,
arguing that the judge had presided over a juvenile case with
the "exact same" allegations in the criminal case.
The motion further noted that Judge Elmore had "rendered
a decision against [Ferguson] in the juvenile court
proceeding." Ferguson asserted that Judge Elmore should
recuse because Rule 2.11(A)(6)(d) of the Arkansas Code of
Judicial Conduct requires a judge to disqualify herself in
any proceeding in which her "impartiality might
reasonably be questioned, " including circumstances in
which the judge "previously presided as a judge over the
matter in another court." Ark. Code Jud. Conduct R. 2.11
(2015). Ferguson also invoked Rule 2.11(A)(1), which states
that a judge should recuse if "the judge has a personal
bias or prejudice concerning a party . . . or personal
knowledge of facts that are in dispute in the
proceeding." Ferguson also moved to waive her right to a
November 3, 2014 hearing, Judge Elmore entered orders on
November 26, 2014, denying the recusal motion and denying
Ferguson's jury-trial waiver. On February 3, 2015, the
circuit court entered a supplemental order regarding its
denial of Ferguson's waiver request. That order expressed
the circuit court's rationale for its earlier denial of
Ferguson's waiver. It attributed the decision to
Ferguson's stated belief that, because the circuit judge
had presided over the dependency-neglect case, the circuit
judge had "some sort of bias or prejudged disposition
toward" Ferguson. The order acknowledged Ferguson's
argument that "some of the same testimony and
evidence" from the juvenile case would be heard in the
criminal trial but found that to be irrelevant because of the
different burdens of proof in the two proceedings. In fact,
BK, AH, Farst, Cross and Dr. White,  who were the key witnesses
in the dependency-neglect case also testified in the criminal
case. Ferguson was convicted as charged.
appeal, Ferguson first argues that the circuit court abused
its discretion when it refused to recuse from the case. She
asserts that the circuit court abused its discretion for two
reasons: the circuit judge had presided over the matter in
another court and she had personal knowledge of the facts
that were in dispute. In support of her argument, Ferguson
relies on the plain wording of Rule 2.11 of the Arkansas Code
of Judicial Conduct, which states in pertinent part that
(A) A judge shall disqualify himself or herself in any
proceeding in which the judge's impartiality might
reasonably be questioned, including but not limited to the
(1) The judge has a personal bias or prejudice concerning a
party or a party's lawyer, or personal knowledge of facts
that are in dispute in the proceeding.
. . . .
(6) The judge . . .
(d) previously presided as a judge over the matter in
another court. Ferguson contends that presiding over the
dependency-neglect case constituted presiding "over
the matter in another court." She notes that the
witnesses were the same and that their testimony addressed
the same alleged conduct. Additionally, she asserts that
the "purpose" of both the dependency/neglect and
the criminal proceedings were "identical"-to
prove that she ...