by the Arkansas Court of Appeals

“ We determine whether an intelligent waiver of the right to counsel has been made in each case on the particular facts and circumstances, including the background, the experience, and the conduct of the accused. ”

“ DHS's written reasons were provided to the Bartons via a letter dated May 15, 2017, which stated that DHS did not feel it was in P.S.'s best interest to be adopted by the Bartons and that DHS preferred that she be adopted by the Bankses, who are biological relatives. There is no dispute that DHS's preference for the Bankses, as biological family members, standing alone, would constitute an unreasonable basis for withholding consent to the Bartons' adoption petition. [7] The Bankses do not argue otherwise. ”

“ B. Waiver Analysis
In Faretta v. California, 422 U.S. 806 (1975) , the United States Supreme Court held that before an accused manages his or her own defense, the accused must first "knowingly and intelligently" waive the right to counsel. Furthermore, the trial court maintains a weighty responsibility in determining whether an accused has "knowingly and intelligently" waived this right. Johnson v. Zerbst, 304 U.S. 458 (1938) ; Murdock v. State, 291 Ark. 8, 722 S.W.2d 268 (1987) . Every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. ”

“ The court may waive the ten-day period for filing a withdrawal of consent for agencies as defined by § 9-9-202 (5) , minors over ten (10) years of age who consented to the adoption, or biological parents if a stepparent is adopting.
(2) The consent shall state that the person has the right of withdrawal of consent and shall provide the address of the probate division clerk of the circuit court of the county in which the guardianship will be filed, if there is a guardianship, or where the petition for adoption will be filed, if there is no guardianship. ”

“ The circuit court is vested with a great deal of discretion in determining whether evidence is relevant and will not be reversed in deciding the admissibility of rape-shield evidence unless its ruling constitutes clear error or a manifest abuse of discretion. State v. Cossio, 2017 Ark. 297, at 5, 529 S.W.3d 620, 623.
On appeal, Herren argues that BLR's sexual conduct leading up to the act was improperly barred by the rape-shield statute because the conduct was not "prior sexual conduct" but was instead the res gestae, part and parcel, of the event as a whole. ”

“ While counsel did provide some limited assistance to Shabazz, such assistance was not so substantial as to render harmless the improper waiver of counsel.
Shabazz contends that the violation of his right to counsel should result in a new trial. The State, on the other hand, argues that Shabazz is entitled only to a new suppression hearing. We disagree.
Our supreme court acknowledged in Young v. State, 370 Ark. 147, 257 S.W.3d 870 (2007) , that as a general rule, most trial errors, including constitutional ones, do not automatically require reversal of a criminal conviction. ”

“ Using food as punishment, Complexity of care of the adoptive child and the concerns you mentioned with the child during the child maltreatment investigation, The Department found the neighbor to be credible and the adoptive child was fearful, The Department does believe that the bending back of the thumb is taking place in the home, The Department does believe that the Bartons have spanked the foster child. It is undisputed that the language of this letter neither referenced the adoption case nor mentioned the Bartons’ adoption petition or DHS’s denial of consent to that petition. ”

“ The State argues that Herren's interpretation of "prior" is too narrow and that BLR's actions leading up to the act of digital penetration have no bearing on whether she was awake and consenting at the time of the act. The State likens this case to Cossio, supra. Cossio was charged with the rape of a victim who was incapable of consent due to being physically helpless; the evidence showed that the adult victim was passed out due to consumption of alcohol and fatigue when she was raped. ”

“ Kenneth S. Hixson, Judge, dissenting. "You can’t see the forest for the trees." This is an expression typically used in an opening statement by an attorney to a jury. One source defines it as "an expression used of someone who is too involved in the details of a problem to look at the situation as a whole." In my opinion, this expression is apropos in this case.
This case can be reduced to its basics. This is a simple contest between grandparents (the Bankses) and foster parents (the Bartons) over the adoption of the grandchild. ”

“ At this point in the proceeding, Shabazz’s appointed counsel handed to him the discovery he had received from the State and the motions that had been filed by counsel on his behalf. The following colloquy between the court and Shabazz occurred:
The Court: And I’m going to let you represent yourself, but I’m going to just give you one little spiel that I tell people that want to represent themselves. You know, you haven’t been trained in the law. Do you have a college degree? ”

“ On appeal, Herren argues that this evidence was improperly excluded.
The crime of rape encompasses sexual intercourse or deviate sexual activity with a person who is incapable of consent because she is physically helpless or mentally incapacitated. ”

“ Several witnesses described the Bartons as "good" and "great" parents. Rebecca, who had herself been adopted through the foster-care system, could relate to P.S.'s experiences as a foster and adoptive child. Rebecca testified at length about the maltreatment allegations, providing reasonable explanations for the claims and denying any abuse. She testified that the Arkansas State Police investigated the matter and found it unsubstantiated. In comparison, DHS provided no evidence or testimony to support its belief that the allegations were true. ”

“ While a case-by-case approach is used to determine intelligent waiver of counsel, a specific warning of the dangers and disadvantages of self-representation—or a record showing that the defendant possessed such required knowledge from other sources—is required to establish the validity of a waiver. ”

“ While the termination case was pending, the child lived primarily with the foster parents in Russellville but was given visitation with the grandparents in Florida. In May 2017, DHS removed the child from the foster parents' home. On May 15, 2017, DHS refused the foster parents' request to consent to place custody of the child with them, citing that it was not in the best interest of the child. On the other hand, shortly before the adoption hearing, DHS consented to placing custody of the child with the grandparents. ”

“ A person is "physically helpless" under the statute if she is unconscious, physically not able to communicate, or otherwise unaware that a sexual act is happening. Ark. Code Ann. § 5-14-101 (7) .
The rape-shield statute broadly excludes evidence of prior sexual conduct. Such evidence is "not admissible by the defendant . ”

“ In an unrelated proceeding with unrelated foster children, fourteen days prior to this adoption hearing, DHS disqualified and terminated the Bartons as foster parents; not to this child, but to all foster children in the State of Arkansas. On August 11, DHS mailed a letter to the Bartons thanking them for their previous services as foster parents and informing them that their home would officially be closed as a foster home for the following reasons:
Using food as punishment. ”

“ The CASA stated that he had concerns that the Bankses would allow P.S.'s biological parents, whose rights had been terminated, to have access to the child, emphasized that P.S. should not have any contact with her biological parents, noted that Mrs. Canerday-Banks had been in recent contact with her son, and noted that her son lived near his father in Louisiana. The CASA report also raised a concern that, during the dependency-neglect case, P.S.'s father had "refused services telling the caseworker that he would have access to [P.S.] when his parents get custody." ”

“ Oh, that’s just—. That’s the only motion. Are you ready to go forward? Do you have any witnesses?
. . . .
The Court: Before we go forward, we had a long discussion earlier today, and I know I’ve seen a lot of people since then, and you made a decision—. After I questioned you, you made a decision that you think it’s in your best interest to represent yourself. Is that correct?
The Defendant: Yes, sir.
[Defense Counsel] : So—
The Court: Do you want [defense counsel] standing close in case you have questions? Do you want him to assist you?
The Defendant: If he would like—. ”

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“ We agree with the Bartons' argument and therefore grant their motion to strike DHS's brief. We recently addressed this issue in Washington County Regional Medical Center v. Northwest Physicians, LLC, 2018 Ark. App. 497. There, we declined to consider arguments raised in an appellee's brief in which the party had neither appealed nor cross-appealed but argued in favor of the appellant and sought affirmative relief from this court. We reasoned that the party did not file a notice of appeal as required by Arkansas Rule of Appellate Procedure–Civil 3 (b) (2017) and was therefore not an appellant. ”

“ Cossio, 2017 Ark. 297, at 5, 529 S.W.3d at 623.
Res gestae can include conduct of both the accused and the victim. See, e.g., Brockwell v. State, 260 Ark. 807, 815, 545 S.W.2d 60, 66 (1976) . Specifically, all the circumstances connected with a particular crime may be shown to put the jury in possession of the entire transaction. ”

“ State, 356 Ark. 345, 151 S.W.3d 770 (2004) (suppression hearing not included in the record) ; Moore v. State, 303 Ark. 1, 791 S.W.2d 698 (1990) (failure to conduct a Denno [2] hearing) ; Taffner v. State, 2018 Ark. 99, 541 S.W.3d 430 (failure to hold an in camera Ritchie [3] review of DHS file) .
We hold that an accused is entitled to relief from a conviction whenever the proceedings indicate the unfairness of trial without the help of a lawyer. See Gibson v. State, 298 Ark. 43, 764 S.W.2d 617 (1989) . That is the case here. Therefore, we reverse Shabazz's conviction and remand for retrial. ”

“ The letter, which was sent from DHS to the Bartons, states that "your home has been reevaluated and approved from 5/23/2017 through 5/23/2018 provided that you remain in compliance with DCFS foster home standards during this time period." ↑ Despite the court's multiple statements that "nobody's asked me to waive it," the DHS attorney present at the hearing never requested that the court waive the waiting period. ”