text
stringlengths 8
185k
| embeddings
sequencelengths 128
128
|
|---|---|
Rattle, J.
John I. Matthews departed this life intestate, seized in fee of a certain tract of land in Lincoln county, in this state, and left Willis G. Hilton, Ida Johnson and MattieLettish, his children and only heirs at law, him surviving.
These heirs and children were minors when their father died. During their minority they applied to the Lincoln probate court for an order to remove their disabilities as minors, so as to allow and empower them to sell and convey their interest in this tract of land. The Lincoln probate court, at its April term in 1872, granted this application, and made an order according to the prayer thereof. At the time this order was made they were, respectively, twelve, ten and seven years of age. About this time they sold and conveyed the land to Moses DeBaunne and Mort M. Mesler. After they arrived of age they brought this action against Carlton Doles to recover the possession thereof. Doles answered and claimed title and possession through DeBaunne, Mesler and plaintiffs. Plaintiffs recovered judgment for the land, and defendant appealed.
The only question in the case is, was the order of the Lincoln probate court a valid order?
Section one of the act, under which this order was made, reads as follows:
“That the court of probate in and for the several counties in this state shall have power, in its discretion, to authorize any person who is a resident of the county, and who is under twenty-one years of age, to transact business in general, or any particular business specified, in like manner and with the same effect as if such act or thing was done by a person above that age, and every act done by any person so authorized shall have the same force and effect in law and equity as if done by a person of full age; and letters testamentary or of administration or guardianship, may be granted to any such person, if otherwise entitled by law, to have and to hold such fiduciary trust with like effect as if granted to a person over twenty-one years of age.”
In the construction of all statutes the real intention of the law-giver, when accurately ascertained, should prevail over the literal sense of the terms. The intention is to be deduced from a view of the whole, and of every part oí a statute, taken and compared together, and from other statutes in pair materia. “Ii the language,” said this court in Reynolds v. Holland, 35 Ark., 59, “be plain, unambiguous and uncontrolled by other parts of the act, or other acts or laws upon the same subject, the court cannot give it a different meaning to subserve a public policy, or to maintain its constitutional validity. The question for the courts is not what would be wise, politic and just, but what did the legislature really mean to direct. This narrow circle embraces and cicumscribes the whole ambit of the court, although within that it may move very freely in catching the intention. It may disregard the literal meaning of words, when it is obvious from the act itself the use of the word has been a clerical error, or that the legislature intended it in a sense different from its common meaning.”
Mr. Blackstone, in speaking of the rules of interpretation of laws, says: “The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law.”
Again he says: “As to the effects and consequences, the rule is, that where words bear either none, or a very absurd signification, if literally understood, we mnst a little deviate from the received sense of them. Therefore the Bolognian law, mentioned by Puftendorf, which enacted ‘ that whoever drew blood in the streets should be punished with the utmost severity,’ was held after long de bate not to extend to the surgeon who opened the vein of a person that fell down in the street with a fit.
“But, lastly, the most universal and effectual way of discovering the true meaning of a law when the words are dubious, is by considering the reason and spirit of it, or the _ cause which moved the legislature to enact it. Eor when this reason ceases, the law itself ought likewise to cease with it. An instance of this is given in a case put by Cicero, or whoever was the author of the treatise inscribed y to Herenius. There was a law that those who in a storm forsook the ship should forfeit all property therein, and that the ship and lading should belong entirely to those who staid in it. In a dangerous tempest all the mariners forsook the ship except only one sick passenger, who, by reason of his disease, was unable to get out and escape. By chance the ship came safe to port. The sick man kept possession, and claimed the benefit of the law. Now, here all the learned agree that the sick man is not within the reason of the law, for the reason of making it was to give encouragement to such as should venture their lives to save the vessel; but this is a merit which he could never pretend to, who neither staid in the ship upon that account, nor contributed anything to its preservation.” 1 Blachstone’s Com., 58, 60.
1. B,a moving disabilities of infants.
It is obvious that the act authorizing the removal of disabilities of minors was only intended to apply to such minors as are capable of transacting their own business. The object of the common law in making minors incapable of binding themselves absolutely and irrevocably by contract is to protect them from improvident engagements; but inasmuch as there are minors capable of making intelligent and beneficial contracts and managing their own affairs, the legislature in its wisdom saw fit to authorize the probate and circuit courts to remove the disabili ties, of such minors. Its intention was to authorize the removal of disabilities only in those cases where the lim-. itation upon the capacity of the minor to contract worked a hardship, and the reason for the limitation does not exist. If such had not been its intention its object could and would have been more easily accomplished by an act removing the disabilities of all minors. The policy of the law is to protect all persons incapable of conducting their own affairs and estates. The statutes make it the duty of the probate court to appoint guardians to take the care, custody and management of idiots, lunatics, habitual drunkards and persons of unsound mind, who are incapable of conducting their own affairs and estates. There is no reason why an infant in like condition should be made an exception.
But it is insisted by appellant that while it is obvious that this was the intention of the legislature, the Lincoln probate court was vested with jurisdiction, and its order removing the disabilities of plaintiffs cannot be called into question in a collateral proceeding. If this be true, a probate court, while the constitution of 1868 was in force, might have removed the disabilities of an infant in his swaddling clothes and appointed him an administrator or guardian, with the control of large estates, and such orders would have been valid in all collateral proceedings until set aside in a direct proceeding, notwithstanding all the facts appeared of record. For the purpose of his contentions, appellant assumes that the probate court had jurisdiction to make such orders. Is he right ?
"We have seen that the intention of the legislature was to empower the probate court to remove the disabilities of those minors, and no others, who are capable of making-contracts and controlling their own affairs and estates; and that in construing the act in question, we must con strue it in connection with other statutes upon the same subject. Under the statutes of this state an infant under twelve years of age is incapable of committing crime; under ten he is incompetent to testify; and under fourteen is not qualified to select his own guardian. These are conclusive presumptions of law. Evidence is not admissible to remove them. Is it therefore reasonable to presume that the statutes of this state intended that a probate or circuit court should have jurisdiction to remove the disabilities of a minor under fourteen years of age, and thereby qualify him to become an executor, or administrator and guardian, when before the removal of his disabilities he was presumed to be incompetent, and was incapable of selecting his own guardian ? There is but one answer to the question. It is contrary to all reason to suppose that the intention of the act in question was to authorize any court to empower a minor under fourteen to do an act requiring a higher qualification to do than an act he is presumed, under the statute, to be incompetent to perform. Construing all the statutes on the subject together, and governed by the manifest intent of the act in question, we conclude that no court has or had the authority, under the act in question, to remove the disabilities of a minor under fourteen years of age.
The Lincoln probate court undertook to remove the ■disabilities of plaintiffs when they were, respectively, seven, ten and twelve years of age, so as to empower them to sell and convey a valuable tract of land. These facts are stated in the record, in the application made by the plaintiffs to the court. The order removing their disabilities is, therefore, void.
The judgment of the court below is affirmed. | [
-16,
77,
-36,
28,
58,
112,
10,
18,
-55,
-29,
37,
83,
-23,
-53,
17,
41,
-29,
-83,
117,
122,
-90,
-74,
7,
-77,
82,
-77,
-117,
-35,
-74,
-51,
100,
-41,
12,
32,
-54,
85,
-58,
-62,
-27,
20,
-122,
73,
56,
109,
81,
-56,
52,
47,
84,
-49,
81,
-114,
-45,
40,
29,
107,
105,
45,
-51,
-71,
80,
-72,
-81,
5,
77,
22,
-96,
71,
-102,
1,
74,
72,
-112,
81,
-120,
-8,
115,
54,
-122,
116,
3,
91,
-120,
98,
103,
-127,
45,
-17,
-88,
-104,
14,
-65,
-103,
-89,
-45,
88,
-126,
77,
-65,
-99,
112,
16,
-126,
-4,
-17,
-41,
20,
108,
-115,
-117,
22,
-127,
44,
-70,
-98,
19,
-37,
-115,
48,
113,
-50,
-30,
93,
67,
48,
-109,
-121,
-46
] |
Cockrill, O. J.
This action was begun by the appellee against the appellants before a justice of the peace to recover damages for the conversion of a one-half interest in ■ a bale of cotton. On appeal to the circuit court he recovered $27.50, the amount claimed.
It is urged that the justice had no jurisdiction of the cause of action.
Justices of the peace have jurisdiction among other causes, where the amount in controversy does not exceed $100, in all matters of damage to personal property. Art. 7, sec. 40, Const. 1874• This clause has been construed to mean all injuries which one may sustain in respect to his ownership of personal property, and includes damages for conversion. St. L., I. M. & S. Ry. v. Briggs, 47 Ark., 59.
i.j0bisdiop..version.
But it is argued that the plaintiff did not prove that he was the owner of the property. He was the mortgagee in an instrument covering the cotton which had been duly acknowledged and filed for record. His mortgagor was a share cropper whose only interest in the crop of cotton when the mortgage was executed, was the right to have a share of the cotton, when made, set apart to him as his wages or to assert a lien on the crop for their payment.
^ ^£5®^ orop’
(Mansf. Big., sec. 4449)- The bale of cotton in dispute was purchased by the appellants from the cropper’s landlord, the latter informing them at the time of purchase that one-half belonged to him and the other to the share cropper, or to his mortgagee, the appellee.
The argument is that the mortgage was void (1st), because the mortgagor had nothing to mortgage at the time the instrument was executed; and (2d), that if he had an interest in the cotton, the mortgage is invalid under the statute, because the consent of the landlord to its execution was not obtained.
1. It was recently explained and reasserted, in. Hammock v. Creekmore, ante., that a cropper on shares, with such rights as the mortgagor had here, may mortgage his contingent interest in the crop to be raised; and since the act of March 11, 1875, when there is anything in esse for the mortgage to take hold upon — that is when the cropper’s right to his share has become perfect, the legal title vests in the mortgagee {Beard, v. State, Jj.3 ib., 28]¡), and he may maintain an action for the conversion of the property covered by the mortgage. Jarrett v. McDaniel, 32 ib., 598; Meadow v. Wise, 41 ib., 285.
It was clearly proved that the cotton in question had been set apart by the landlord as the mortgagor’s, and was actually sold by him as such. The mortgagee’s rights had then attached and the appellants purchased subject to the mortgage.
2. statute upon as invalidating the mortgage, after providing that the landlord shall have a lien for certain purposes upon the laborer’s interest in the crop without the necessity of a written contract, reads as follows: “And in such cases no mortgage or conveyance of any part of the crop made by the person cultivating the land of another shall have validity unless made with the consent of the employer or owner of the land or crop, which consent must be indorsed on such mortgage or conveyance.” Mansf. Dig., sec. 1^1)52.
3. Same: Land lord’s con sent.
This provision is from the act designed to regulate the landlord and labor system. It defines certain rights of the two classes and undertakes to protect each against imposition by the other. No other end is aimed at. It cannot be said to be the intention of the act to place the ten ant under the tutelage of the landlord, or to grant to the latter any paternal power of care or control over him. The prohibition then against a conveyance or mortgage must have been intended only as a protection to the landlord and not as an absolute restraint upon alienation by the tenant or laborer. The latter has the power, notwithstanding the act, to enjoy the fruits of his labor by anticipation if he sees fit, to the same extent that the landlord has, and without consulting him. The laborer has a lien on the crop produced to protect his interest (sec. Jf.If.If.6) and he can do no act by salé or mortgage to prejudice the statutory rights of the landlord; but when their respective interests in the crop are settled by agreement, as was done in this case, and the laborer’s property specifically designated, a stranger cannot be heard to raise the objection that the landlord had not consented to the laborer’s contract of sale or mortgage. It is then a matter of no concern to the landlord and his consent is immaterial.
The appellants wholly denied the appellee’s right to any part of the property, their acts amounted to a conversion, and the action against them was properly maintained. Bertrand v. Taylor, 32 Ark, 470; Hammock v. Creekmore, sup.
Affirm. | [
-78,
110,
-40,
44,
74,
96,
42,
-102,
90,
-96,
39,
-41,
-5,
-61,
1,
37,
-28,
121,
113,
106,
21,
-77,
23,
74,
-46,
-77,
-45,
69,
-68,
109,
-28,
87,
12,
32,
66,
-43,
-26,
-94,
-63,
92,
-118,
-124,
-118,
108,
-35,
64,
48,
-5,
0,
75,
81,
-113,
-13,
40,
61,
79,
107,
40,
11,
60,
-47,
104,
-100,
13,
127,
3,
-79,
103,
-116,
33,
-6,
72,
-104,
29,
1,
-24,
123,
-74,
-126,
84,
7,
-117,
9,
102,
103,
48,
45,
111,
-8,
-120,
47,
-21,
45,
-90,
-106,
88,
67,
8,
-65,
-97,
108,
5,
70,
116,
-22,
-115,
29,
108,
7,
-49,
-108,
-13,
-83,
118,
-104,
3,
-17,
-113,
-72,
97,
-49,
-86,
93,
101,
122,
-101,
-97,
-3
] |
Cockrill, C. J.
The appellees (the plaintifis below) brought an action of replevin against the appellants to recover possession of an engine, a saw mill and a ,lot of tools, etc. A jury being waived, the court found the facts as follows :
“That plaintifis on order shipped the mill and other property to Erwin & Nisbet under a contract of sale, in which it was expressly agreed that the title should not pass from the plaintifis to the purchasers until the purchase money was fully paid-. This is shown by the contract which is admitted in evidence. That the purchase money was never paid in full is alleged in the complaint and not denied by the answer; that Erwin & Nisbet sold the mill to defendants for an adequate consideration, which was mostly paid, and that they were innocent purchasers, without notice of plaintifis’ rights, and were diligent in making inquiry as to outstanding claims, and bought in good faith ; that the value of the bqiler was $500; engine, $200; saw mill, carriage and attachments, $200; belt and fixtures, $50.”
1. Conditional Sale: Title: Right of vendor.
Judgment was entered for the plaintiff's.
The correct determination of this case depends altogether upon the construction that must be given to the contract entered into between the plaintifis and Erwin & Nisbet, from whom the appellants purchased. If that contract was, in fact, a conditional sale, the title to the property remained in the plaintifis, unless the condition was performed or waived, and Erwin & Nisbet could transfer no better title, even to an innocent purchaser, than they themselves had. This we have ruled at the present term (McIntosh v. Hill, 47 Ark. 363), and since the decision, the Supreme Court of the United States, upon an exhaustive review of the authorities, have reached a like conclusion. (Harkness v. Russell & Co., 7 Sup. Ct. Rep., 50.) If, on the other hand, the title passed by the contract, and the plaintifis have, as it is argued, reserved only a security in the nature of a mortgage, then the purchasers from their vendees took 'the property freed from this claim because under our law a mortgage is void as against strangers, unless acknowledged or proved and filed for record. The contract, as far as it is material to this question, is as follows:
“ Indianapolis, Bee. 4, 1882
■“ To C. E. Merrifield, Indianapolis, Ind.: “You are hereby authorized to fill the following order for the undersigned, and have the same ready for delivery ■at Indianapolis, Ind., on or about the 15th day of December, 1882, and ship to Rector, Clay county, Ark., one 20-horse engine on skids, with wooden axles and 4J boxes attached, duplex inspirators on engine in place of pumps, we to give you mortgage on engine arid mill, and all fixtures we get of you, for which the undersigned hereby agree to pay you the sum of $1960, as follows, notes to dhaw 8 per cent, from this date until paid:
2. Mort-g^g 0 or condition£¡°nnstruo"
“ Cash....................................... $400
Note due 15th June, 1883, for..... 500
Note due 15th Dec. 1883, for...... 500
Note due 15th June, 1884, for..... 560
Note due.................18..............
Note due.................18..............
$1960
“And it is expressly understood that a part of the consideration for the extension of time above named is that the merchandise herein mentioned shall be fully settled for ■cash or notes before such merchandise is used, and if the purchaser shall use said merchandise and refuse to make settlement as provided herein, the whole amount shall become due at once, and the purchaser shall no have right to claim any extension of time whatever.
“And it is especially understood and agreed that the title or ownership of above property does not pass from C. E. Merrifield until it is fully paid for (notes and drafts not to to be considered as ‘payments’ until actually paid), and in default of the full payment of any one payment as herein agreed, you or your agent may, without process of law, take full possession of and remove said property above mentioned.
“And it is further agreed that said machinery shall not be attached to so as to become a part of any real estate, but shall remain personal property until the debt herein secured is fully paid. And we hereby bind ourselves not to sell, trade, transfer, convey or otherwise dispose of the machinery above ordered, or any part thereof, until fully paid for, without having first obtained the consent of Ci E. Merrifield.
“ E. P. Erwin, [Seal.}
“Jo. Nisbet, [Seal.]
. “ Postoffice, Rector, Clay Co., Arkansas.
“ Order sent in by---”
Reservation of title.
If we look alone to that provision of the contract which reserves the title or ownership of the property to the vendors, it is evident that it was the intent of the parties not to make an absolute sale and purchase, but only an agreement to sell on the one hand and purchase on the other, upon the condition that the notes described were paid at maturity. The meaning is plain, and the language admits of no other construction.
Promise to give mortgage.
It is argued, however, that the previous provision looking to the execution of a mortgage by the intended purchaser is inconsistent with the plaintiff’s ownership, and’ is itself a recognition of title in Erwin & Nisbet. If a mortgage had been actually executed this would undoubtedly be true, or if the clause were itself a mortgage, the argument would be.well founded, for a contract is to be judged by its substance and not by the name that the parties may choose to give it. But all the provisions of a contract are to be construed together, so that if possible they may all harmonize.
Now,a suggestion or even a stipulation by Erwin & 'Nisbet that they would give a mortgage is not of itself necessarily a mortgage. As was said in Barnett v. Mason, 7 Ark: ii It is but another proof of the maxim that there is a difference between one’s saying he would do a thing and doing it.” A mortgage may have been regarded by the parties as an effective security, and it was doubtless their intention to leave in Erwin & Nisbet the option to allow the contract to take the form of a sale and mortgage back.
It was not necessary, however, for the plaintiff ’s security that it should be done. They had the means of security in their own hands in the ownership of the property, and clearly indicate the intention of holding it. The subsequent reservation of title by them shows that the execution of the mortgage, if one was intended to be executed at all, was a condition precedent to the vesting of title in Erwin & Nisbet. This is a reasonable construction of the contract, and evidently accomplishes the end the parties to it had in view. Clayton v. Hester, 80 N. C., 275; Vasser v. Buxton, 86 ib., 335.
3. Re-saia by purchas%T:. Titl° of his yen-
It is argued further that the intention to make an ab- . . solute sale is evidenced by the clause m the contract ° requiring Erwin & Nisbet to have permission of plaintiffs in order to sell. But we fail to appreciate the force of the argument. One holding under an agreement to purchase has an interest in the property which he may sell, and if the condition of the contract is afterwards performed, the title of his vendee will be complete. Compton v. Pratt, 105 Mass., 225; Currier v. Knapp, 117 ib.,324; Chase v. Ingalls, 122 ib., 381.
But such sub-sales may put the owner to great inconvenience in guarding and gathering together his property. A provision not to sell or remove the property is simply an attempt to prevent this inconvenience, and does not show an intent to make an absolute sale. Carter v. Kings-man, 103 Mass., 517. After the sale by Erwin & Nisbet in violation of this agreement the plaintiffs could maintain their action without demand, ib.
,4. Requirmg securiohase price
When the contract was entered into the plaintiffs took n°tes of Erwin & Nisbet for the amount agreed upon, but before doing so they required each of them to give a written assurance that he was solvent and possessed of specific property subject to execution. This fact is appealed to as evidence of the intention to treat the parties as debtors and to look to them personally for payment, and consequently to treat the property as a security only for the debt. But we think the conclusion drawn from the premises is too broad. It is true that in case of a conditional sale the absolute relation of debtor and creditor does not exist. But when the condition is broken theseller may elect to reclaim his property, or treat the transaction as a sale and bring an action for the agreed price. Bailey v. Hervey, 135 Mass., 172. In the latter event he is of course interested in the solvency of his vendee. Moreover, it is not ordinarily the part of a business man to enter into even an agreement to sell personal property to an irresponsible stranger. The property in this instance was to be carried from Indiana into Arkansas, remote from the residence of the owners, and might be converted, as it was,to the individual use of the parties entrusted with it, or might be destroyed through their fault. The only protection would then be the personal responsibility of the purchaser.
A contract containing a provision, the legal effect of which is the same as that now under consideration, was ruled to be a conditional sale in the case of Harkness v. Russell, sup.
There was a pencil memorandum, “paid by notes,” endorsed on the contract, but it is unsigned, bears no date, and it is not shown by whom it was made or how it came there. This cannot be held to overcome the positive agreement of the parties that the notes were not to be taken as payment.
The appellants have presented nothing that estops the appellees from enforcing the condition of the contract, and the judgment is affirmed. | [
-48,
-8,
-104,
-115,
88,
96,
40,
-102,
64,
-25,
39,
83,
-49,
-58,
49,
33,
-26,
89,
117,
106,
-41,
-93,
54,
35,
-46,
-77,
83,
-51,
-67,
76,
102,
86,
12,
32,
-62,
-43,
-31,
-127,
-11,
84,
-114,
5,
60,
111,
-35,
84,
52,
-70,
80,
11,
65,
-116,
-13,
46,
25,
-53,
11,
42,
107,
57,
113,
120,
-70,
-124,
95,
22,
-125,
102,
-104,
83,
-8,
44,
-112,
57,
1,
-56,
115,
52,
-58,
84,
1,
9,
-119,
102,
103,
48,
13,
-19,
-8,
24,
38,
127,
31,
-89,
17,
88,
3,
105,
-65,
-97,
120,
3,
37,
-26,
98,
-99,
-99,
108,
22,
-81,
-106,
-109,
-83,
38,
-102,
3,
-18,
3,
48,
96,
-51,
-102,
93,
7,
113,
-101,
-114,
-2
] |
Smith, J.
Henry, Woods and McReynolds borrowed from Conley $2400, giving their joint and several promissory note, payable January 1,1885. Before maturity of the note, the makers had provided money to pay it and some other debts due by them. This money was put into McReynolds’ bank as a general deposit, and was mingled with the other funds of the bank.
On January 3, 1585, Conley presented the note for payment to McReynolds. After conversation, Conley concluded to take the interest in cash, and St. Louis exchange for the principal. McReynolds accordingly paid the interest, and gave.Conley two checks on the Third National Bank of St. Louis for $1200 each. The note was surrendered to McReynolds, who marked it paid, and on the same day handed it to Henry. Conley forwarded the checks to St. Louis, but neglected to indorse them. Hearing nothing from them, and becoming uneasy, Conley went to McReynolds, on January 10th, and got the money for one of the checks, and McReynolds telegraphed stopping the payment .of it. Conley went home to Siloam Springs, where he received a letter enclosing the checks unindorsed. Not knowing which of the checks it was the payment of which had been stopped, he indorsed both and sent them on for collection. They reached St. Louis and were protested January 16th for want of funds of the drawer. Notice of non-payment reached Conley and McReynolds between that date and the 21st. On the 2Íst', McReynolds’ bank suspended payment and McReynolds is hopelessly insolvent. At the time of giving the checks the account of McReynolds with the Third National Bank of St. Louis was overdrawn $681.79. Nor did he at any time between the 3d and 10th of January have to his credit there a sum sufficient to pay both checks. Nor after he had paid the amount of one of the cheeks on the 10th, did he thereafter have enough to his credit to pay the other cheek.
Conley now brought his action against the makers of the note. The defendants pleaded payment. The case was submitted to the court, instead of a jury, upon evidence which showed the foregoing state of facts, about which, indeed, there was no dispute. The court declared the law as follows: “ Proof that a joint maker of a note giving his cheek on a bank in payment where he had no funds, *and a surrender of the note for such cheek, will not sustain a plea of payment.” And it gave judgment against all the defendants for the balance due on the note.
The taking of the note, bill or check of a debtor, or one of several joint debtors, or of a stranger for an antece-, u 7 ^ dent indebtedness, is no payment, unless it is agreed to be taken as such. It is only conditional payment, dependent on the payment of the paper. If that is dishonored, the original debt revives. Story on Promissory Notes, sec. 104; 2 Daniel on Neg. Instr., sec. 1260, et seq.; 2 Randolph on Commercial Paper, sec. 750 ; 2 Am. Lead. Cas., 263, et seq.; notes to the case of Tobey v. Barber. Such has been the settled law of England ever since the time of Lord Holt (Clark v. Mundal, 1 Salk., 124), and such is the law of all the American states, except Massachusetts, Maine, Vermont, Indiana and Louisiana. The more recent decisions of this court are in perfect harmony with this rule. Brugman v. McGuire, 32 Ark., 733 ; Akin v. Peters, 45 ib., 313; Malpas v. Lowenstein, 46 ib., 552.
• Pay-By note, b i I 1 o r obeok-
Counsel for appellants contend that checks stand on a different footing in this respect from notes and bills of exchange. It is true that a cheek is drawn on a bank or banker, and that it is payable on demand without days of grace, but it is no payment unless duly honored — only a means of getting paid. Nor do the adjudged cases recognize any such distinction. Alcott v. Rathbone, 5 Wendell, 490; Turner v. Bank of Fox Lake, 3 Keyes, 425 ; S. C., 4 Abbott’s App. Dec., 434; Heartt v. Rhodes, 66 Ill., 351; People v. Howell, 4 Johns., 296, per Kent, C. J.; McIntyre v. Kennedy, Childs & Co., 29 Pa. St., 448.
The law on this subject is thus stated by Mr. Daniel in his work on Negotiable Instruments, 3d Ed., sec. 1683: “ In respect to payment by check, a creditor may, if he pleases, accept a cheek in absolute discharge of a debt; but where a check is received by a creditor, there is no presumption that he takes it in payment; but, on the contrary, the implication is that it is only to be regarded as payment if cashed. And so strong is this implication, the check being presumptively drawn on a fund deposited to meet it, that more evidence is required to prove that a check given to take up a note is received in satisfaction and discharge than is demanded when one note is given for another.” Accordingly, we find that, even in some of those states where the acceptance of a bill or note on account of a precedent debt is presumed to be in satisfaction of it, the same presumption does not arise when a check is received. Small v. Franklin Mining Co., 99 Mass., 277; Ocean Tow Boat Co. v. Ship Ophelia, 11 La. Ann., 28.
2. Same: Surrender of note for cheek.
Nor is any agreement that »the checks shall be satisfaction implied from the surrender and cancellation of the note. The surrender under such circumstances was conditioned upon the payment of the new security. It is like the case of a creditor giving up the former evidence of his debt and executing a receipt. Muldon v. Whitlock, 1 Cowen, 290; Davis v. Allen, 3 Comst, 168; Alcott v. Rathbone, supra; Turner v. Bank of Fox Lake, supra; Jagger Iron Co. v. Walker, 76 N. Y., 521; Doebling v. Loos, 45 Mo., 150; Heartt v. Rhodes, supra.
It is further insisted that the defendants had provided a fund to meet their note at maturity, and that this imposed upon Conley the duty of protecting the interests of Henry and Woods in his dealings with McReynolds. There is no proof that Conley had any notice of this arrangement. But if he had known all the circumstances it would not have altered the legal aspects of the case. The relation between a bank and a general depositor is that of debtor and creditor. Consequently, when the money which had been raised to pay Conley’s note was put into McReynolds’ bank as an ordinary deposit, it then belonged to the bank and the bank became debtor to the depositors. Himstedt v. German Bank, 46 Ark., 537.
The delay in presentment of the checks is not important, because the bank on which they were drawn remained solvent all the time. McReynolds suffered no actual damage thereby. And the only effect upon the other two defendants of giving the checks was to suspend Conley’s right of action against them until the checks were dishonored by non-payment. 2 Daniel Neg. Instr., 1272, 1587.
Judgment affirmed. | [
52,
-8,
-96,
-34,
26,
-80,
42,
58,
-69,
98,
-76,
123,
-7,
53,
1,
101,
102,
105,
85,
105,
101,
-77,
7,
75,
-62,
-77,
-43,
-59,
-75,
-51,
-68,
93,
76,
52,
72,
-99,
70,
-62,
-63,
18,
-114,
-91,
41,
100,
-40,
-63,
52,
-93,
4,
75,
49,
30,
-86,
42,
28,
110,
76,
47,
-17,
57,
-64,
-80,
-103,
7,
119,
21,
-94,
71,
-124,
7,
-56,
62,
-104,
53,
19,
-88,
114,
-74,
-106,
86,
77,
13,
12,
102,
38,
16,
-31,
-51,
-112,
-116,
63,
-106,
-99,
-90,
112,
72,
34,
43,
-66,
-99,
54,
21,
14,
-36,
-96,
29,
25,
40,
3,
-53,
-44,
-126,
29,
62,
-114,
-117,
-1,
7,
37,
83,
-50,
2,
93,
69,
57,
-109,
-114,
-15
] |
Battle, J.
The appellant, J. A. Warwick, was indicted for, and convicted of, the crime of Sabbath breaking, committed by keeping a dram-shop open on Sunday.
Sabbath Breaking; Keeping «pen.
In the trial of the case one witness testified that appel- # . lant was the proprietor of a saloon in the city of Hot Springs; that some time in September, 1885, on Sunday, he saw appellant and other persons go into and out of a saloon through a door which was kept shut, but not locked. Another witness testified that on the same Sunday he passed through this door in going to a restaurant in the same building and in the rear of the saloon; that there was no way in going through this door to reach the restaurant except through the saloon; that the saloon and restaurant were separate rooms, but there was a door between them, which was kept open; that there was no other front or side entrance to the restaurant except the main front door, which was closed on that day, and that in passing through the saloon to the restaurant he saw men standing in the saloon, and a man walking behind the bar-counter.
The only question in the case is, was the evidence sufficient to convict?
In Seelig v. State, 43 Ark., 96, this court held that, “to commit the offense of Sabbath breaking by keeping a store open on Sunday, it is not necessary to keep it so opened as to induce customers to enter and trade ; that it is sufficient if the door is partially open, or intentionally left unlocked, so that any person may enter as readily as if left open; that if it is opened to the knocking of a stranger and he is admitted or invited in, this is a keeping open within the prohibition of the statute.”
Indictment intent.
In an indictment for keeping open-a dram-shop on Sun-ft ft not necessary to aver that it was kept open with criminal intent. The keeping it open on that day is the gist of the offense. When the fact of keeping the dram-shop open on Sunday is established, the law presumes a criminal intent, and proof of justification or excuse must come from the defendant. “ The nature and tendency of the act prohibited furnish ample reason why the legislature did not expressly require the intent tobe expressed in the indictment,” and proved as constituting a material part of the “offense.” “ The act of keeping open a grocery on Sunday,” as said by this court in Shaver v. State, 10 Ark., 263, “is not in itself, innocent or even indifferent; but it is, on the contrary, highly vicious and demoralizing in its tendency, as it amounts to a general invitation to the community to enter and indulge in the intoxicating cup, thereby shocking their sense of propriety and common decency, and bringing into utter contempt the sacred and venerable institution of the Sabbath. It is not simply the act of keeping open a grocery, but the keeping it open on Sunday that forms the head and front of the offenseand when it is alleged and proven to have been done on that day, the proof is sufficient to convict, unless justification or excuse for so doing be shown.
The evidence of guilt in this case is as strong as it was in Marre v. State, 36 Ark., 322. The only evidence of guilt in that case was, the defendant was seen standing at the front door of his saloon in the city of Little Rock, with an apron on, while at the same time parties were seen in the back room of the saloon playing billiards, the front door being open. This court held that this evidence was sufficient to sustain the verdict of guilty in that case, and that the explanation of defendant’s conduct to the effect that he had his saloon open for the purpose of airing it, was not sufficient.
The evidence in this case is sufficient to sustain the verdict of the jury. The fact that a restaurant was in the rear of his saloon was no excuse or justification for appellant keeping his saloon open on Sunday.
The judgment of the court below must be affirmed. | [
-15,
-2,
-36,
-33,
42,
96,
34,
-6,
-45,
-125,
-27,
-109,
-23,
-46,
20,
49,
-75,
79,
84,
105,
-40,
-106,
23,
1,
-14,
-13,
-37,
-123,
-80,
105,
-27,
117,
28,
48,
106,
125,
70,
-56,
-63,
94,
-122,
-127,
-69,
104,
-46,
-48,
52,
43,
84,
14,
97,
119,
-29,
42,
92,
-57,
105,
108,
79,
47,
112,
121,
-112,
-115,
77,
7,
-93,
46,
-87,
19,
-56,
60,
-100,
17,
15,
-8,
115,
-76,
-120,
116,
77,
-101,
0,
98,
98,
34,
41,
-21,
-96,
-123,
31,
35,
-99,
-121,
-15,
73,
67,
-116,
-65,
-99,
50,
16,
14,
102,
96,
-47,
25,
104,
20,
-61,
-74,
-89,
-115,
56,
-76,
-91,
-55,
39,
48,
49,
-49,
-81,
124,
85,
80,
-101,
-114,
-43
] |
Cockrill, 0. J.
This action was brought by the appel-1. lee against the railroad company to recover damages for an injury to his mule, caused by one of appellant’s moving trains. The plaintiff relied upon the statutory presumption of negligence, and the company undertook to overcome the presumption by the evidence of the train hands, to the effect that everything that could be done to prevent the accident, was done. There was, however, evidence tending to show that outside cf the ditch, at the foot of the embankment where the mule was killed, there was a clump of bushes on the company’s right of way, behind which the animal was standing as the engine approached, and it was hid thereby from the trainmen’s view; that as the train approached, the mule rushed suddenly out of the bushes and upon the track, where it was unavoidably struck by the engine and killed. Upon this branch of the case the court charged the jury as follows:
Rail-Duty t<> stock,
“The railroad company being assumed to be the owners and to have control of the right of way, would be held to ordinary care and diligence in keeping the right of way in such condition that its officers and servants, engineers and firemen could have a free and unobstructed view of the right of way from the locomotive. Now, if you find that this mule was killed without fault on the part of the company or its servants, and they used every possible means to avoid the calamity, but it happened in spite of everything that could be done, then you will find for the de fiendant. This must be shown by a preponderance of proof. Otherwise you will find for the plaintiff; and it is the duty of the company to keep their right of way in such a condition that its employes and agents could have a proper view of it; such as is necessary for the safe operation of its trains. In this case, if you find that the ■clump of bushes was outside of the right of way, you need not consider that any further. But if it is inside th¿ right of way, then you will look to see if it contributed to the accident; and, if so, then you will entertain it. But if it did not contribute, then you will not entertain it.”
The jury were thus left at liberty to find that it was negligence which would authorize a recovery, for the company to permit bushes to grow upon its right of way, aDd they returned a verdict for the appellee.
It may be that the charge announces the rule that should govern when the relation of the company to its passengers or the owner of live stock to which it has assumed the obligation of a common carrier, is considered; or when its duty to one who is crossing its track upon a highway and is prevented by the undergrowth upon the right of way from seeing an approaching train, is involved, as was the case of Dimick v. Railroad, 80 Ill., 338. But the question is, what whs its duty to the plaintiff in this case ? The first requisite to establish negligence, is to show the existence of a duty due to the party aggrieved, and then a violation or neglect to perform that duty. Cooley Torts, pp. 659-60. The railroad’s obligation as a carrier, or its duty to a person rightfully upon its track, are not coincident with the negative duty not to injure, unneccessarily, stock that wanders upon its right of way and track. -It is held to a rigid observance of its public duties, but as to stock straying upon its right of way, its obligation is not different from that of other owners or occupants of real estate. P., Ft. W. & C. Ry. v. Bingham, 29 Ohio St., 364. The statute has placed no obligation upon the railroad in that respect, and the rights and liabilities of the company and stock owner are governed by the common law. The company is not required to fence out the stock, and the stock owner enjoys the passive license of free pasturage upon its open premises as upon those of natural persons, without being held to accountability as a trespasser. L. R. & Ft. S. Ry. v. Finley, 37 Ark., 562. The technical wrong that the land owner sutlers by the entry of another’s stock is regarded as too slight to engage the attention of the law is damnum absque injuria. But the privilege of entry and free pasturage is not a right which can be demanded and enforced — it is only an immunity from suit or punishment, and the company or other land owner is under no obligation to expend money or labor in preparing the land for a convenient or a safe enjoyment of it. Ill. Cent. Ry. v. Carragher, 47 Ill., 333; Hughes v. Han. & St. Jo. Ry., 66 Mo., 325; P. & B. I. Ry. v. McCanahan, 74 Ill., 435; P., Ft. W. & C. Ry. v. Bingham, sup.
One who sutlers his stock to go at large, takes upon himself the ordinary risks incident to it. He takes the permissive pasturage -with its accompanying perils Knight v. Abert, 6 Penn. St, 472. To him the land owner owes no duty prior to the entry of his stock upon the premises, unless it be to refrain from unnecessarily attracting or drawing them into a place of danger, as in Jones and Norris v. Nichols, 46 Ark., 207; Crafton v. Ry., 55 Mo., 580; Page v. N. C. Ry., 71 N. C., 222, and after they are upon the premises he owes only the negative duty of avoiding any injury to them which the exercise of ordinary care at that time would prevent.
The language of the court in the L. R. & Ft. S. Ry. v. Henson, 39 Ark., 413, 419, that a railroad company owes no duty to the owner of stock which has strayed upon its track, except to use ordinary or reasonable care at the time to avoid injury to it; and in the case of the same appellant v. Holland, in the 40 ib., 336, that “ ordinary care in the management of their trains in the measure of vigilance which the law exacts of railroads in their relations to the owners of such animals,” is strictly applicable to this case. This measure of vigilance does not require a lookout over the entire breadth of the right of way, and an apprehension of danger whenever an animal is discovered upon it. Railroad v. Rudmond, 11 Lea, 205, 211 ; Edson v. Cent. Ry., 40 Iowa, 47; P., P. & J. Ry. v. Champ., 75 Ill., 577; Railroad v. Holland, sup. How then can it be said that the company owes him the duty of keeping the right of way in such condition as to afford its employes a view of it ?
The charge was erroneous, and the judgment is reversed, and the cause will be remanded for a new trial. | [
-16,
126,
-100,
-113,
10,
104,
40,
26,
81,
-31,
37,
83,
-115,
-117,
-127,
55,
-25,
-67,
81,
43,
116,
-93,
71,
-94,
-110,
-41,
113,
-123,
19,
72,
98,
87,
13,
48,
-54,
85,
103,
72,
-59,
88,
-114,
45,
-113,
-21,
57,
-72,
48,
123,
20,
79,
49,
-97,
-21,
42,
24,
-41,
41,
62,
107,
45,
-32,
121,
-86,
5,
55,
2,
-95,
38,
-67,
35,
-56,
59,
-48,
17,
17,
-8,
115,
-92,
-111,
-44,
33,
-71,
8,
-30,
102,
33,
61,
111,
-114,
-120,
110,
-68,
15,
-121,
52,
24,
67,
57,
-106,
-43,
18,
80,
7,
110,
-4,
-59,
93,
40,
1,
-49,
-76,
-46,
-17,
36,
-106,
39,
-53,
-123,
50,
117,
-52,
-86,
92,
69,
118,
-101,
-113,
-33
] |
Smith, J.
Lovejoy recovered judgment against the telegraph company for the penalty of $100, given by section 6419, of Mansfield’s Digest, for non-delivery of a message. It is now objected that the justice of 'the peace, before whom the action was begun, had no jurisdiction of the subject matter.
The civil jurisdiction of justices is confined to three classes of cases : Actions arising on contract, actions of replevin, and actions for injuries to personal property. (Const. 1874> art. 7, see. 40.) Unless, therefore, this is an action ex contractu, the objection must be sustained. Now, a relation of contract does exist beteween the sender of a. message and the telegraph company. But the action to recover the statutory penalty does not arise on the contract to transmit, but on the statute which imposes the penalty for neglect of the duty which the company owes-to the public. This point was determined in Bagley v. Shoppach, 43 Ark., 375, which was an action against an officer to enforce a forfeiture for exacting excessive fees.
Ve are aware that in Katsenstein v. R.R. Co.,84 N.C.,688, the Supreme Court of North Carolina reached an opposite conclusion. In that state the jurisdiction of justices of' the peace in civil cases is limited to actions upon contracts. But it was held that an action to recover a penalty under a statute was an action upon a contract. The court seems to have been led to this conclusion by the consideration that, under the old system of pleadings, debt was the appropriate form of action to recover a penalty, and that debt was classified as an action ex contractu. But debt was not necessarily founded upon contract. It lay where-ever the sum demanded was certain, without regard to the manner in which the obligation was incurred or is evidenced, as, for instance, on the judgment of a court of' record. Hence, debt for a statutory penalty, while it was in form ex contractu, was in reality founded upon a tort. Chaffee v. United States, 18 Wall., 538; Stockwell v. United States, 13 ib., 542.
In L. R. & Ft. S. Tel. Co. v. Davis, 41 Ark., 79, a judg ment similar to the one we are now considering was affirmed , but the question of jurisdiction was not raised, and escaped the attention of the court.
The judgment is vacated and the cause dismissed. | [
-80,
120,
-40,
62,
-118,
96,
58,
-110,
-15,
-30,
-89,
119,
-115,
67,
1,
99,
-29,
121,
112,
122,
85,
-73,
39,
3,
-14,
-41,
-45,
93,
-78,
-51,
-18,
-44,
76,
32,
-62,
-35,
103,
74,
65,
94,
-50,
-120,
-102,
109,
-7,
0,
48,
59,
18,
75,
81,
-49,
-21,
46,
25,
-41,
-88,
40,
105,
-75,
-64,
-79,
-100,
-51,
127,
6,
-127,
55,
-100,
3,
-52,
12,
-120,
57,
9,
-24,
113,
-90,
6,
84,
45,
-119,
-128,
98,
98,
16,
-59,
123,
-104,
-103,
46,
-6,
-107,
-90,
-107,
88,
11,
13,
-106,
-99,
94,
16,
-121,
118,
-14,
29,
-105,
108,
11,
-49,
-42,
-94,
-17,
118,
-42,
7,
-25,
34,
48,
84,
-52,
-22,
93,
99,
122,
-109,
-97,
-35
] |
Smith, J.
These are appeals from convictions for misdemeanors, in which the transcripts were filed out of time. In the first mentioned ease the judgment was rendered March 13,1886, and a motion for new trial was denied on the 18th of the same month. The transcript was lodged here May 18th, and the attorney-general was moved to dismiss the appeal. In response to this motion the appellants have filed an affidavit to the effect that the transcript was delivered into the hands of their attorneys on the 6th of May; that it was forwarded by mail the next day to the clerk of this court and reached him in due time, but was discovered, upon inspection, not to be authenticated by the seal of the circuit court, and that the delay in filing the same was caused by the necessity of remedying this deficiency.
In the other case, also, an affidavit of due diligence has been made, which the attorney-general admits to be sufficient, and he consents that the transcript may be filed, provided he has any power or right to waive the time of filing.
These appeals were granted by the court below upon the express condition, upon which alone an appeal can be granted in a prosecution for a misdemeanor, namely: that the record should be lodged in this court within sixty days after the judgment. Mansf. Dig., sec. 21/.33.
In Silverburg v. State, 30 Ark., 39, this court refused to take jurisdiction of an appeal under similar circumstances, nothwithstanding an agreement of the prosecuting attorney who tried the case to extend the time. And it was there said that the court knew of no authority which the prosecuting attorney possessed to dispense with the requirement of the statute. But the two cases which are here presented of waiver by the attorney-general and of prevention by supposed unavoidable casualties, were reserved for future consideration.
Our Criminal Code of Procedure was borrowed from Kentucky; and it is the settled construction of this provision in that state that the appellate court will not take cognizance of an appeal where the transcript is filed out of time. Commonwealth v. Adams, 16 B. Monroe, 338; Commonwealth v. McCready, 2 Metc., 376; Wood v. Commonwealth, 11 Bush., 220; Stratton v. Com., 1 S. W. Rep., 83; Metcalf v. Com., ib., 878. We remark, however, that we see no good reason for the distinction taken in Louisville Chemical Works v. Commonwealth, 8 Bush., 179, that the computation of time is to be made from the overruling of a motion for a new trial. The statute says from the rendition of the judgment.
In Perrin, ex parte, 41 Ark., 195, the validity of a judgment rendered against a prosecutor in a misdemeanor case and his sureties on the appeal bond, upon an appeal from a justice of the peace to the circuit court, was questioned. Section 21}.31‡. of Mansfield’s Digest forbids the taking of such an appeal after sixty days from the time of judgment ren dered. In that case the judgment was rendered May 2d; the appeal was taken May 11th; but the transcript and original papers were not filed until July 8d. And it was held that no motion ou the part of the state to dismiss the appeal having been made, but the parties having gone to trial on the merits, the circuit court was not deprived of jurisdiction to try the case. But the language of the two statutes is not identical. The taking of the appeal may refer, in the one case, to the prayer for an appeal and the execution of an appeal bond, if the appellant desires to supersede the judgment before the justice of the peace, though it will be the safer course for a defendant desiring to appeal from such a judgment to see to it that the transcript of the docket entries and the papers in the case are transmitted to the clerk before the expiration of the sixty days.
Section 1871 of Mansfield’s Digest gives this court authority in civil cases to extend the time for filing a copy of the record upon cause shown. No such authority is conferred in misdemeanor cases; and the omission is significant. The right of appeal must be exercised under such restrictions as the legislature may see proper to impose. Constitution of 187f, art. 7, sec. If,.
A requirement that the transcript shall be lodged here within sixty days is not unreasonable. And unless the condition be complied with, we will not take cognizance of the appeal, but the party aggrieved will be driven to his writ of error; for, otherwise, our jurisdiction to entertain appeals would be regulated by our discretion, and not by the provisions of law in this behalf.
The appeals are dismissed. | [
-76,
-24,
-3,
-97,
-86,
-32,
34,
-98,
66,
-61,
-26,
83,
-89,
-58,
20,
123,
-13,
63,
117,
107,
-36,
-73,
55,
67,
-30,
-13,
-14,
86,
-1,
111,
-28,
-78,
76,
116,
66,
85,
102,
-56,
-127,
90,
-118,
7,
-71,
-51,
-16,
72,
48,
40,
18,
15,
49,
94,
-30,
46,
28,
71,
105,
41,
-53,
-71,
-56,
-15,
-109,
13,
95,
20,
-79,
-42,
-102,
-125,
72,
10,
-72,
57,
2,
124,
48,
-90,
-122,
-12,
111,
25,
40,
98,
98,
-127,
-19,
-25,
-88,
-118,
46,
54,
-97,
-90,
-111,
73,
74,
-20,
-66,
-103,
124,
16,
4,
-6,
-22,
-59,
21,
104,
-128,
-49,
-80,
-105,
-113,
112,
-114,
75,
-21,
-94,
80,
113,
-60,
103,
92,
103,
49,
-101,
-122,
-124
] |
Smith, J.
Baker & Carico mortgaged the same growing crop of cotton, first to Halliday Brothers, and afterwards to Clapp Brothers & Co. The acknowledgment of the first mortgage was defective, the word “consideration” being omitted in the officer’s certificate. But the second mortgage contained this clause of reference: “And we (Baker ,& Carico) do further agree, that, whereas, on the 21st day of June, 1880, we executed a mortgage to Messrs. Halliday Brothers, of Cairo, Illinois, on the eighteen acres of cotton then being grown by us on the Leland plantation, in Chicot county, being the same eighteen acres heretofore conveyed to the said Clapp Brothers & Company, to secure to the said Halliday Brothers the payment of three hundred and fifteen dollars and fourteen cents, on the 10th day of December, 1880, now, the said Clapp Brothers & Company are hereby directed to charge to our account the said sum of $315.14, and out of the first moneys which may be passed to our credit with them, from any source whatever, to set aside said sum of $315.14, as an indemnity to them against said mortgage.”
i. Mort-
Clapp Brothers & Company brought replevin for the cotton after it had been gathered. Halliday Brothers intervened and claimed priority. The cause was transferred to equity without objection. There an amended interplea was filed, in which it was alleged that the plaintiffs had already received from Baker & Carico moneys, far in excess of the demand of the intervenors, and it was therefore sought to hold the plaintiffs personally liable. The plaintiffs interposed a demurrer to the interplea, which was overruled, and,as they declined to plead further, judg ment was given against them for the principal and interest of the debt due Halliday Brothers. It was further decreed that the net proceeds of the cotton, amounting to $240.60, be paid over to Halliday Brothers, and credited on the judgment. Clapp Brothers & Company have appealed.
By accepting a mortgage which recited the first mortgage, and provided for its payment, the plaintiffs had estopped themselves to deny the existence of that mortgage and the validity of its lien. Jones on Chattel Mortgages, 2d Ed., sec. 488.
Liability of j u n ior mortgagee,
Whether the plaintiffs are personally liable for the debt due Halliday Brothers depends on the answer to be given to this question: Have they expressly assumed to pay it, or have they merely taken their mortgage subject to the prior incumbrance? Theirs was not an absolute pnrchase of the property in which the amount of the incumbrance was retained out of the price to be paid, but a mere security, in which they reserved the privilege of appropriating out of any funds of the debtors that might come to their hands, a sufficient sum to pay off the elder mortgage, and of crediting themselves, in their account with these debtors, with the sum so appropriated.
The purpose of the clause was indemnity to Clapp Brothers & Co., in case they should pay off an existing incumbrance, and not to impose an obligation for the benefit of Halliday Brothers, or for the relief of Baker & Carico.
The decree will be modified so as to confine the relief to the value of the cotton in controversy. | [
-12,
68,
-68,
-17,
10,
-28,
40,
-70,
-38,
64,
-89,
87,
-7,
103,
16,
61,
-28,
93,
81,
-21,
-124,
-13,
55,
40,
-62,
-13,
-47,
-41,
-67,
-51,
101,
-43,
76,
60,
-62,
-111,
-30,
-96,
-51,
28,
-50,
-123,
-71,
-20,
-99,
2,
48,
-21,
20,
72,
101,
-114,
-13,
36,
27,
107,
77,
47,
-3,
41,
-16,
-16,
-104,
-114,
127,
23,
-79,
100,
-104,
67,
-54,
30,
-112,
53,
17,
-24,
90,
-74,
-58,
84,
7,
9,
9,
110,
102,
0,
-63,
-17,
64,
-104,
52,
-1,
31,
6,
-122,
76,
10,
75,
-66,
-97,
-58,
0,
-90,
124,
-17,
-99,
21,
44,
17,
-50,
-44,
-109,
-115,
118,
-100,
3,
-18,
15,
-76,
97,
-49,
-78,
93,
71,
61,
-69,
-121,
-74
] |
Smith, J.
The object of this bill was to enjoin the execution of a judgment which was alleged to be void for want of notice.
Erom the bill, answer and exhibits, it appeared that one Richardson, having been found guilty of a criminal offense by a justice of the peace, had taken an appeal, giving a supersedeas bond with plaintiffs as his sureties; that he was again convicted in the circuit court and judgment rendered against him and his sureties for a fine of $200 and costs, but by some clerical misprision, the judgment was in fact entered against Richardson alone; that at the next term the court, without any notice to the parties to be affected, had undertaken by a nunc pro tunc entry to amend its record to show a judgment against the sureties as well as Richardson, and for satisfaction of such judgment, an execution had been issued and placed in the hands of Duprey, the sheriff of the county, under which the property of the plaintiffs had been seized.
At the hearing the circuit court dismissed the bill.
In appeals from justices of the peace in criminal causes, where the judgment has been superseded, sec. 8435 of Mansf. Dig. authorizes the rendition of judgment, in case ■of conviction, against the principal and sureties in the bond without further notice. According to the cases of Rogers v. Brooks, 31 Ark., 194, and Freeman v. Mears, 35 ib., 278, the judgment against the sureties might be entered at a subsequent term without notice to them. If those cases are correct, the decree dismissing the bill is •obviously correct. If, on the other hand, it be conceded that those cases were wrongly decided, sec. 3910 of Mansf. Dig., requiring proceedings to correct misprisions of the clerk to be on reasonable notice to the adverse party, and sec. 5801, declaring all judgments rendered without notice to be absolutely void, the decree is still correct. Eor the party aggrieved by such a judgment has an ample remedy at law by appeal, or by certiorari with a temporary restraining order (Mans/. Dig., sec. 1369); or by an application to the court which rendered the judgment to recall and quash the execution. If the court was not in session, the judge in vacation could stay the execution of the process until the court met. Mansf. Dig., sec.. 2988 et seq.; Constitution of 1874, art. 7, sec. 14; King v. Clay, 34 Ark., 291; Stillwell v. Oliver, 35 ib., 184; 1 High on Injunctions, 2 Ed., secs. 228, 231.
We do not mean to impugn the authority of Ryan v. Boyd, 33 Ark., 778. In that case the execution was levied on real estate, and the title thereto was liable to be clouded unless the sale was restrained. So there might be instances where a court of equity would be justified in interfering to prevent the sale of chattels, as, for example, family pictures, which have a peculiar value far above the market price; or slaves, when the institution of slavery existed. But ordinarily the judgment defendant has an adequate legal remedy, and there should be some other element of equity besides the allegation that a judgment is void, to call for the interposition of the Chancellor.
Decree affirmed. | [
-14,
-28,
-108,
-84,
106,
-32,
-126,
-98,
67,
-94,
-79,
-46,
-83,
66,
0,
115,
-25,
107,
85,
105,
76,
-73,
109,
99,
-13,
-109,
-41,
85,
-79,
-17,
-26,
87,
76,
48,
-30,
-47,
103,
-54,
-59,
-44,
-118,
-93,
57,
-27,
-31,
8,
116,
63,
30,
-121,
65,
31,
-29,
42,
24,
-62,
105,
40,
-38,
-67,
-48,
-6,
-97,
-115,
95,
20,
-77,
-121,
12,
7,
82,
46,
-100,
17,
1,
-8,
113,
-122,
2,
86,
13,
11,
40,
102,
98,
-127,
69,
111,
-12,
-120,
54,
-2,
-115,
-121,
-111,
89,
75,
1,
-74,
-35,
125,
54,
-121,
110,
-20,
-123,
93,
46,
25,
-33,
-108,
-77,
-117,
61,
-124,
63,
-50,
-94,
48,
113,
-58,
-14,
94,
103,
83,
27,
-57,
-100
] |
Cockrill, Q. J.
This is an action under the statute against a collector for demanding and collecting an illegal fee. (Bagley v. Skoppach, 43 Ark., 375.) The question is whether so much of section 4, of the act of March 8, 1879, as fixes the collector’s fee at .one per cent, of the amount paid for a liquor license, was repealed by section 156 of the revenue act of 1883. The provision of the first act was carried forward into Mansfield’s Digest, as section 4510; the other provision that is supposed to be inconsistent with it, appears as section 5797. Section 4510 has been amended and re enacted, allowing the collector a commission of two per cent, upon the amount paid, (see Acts 1885, p. 88), thus fixing the law with certainty for all cases arising since its passage. It is conceded that this controversy arose under, and that the rights of the parties were fixed by, the law as it stood prior to the amendment*
There can be but one construction of the meaning of the act of 1879, with reference to the collector’s commissions. He was to receive one per cent, of the amount of the liquor license. No other license is referred to in the act. The liquor license is not mentioned in terms in section 156 of the act of 1883. It refers generally to licenses which the clerk signs in blank and delivers to the collector, to be by him granted as a matter of right, to any applicant who pays the license tax and fees. But a liquor license is not in that class. The county court grants or refuses that license, and it does not go as a matter of course. Levy, ex parte, I¡J3 Ark., 1$-
“Now,” as was said in Blackwell v. State, 45 Ark., 90, “the revenue act of 1883 does not expressly repeal any provision of the license law of 1879” — the same acts now under consideration. “Nor do the two acts cover the same field of legislation ; one being directed to the general subject of raising revenues, and the other to the particular subject of regulating the sale of intoxicating liquors. So that if there is any repeal in this ease, it must be on account of an irreconcilable conflict between their several provisions.” (See, too, Brew County v. Bennett,43 Ark., 364.) But there is no such plain repugnance between the two provisions, that one must yield and give place to the other. Both may stand by construing the two to refer to different classes of licenses, as indicated above, and this, we think, was the intention of the legislature.
The judgment of the JDesha circuit court must therefore be reversed, and the cause remanded for a new trial. | [
-78,
-21,
-36,
126,
-22,
-32,
2,
-78,
83,
-13,
-89,
83,
105,
66,
17,
35,
-13,
121,
81,
104,
-92,
-90,
7,
96,
-126,
-5,
-47,
-41,
-79,
77,
100,
-28,
14,
60,
-54,
-3,
101,
-62,
-127,
-38,
2,
40,
-117,
-63,
-7,
65,
48,
105,
19,
-117,
21,
15,
-93,
44,
24,
-57,
47,
44,
-103,
41,
113,
-80,
-70,
-99,
127,
2,
1,
119,
9,
-123,
-56,
42,
-72,
17,
1,
-8,
115,
-90,
6,
84,
13,
-99,
-87,
102,
102,
97,
37,
-17,
-92,
-84,
46,
-117,
-99,
-90,
-44,
88,
3,
13,
-74,
-43,
116,
-112,
7,
-10,
-32,
-43,
-99,
62,
4,
-114,
-98,
-77,
-83,
108,
-120,
3,
-1,
-25,
48,
117,
-49,
-2,
93,
70,
126,
27,
-122,
76
] |
Cockuill, C. J.
Ballentine was indicted for permitting gaining in his “ dram-shop or grocery.” It is argued that the use of the words “dram shop” and “grocery,” accompanied by the disjunctive “or,” renders the indictment uncertain. The word “ grocery ” does not appear in the statute which defines the offense. [Mans. Dig., sec. 1856) If it is intended as a synonym for “ dram-shop” it is harmless. If it was used in a different sense it is surplusage merely, and should be disregarded, the real offense being the permitting of gaming in the dram-shop.
1. Indictment for gaming in dram shop.
2, Criminal Practice: Errors cured by co urt.
II. The court instructed the jury that the maximum punishment that could be meted out to the defendant, if he was guilty, was a fine of $250 and imprisonment for not exceeding twelve months, and refused to read to them that portion of the statute which works a forfeiture of the dram-shop license in case of conviction. A fine of $50 in addition to the forfeiture of the license is, in fact, the maximum punishment for this offense. (/&., 1859 ) The jury assessed the fine at $60. The court remitted $10 of the amount, and entered judgment for the maximum fine, $50.
u3r,eF°|fej|; oenae-
This was not reversible error. [1] The statute authorizes the remitter in such cases. (Mans. Dig., sec. 8309.) [2] The instruction of the court as to the maximum punishment was erroneous, but as the fine imposed is no greater than that authorized by the statute, the defendant was not prejudiced by it. (Dudney v. State, 22 Ark., 251.) [3] The forfeiture of the license is a consequence of conviction. It is not a part of the penalty to be assessed by the jury. They have no discretion about it, and it was not error in the court to refuse to charge them in regard to it.
4. same: Partnera-
III. The license that was declared forfeited by the judgment of the court bad been issued, not to tbe defendant himself, but to one Thatcher. The testimony tended to show that the defendant was the real party in interest and the active proprietor of the dram-shop, and the verdict of the jury shows that they took that view of the matter The law deals with realities, and its administration is not deterred by shams and makeshifts. When the proof showed that Ballentine was the guilty dram-shop keeper, whether keeping for himself alone or in copartnership with Thatcher, it was proper to declare a forfeiture of the the license under which he operated, and it mattered notin whose name it was written. (See Brockway v. State, 36 Ark., 629.) As to the effect of this judgment on Thatcher’s rights under the license, the case will be determined when it arises.
5, bui of exoeptloDa
IV. It is argued further that it is not shown by proof that the particular game charged in the indictment was played in the house. The answer to this is that the bill of exceptions purports to set forth the effect of the testimony without giving the details of the evidence. The narrative, in one instance, runs thus: “That Frank Blair, who ran the games in the saloon building, stated that he obtained permission ” from Ballentine, etc. This is in'the statement of the substance of the proof for the prosecution. The presumption is that thegames referred to include the games described in the indictment.
But when the bill of exceptions brings the substance merely of the evidence upon the record, it is looked to by this court only to explain the bearing of the rulings or instructions that are challenged. "When a defect of proof is the ground of exception, all the evidence in anywise connected with the supposed defect must be set out. (See Rule 18 of this court, 44 Ark., p. IS.) Doubtless if Blair’s testimony had been set forth in full, it would have showed that the game described in the indictment was one of the games played. In any event it devolved upon the appellant to show error affirmatively, or the judgment stands.
There was abundance of other evidence from which the jury could infer the defendant’s guilty knowledge of the gaming.
There is no error shown by the record, and the judgment is affirmed. | [
-78,
-3,
-36,
-67,
106,
32,
42,
-102,
74,
-120,
39,
19,
-21,
-41,
4,
51,
-9,
-33,
84,
122,
-12,
-77,
39,
66,
-10,
-77,
-101,
-41,
-79,
-51,
-26,
-44,
14,
-78,
-30,
117,
103,
-120,
-15,
92,
2,
33,
-88,
112,
107,
12,
52,
36,
5,
14,
97,
-97,
-93,
42,
26,
-58,
41,
40,
75,
120,
-23,
-24,
-77,
-115,
107,
23,
-94,
54,
-67,
67,
-40,
12,
28,
59,
0,
-24,
123,
-108,
-126,
84,
47,
-117,
-123,
106,
99,
-96,
1,
-49,
-104,
-115,
54,
-85,
-99,
-121,
-112,
65,
99,
44,
-97,
-35,
118,
22,
-114,
-12,
-15,
-108,
59,
108,
19,
-41,
60,
-77,
-115,
-12,
-116,
53,
-37,
-73,
48,
5,
-49,
-82,
92,
29,
116,
-117,
-116,
-43
] |
Smith, J.
The Donaldson Lumber Company was a cor- ' ■ . Poratlon °* -f°wa) engaged in the manufacture of lumber in this state. Putnam was its secretary, treasurer and general business manager, besides being one of its directors and the owner of nearly one-third of its stock. One Watson, a laborer employed by the company, was dangerously wounded, not, however, in the course of his employment, but in a private brawl. Thereupon Putnam sent the following telegram :
1. Agent’s personal contraoyt°n
“Donaldson, Ark., 10-7-1883.
“To Dr. Dale, Arkadelphia:
“ Come here immediately by quickest means; man shot in breast. [Signed] Donaldson Lumber Co.” .
The doctor responded to this by going in person to Donaldson, and giving to the wounded man such treatment as was needed. The visit was repeated, and then, by advice of his friends and with the encouragement of Putnam, the patient was removed to Arkadelphia for better treatment. He was attended daily by the doctor and his partner in business for the space of six weeks. The bill amounted to $146, and it was charged to the lumber company. At the end of the year payment was demanded of Putnam, as the agent and representative of the company.
He denied all liability in the premises, but offered to pay, by way of compromise, $10, the price of the first visit. This proposition was declined and the physicians brought this action against the company and Putnam to recover compensation for their professional services.
The company denies that Putnam had any authority, express or implied, to bind it to pay for such services. Putnam also denied his individual liability, although he admitted he sent the message to the doctor, and that he exceeded his authority in signing the name of the corporation. His excuse for this act was, that he was personally unknown to the physician and he was afraid he would not come, if he summoned him in his own name.
A jury was waived and the trial was had-before the court, which found that Putnam was acting in this matter outside of the apparent, as well as real, scope of his authority. It therefore gave judgment in favor of the lumber company. And its finding is, in that behalf, approved. But it further found that Putnam, in sending the telegram, intended to make himself liable for only one visit to Watson, and that the proof fails to establish a known and general usage and custom, that when a physician is called in he is expected to attend the patient through that particular illness. He therefore declared, as a matter of law, that Put nam was liable for one visit and no more; and gave judgment accordingly. The plaintiffs have appealed.
The facts of the case are not substantially in controversy. There is no doubt that Dr. Dale went to Donaldson and took charge of Watson’s case, in reliance upon the telegram; and that he rendered the services in the expectation that the lumber company would pay for them; and that the sole reason why he so believed was the reception of the telegram.
The company, as we have seen, was not responsible; but Putnam was, upon an implied warranty of his authority. “If the agent exceed his authority, so that his principal is not bound, be will himself be liable for the damage thus occasioned to the other contracting party, although he may have been innocent of any intention to defraud.” Smith’s Mercantile Law, 3d Am. Ed., 213.
.2. Calling bun¿tyLfor visUs?uent
The only question, then is, as to the extent of Putnam’s ^a^'kty. He testified that he thought it was impossible f°,r Watson to live long, and that his only motive in sending the dispatch was to gratify the wish of a dying man. He also directed Watson’s friends, in case Dr. Dale could^ not come, to send a dispatch for a certain physician at Malvern, and he would be responsible and pay the expenses.
The plaintiffs and another practitioner of medicine who was disinterested, stated that it was understood, by the profession, when a medical man was called to the bedside of a patient, he was employed to attend him until the case terminated by death or recovery, unless the medical man was himself discharged sooner.
And the finding of the court that such was not the custom of the country was opposed to all the testimony there was on this point.
But we apprehend this is a question of law rather than of proof. Ballou v. Prescott, 64. Me., 305, is an instructive case on this subject. That was a case against a surgeon for malpractice in treating an injury to the plaintiff’s leg; the alleged negligence consisting in quitting the case while the patient still needed attention. The court affirmed a verdict of $450 against the defendant. The trial judge had instructed the jury as follows . “Here I understand the surgeon was called in the usual way; nothing said about the time during which he was to attend, and he went in obedience to that call. If nothing more were said or done the law would require him to give such attention as the case required.”
ofproot!ai1
Commenting on this charge, the court says: “In many cases, from certain admitted facts, the law will infer a definite contract, implied perhaps, but none the less certain and distinct. Much more will it infer certain elements as belonging to particular contracts, or impose specific duties in connection with and growing out of special undertakings. Especially is this true of all of that class of cases in which the contract grows out of an employment, in a greater or less degree public in its nature. All professional business partakes somewhat of this character.
The care and skill which a professional man guarantees to his employer are elements of the contract to which he becomes a party on accepting a proffered engagement.
They are implied by the law as resulting from that engagement, though it be but verbal, and nothing said in relation to such elements. So, continued attention to the undertaking, so long as attention is required in the absence of any stipulation to the contrary, is equally an inference of the law.
“If a counsellor at law undertakes the management of a cause, nothing more being said or done than simply an offer and acceptance of a retainer for that purpose, it will hardly be denied that an abandonment of the cause before its close would be as much a violation of the contract with the client as a neglect to use the requisite care and skill in its prosecution, and the duty of contiuued attention is equally an implication of the law as that of exercising the required care and skill. That the same principles apply to the employment of a physician or surgeon there can be no doubt; If he is called to attend in the usual manner, and undertakes to do so by word or act, nothing being said or done to modify this undertaking, it is quite clear as a legal proposition; that not only reasonable care and skill should be exercised, but also continued attention as long as the condition of the patient might require it, in the exercise of an honest and properly educated judgment; and certainly any culpable negligence in this respect would render him liable in an action.” Citing Sherman and Red-field on Negligence, sec. J^l.
In Bradley v. Bodge, 45 Howard’s Pr. Rep., 57, the defendant called at the office of the plaintiff, a physician, and not finding him, wrote on his business card, “Call on Mrs. I)-, at No. 769 Broadway;” left the card with a clerk in the office with directions to hand to the physician, and to tell him to come as soon as possible. The physician called on Mrs. I)- several times professionally, and performed services to the value of $98. And it was held that the defendant was liable to pay the bill.
In Pottter v. Virgil, 67 Barbour, 578, the head note, is :■ “When a physician is employed to attend upon a sick person, his employment continues while the sickness lasts ; and the relation of physician and patient continues, unless it is put at end to by the assent of the parties, or is revoked by the express dismissal of the physician.”
Putnam certainly knew that the plaintiff’s were eontinu ing their attentions to the wounded man under the original employment. And if he did not expect to be held for the value of those services beyond the first visit, good faith required him to give notice to that effect. A physician and his employer may make such contract as they see fit, limiting the attendance to a longer or shorter period, or to a single visit; and the law will enforce the contract they have made. But if there be no such limitation, and the physician is called in generally, the presumption is that his services are rendered under an implied engagement to attend the patient through that illness, or until his services are dispensed with. We perceive no distinction between Putnam’s liability for the first and any subsequent visit.
The judgment in favor of the lumber company is affirmed, and, as to the other defendant it is reversed, and a new trial is ordered. | [
48,
-21,
-72,
-113,
9,
104,
58,
-38,
83,
-95,
-91,
123,
-3,
-41,
5,
107,
-15,
125,
-43,
123,
-10,
-89,
51,
39,
-14,
-109,
-29,
-57,
-77,
-53,
-27,
-35,
76,
60,
74,
-111,
-90,
-126,
-55,
-100,
-58,
4,
-87,
-24,
61,
-64,
56,
-81,
80,
75,
117,
30,
-5,
46,
30,
-53,
40,
44,
110,
-83,
-47,
-79,
-104,
13,
47,
19,
35,
70,
-104,
33,
-16,
60,
-104,
49,
64,
-24,
123,
-76,
-122,
84,
7,
-103,
76,
98,
102,
35,
-103,
-17,
-120,
-72,
63,
-86,
-115,
-121,
-79,
41,
10,
8,
-66,
-99,
91,
20,
6,
122,
-70,
93,
24,
124,
3,
-113,
-44,
-109,
-49,
100,
-100,
63,
-17,
-113,
50,
81,
-98,
34,
93,
77,
114,
-101,
15,
-28
] |
Battle, J.
Shatter, Swartz & Co. recovered a judgment before a justice of the peace, against D. A. Smith, and sued out an execution thereon. The constable,to whom the execu tion was directed, levied it upon certain personal, property of Smith, and sold it, and William Dunnagan became the purchaser. Shaffer, Swartz & Oo. then applied to the justice to set aside the sale on the ground it was illegal. Ten days’ notice of the application having first been given, the justice heard the application and set aside the sale. William Dunnagan then filed in the Green circuit court, a petion for certiorari, reciting therein the foregoing facts, and asked that the order setting aside the sale be vacated. Defendants filed a demurrer to the petition, which the court sustained, and dismissed the petition, and petitioner appealed.
The only question in the case is, did the justice of the peace have authority to set aside the sale?
Power of J. P. to vacate a sale
In Jones v. Reed, 1 John. Cas., 20, it is laid down, that “It is a clear and salutary principle, that inferior jurisdictions, not proceeding according to the course of the common law, are confined strictly to the authority given them. They can take nothing by implication, but must show the power expressly given them in every instance. The sound rule of construction in respect to the courts of justices of the peace, is to be liberal in reviewing their proceedings as far as respects regularity and form, and strict in holding them to the exact limits of jurisdiction prescribed to them by the statute.” Wright v. Warner, 1 Doug., 384.
In Whiteside v. Kershaw, 44 Ark., 380, this court, in speaking of the jurisdiction of justices of the peace, said:
“At common law they had no civil jurisdiction. The grant of this authority is American, and results from positive law. With us their jurisdiction is derived from the constition, and they possess only such jurisdiction as is expressly given, coupled with the incidental powers necessary to carry it into effect. All jurisdiction was parceled out and distributed by the constitution, and the jurisdiction not expressly granted to some other court, or authorized to be granted, is reserved to the circuit courts. The justices of the peace take nothing by implication, except what is necessary to make effective their express power.”
In The People v. Delaware Common Pleas, 18 Wend., 558, it was held, a justice of the peace, after having entered in his docket the amount for which he had rendered judgment against a defendant, and after having informed the parties, had no power to alter the same by reducing the amount, although he subsequently discovered that in adding up the several items which he considered the plaintiff' entitled to recover, he had made a mistake by putting down the sum total at $10 more than ought to have been done; and that such an error may be corrected in a court of record on motion; but not in a justice’s court.
In St. Joseph Manf. Co. v. Harrigan, 53 Iowa, 380, it was held, a justice of the peace did not have power to instruct a jury called in the trial of a cause before him, because the power to do so was not conferred by statute.
In Doughty, Pearson & Co. v. Walker, 54 Ga., 595, and Brown v. Buttz, 15 S. C., 488, it was held, a justice of the peace could not set aside a judgment recovered before him.
In Richards v. Beed, 39 Ind., 330, it was held, a submission to arbitration c'annot be made a rule of court in a eourt of a justice of the peace, because not authorized by statute.
In McNamara v. Spees, 25 Wis., 539, it was held, that a justice of the peace having received a verdict against a defendant on Saturday night, and having failed to render judgment forthwith as required by statute, but adjourned it over until Monday following, thereby lost jurisdiction.
In Brady v. Taber, 29 Mich., 199, it was held, an adjourn ment of a cause in a justice’s court for more than four-days after the trial is completed, for the purpose of rendering judgment, deprives the justice of jurisdiction under the Michigan statute; and that a judgment rendered live days after the completion of the trial is void.
We cite these cases to show how the rule laid down inWhitesides v. Kershaw, supra, has been applied. According-to this rule and the authorities cited, a justice of the peace-has no authority to set aside a sale under execution. It is not necessary to the exercise of the jurisdiction vested in him by the constitution. If the sale be void the property can be resold, without a formal order setting the sale aside.. Having the power, as held by this court in Scanlan v. Mixer, 34 Ark., 354, to quash the return on an execution-issued by him, for legal cause, he can remove the only obstacle that might be in the way of a second levy and sale.
The judgment of the court below is, therefore, reversed,, and this cause is remanded with instructions to the court to overrule the demurrer to appellants’ petition, and for other proceedings not inconsistent with this opinion. | [
-16,
-2,
-40,
44,
58,
112,
40,
-8,
-61,
-31,
39,
83,
109,
67,
17,
59,
-9,
107,
117,
106,
-44,
-26,
55,
-109,
-78,
-13,
-37,
-51,
53,
108,
-2,
-42,
76,
32,
66,
29,
71,
-62,
-115,
-44,
-122,
32,
40,
105,
-7,
64,
48,
-69,
18,
75,
81,
-1,
-13,
46,
81,
-55,
-24,
44,
-53,
-68,
65,
-8,
-72,
-115,
127,
22,
19,
55,
-68,
3,
-50,
-50,
-112,
25,
1,
-24,
115,
-74,
6,
-12,
45,
25,
40,
-30,
98,
16,
97,
-17,
-72,
-55,
46,
-66,
-99,
39,
4,
88,
74,
8,
-74,
-115,
-19,
16,
-87,
-10,
-30,
13,
28,
44,
15,
-118,
-106,
-89,
-113,
48,
-98,
19,
-54,
-126,
48,
80,
-51,
-86,
93,
69,
116,
-101,
-50,
-51
] |
Cockuill, C. J.
The appellees obtained the possession of lands held by the appellant, in an action of unlawful detainer. The only question mooted at the trial that it is necessary to determine, in order to test the correctness of the judgment against the appellant, is, was he at the time the suit was instituted standing in the relation of tenant to the appellees within the meaning of the unlawful detainer act ?
Unlawful d e tai ner. Vendor and vendee.
The appellant was let into possession of the land by Robert Hampton, the then owner, under a written contract for a conveyance. "When this contract was executed he gave his two notes for the payment of this purchase money, due one and two years thereafter, with interest. A deed was to be executed when all the purchase money was paid. The first note contained a stipulation that if it was not paid when due, Ish should pay to Hampton “customary rent” for the use of the land. Prior to Ish’s contract with Hampton, the latter had mortgaged the lands to secure a debt due to W. E. McRae & Co., and the mortgage had been duly recorded when Ish acquired his rights. The land was sold under the mortgage and purchased by the appellees. Ish failed to pay his first note, which fell due shortly before they received their deed; and, after an unsuccessful attempt to agree with him upon the rate he should pay for the oecuj>ation of the land, they gave him notice to quit, and brought this action. There was some conflict in the testimony as to whether Ish actually attorned to the appellees and promised to pay them rent for the premises, and it becomes necessary to test the correctnesss of the court’s charge to the jury, in which they were, in effect, told that after Ish’s failure to pay his first note, he held the land as tenant to Hampton — that such was the effect of the contract between him and Hampton.
The agreement between the parties about the possession must determine the relation between them, and though it consists of two separate and distinct stipulations, they are to be read together as one contract (Hodges, ex parte, 24 Ark., 197; Nick’s heirs v. Hector, 4 ib., 251), and that contract is competent evidence to establish or rebut the relationship of landlord and tenant. (Mason v. Delaney, 44 Ark., 444.) If the contract shows that the defendant was in under an agreement to purchase, the idea of a tenancy was rebutted, and neither Hampton, nor those succeeding to his rights, could evict him by the summary process of unlawful detainer, although he had not strictly complied with the contract of purchase. (Mason v. Delancy, sup.; Necklace v. West, 33 ib., 682; McCombs v. Wallace, 56 N. C., 481 ; Nightingale v. Barnes, 47 Wis., 389 ; C. B. & Q. Ry. v. Skupa, 16 Neb., 341l.) But if, on the other hand, the meaning of it is that he is to pay rent, or a compensation for the use of the land, then he was a tenant (Sanders v. Musgrave, 6 B. & C., 524; S. C., 13 Eng. Com. Law Rep., 240), and as he held over after the expiration of his term, he could be ■evicted by the remedy here adopted.
The first stipulation of the contract is one of purchase •and sale. It binds the vendor to convey to the defendant; but to the terms of this agreement there is annexed the condition that in case of failure in the performance of the agreement to pay the first installment of purchase money, the intended vendee shall thereafter pay rent for the use of the land. It was certainly competent for the parties to ■enter into a binding agreement of this natui’e. (Wells v. Smith, 2 Edw. Chy., 78, S. C., 7 Paige, 22.) The vendor being unwilling to take the hazard of losing both principal and interest of the purchase price and the rent of the land as well, may make a sale upon condition, and give the vendee an option to hold as purchaser or as tenant after a .given day. The vendee here has in effect agreed that his rights shall depend upon the scrupulous adherence to the engagement he made to pay the purchase price, and that time should be a matercial consideration in the contract. The contingency thus provided for by the vendor had occurred when the notice to quit was given, and the defendant was then holding possession under his agreement to account to the owner for the rental value of the lands.
As was said by the Supreme Court of Mississippi in a case the facts of which are almost identical with those we are considering: “The vendee having in this case confessedly failed to pay the purchase money, came under the conditional obligation which he had by his agreement imposed upon himself to pay rent. This being a valid and legal obligation was enforceable by distress warrant.” (Vick v. Ayers, 56 Miss., 670.) In that case the contract to purchase was in parol, but in our judgment that is immaterial, because in an action which depends upon the existence of the relationship of landlord and tenant between the parties, the contract upon the faith of which the one •enters and holds under the other, may be proved for the purpose of elucidating that question, whether it is written or in parol. Mason v. Delancy, supra; Carpenter v. U. S., 17 Wall, 489.
In the case of Stinson v. Dousman, 20 How., 461, where there was a covenant to sell land upon condition that the purchase money should be paid in installments, and other acts, such as paying taxes and effecting insurance, should be performed by the covenantee, on failure to perform which, rent was to be charged; and the covenantee entered into possession under the contract, but failed to execute his part of it, it was held that he was holding as tenant, and was chargeable with rent.
And in Saunders v. Musgrave, supra., Lord Tenterden held that the relation of landlord and tenant existed between the parties to a contract not unlike this. See Taylor's Landlord and Tenant, sec. 25 and note; Dunham v. Townsend, 110 Mass., 440; Blanchard v. McDougal, 16 Wis.' 167; Gault v. Stourmont, 51 Mich., 636; Wells v. Smith, sup
The case of Walters v. Myers, 39 Ark., 560, is not incon sistent with this view, for in that case what was denomi. nated rent by the parties was in fact only interest upon the purchase money. There the vendee was to jjay a sum “not for the use of the land, grounded on the estimated value of such use,” as was said in Dakin v. Allen, 8 Cush., 33; “but as forbearance for payment of a sum of money for which he had given his note.”
We must conclude, then, that at the time the appellees became owners of the land, the relation of landlord and tenant subsisted between the defendant and Hampton, the former owner. It is not material to consider what equitable rights the defendant may have had for relief against the non-performance of his engagement at the stipulated time. (See Atkins v. Rison, 25 Ark., 138.) His contract was made subject to the mortgage under which the appellees purchased, and their title relates to the date of its execution ; and the defendant did not undertake to do-more than rely upon the terms of his agreement with Hampton to rebut the idea of a tenancy. In this he must fail. The appellees by their purchase succeeded to Hampton’s rights, according to the repeated decisions of this court, and could maintain the action of unlawful detainer against his tenant holding over after the expiration of ’his term. Mason v. Delancy, supra.; Johnson v. West, 4 Ark., 535; Halliburton v. Sumner, 27 ib., 460; Bradley v. Hume, 18 ib., 284; Frank v. Wedrick, ib., 304.
The court’s charge was not erroneous and the judgment is affirmed. | [
112,
127,
-4,
15,
90,
96,
40,
-104,
72,
-93,
39,
83,
109,
-61,
1,
33,
-91,
73,
65,
106,
75,
-77,
47,
65,
-48,
-13,
-37,
5,
-67,
77,
-2,
87,
12,
32,
-64,
81,
-62,
-29,
-13,
-104,
-114,
-115,
-120,
69,
-15,
-64,
48,
121,
64,
79,
113,
-122,
-13,
44,
21,
-50,
-55,
46,
107,
61,
-48,
104,
-98,
15,
91,
7,
-109,
39,
-20,
67,
-38,
44,
-112,
49,
1,
-24,
123,
-74,
-122,
84,
13,
-101,
-119,
38,
99,
32,
65,
-1,
120,
-99,
46,
126,
-83,
-90,
-112,
104,
67,
73,
-73,
-99,
124,
20,
39,
118,
-30,
-99,
-99,
107,
11,
-49,
-42,
-93,
13,
124,
-110,
17,
-57,
-127,
49,
96,
-49,
-94,
92,
97,
123,
-101,
-116,
-5
] |
Cockrill, C. J.
Ward was indicted for embezzlement. Hedemurred to the indictment. The demurrer was sustained to one count and overruled as to the others. A iurv a a was impaneled and sworn, and at the close of the day, the trial not being concluded, they were allowed by the court upon consent of the parties to separate. On the second morning of the trial one of the jurors was absent on account of the sickness of a member of his family, and the court then, for the first time, discovering that the defendant had not been arraigned, and had not entered a plea to the indictment, upon the motion of the prosecuting attorney, discharged the jury. "Ward then moved the court for his discharge upon the ground that he had been in jeopardy. The court granted his prayer and dismissed the indictment. The state has appealed.
i. Criminal Law: Former ifíschargé of jury.
It is the established rule that when a jury in a criminal case is impaneled and sworn, in a court of competent jurisdiction to try the prisoner, under an indictment sufficient in form and substance to sustain a conviction, he is in jeopardy. He is then entitled to a verdict which will bar further prosecution for the same offense, and an unnecessary discharge of the jury without his consent does not deprive him of the right to the bar. Whitmore v. State, 43 Ark., 271.
The consent of the prisoner to the separation of the jury in the ease under consideration, cannot be taken as a consent that a juror should absent himself and so necessitate the discharge of the others; and if there were nothing else to prevent the bar, he could not be again tried for the offense charged iu the indictment. Hillands v. Com. Sup. Court Penn., M. S. 1886.
2 . Same: Same,
II. Arraignment and plea necessarily precede the swearing of the jury, for the jury are sworn to try the issue made by the plea, and it was laid down under the old system that these steps were an essential part of the proceedings, and that without them there could be no valid trial or judgment. If the prisoner stood mute it was deemed that no trial could be had. If a plea could not be extorted from him, and it was ascertained that he was not dumb ex visitatiorie Dei, he was sentenced as on conviction. But as the legal system developed, methods of procedure yielded in importance to substantial rights, and the courts were authorized to enter a plea of not guilty for the prisoner who declined to plead, and to investigate the question of his guilt upon this enforced plea. The failure to enter the plea for him was still regarded as fatal to the legality of the proceedings, when, to further sink the importance of mere procedure when compared with rights, the legislatures of some of the states enacted that the trial and appellate courts should disregard every error or defect of procedure which did not affect substantial rights.
It has been accordingly held in some of these jurisdictions that the trial and judgment are not effected by the want of a plea where the prisoner has announced himself ready for trial, and has been accorded every advantage his plea could afford him. State v. Hays, 67 Iowa, 27; State v. Cassady, 12 Kan., 550.
But it is unnecessary to consider what effect, if any, under the provisions of our statutes, the absence of arraignment and plea may have had upon the trial in this case, for, upon looking at the indictment, it is discovered to be insufficient to sustain a judgment of conviction, and nothing that could have been done under it, short of an actual acquittal or conviction, could have conferred upon the accused immunity from further prosecution for the same offense. The statute provides that an acquittal or conviction by a judgment or a verdict shall bar any other prosecution for the same offense, notwithstanding a defect in form or substance in the indictment on which the trial took place. (Mansfield’s Digest, sec. 8176.) But there was no verdict or judgment in this case, and short of these the rule is, that where the indictment is so defective that the defendant, if found guilty, will be entitled to have the judgment entered thereon against him reversed for error, he has not been in jeopardy. 1 Bish. Crim. Law, sec. 121; Whitmore v. State, sup.; Atkins v. State, 16 Ark., 568.
3. Embezzlement: Indictment: Description of money.
III. The indictment charged the embezzlement of money. The only description given of the money in the indictment is so many dollars of good and lawful money of the United States. In the absence of an excuse alleged in the indictment, for the want of a more full and definite1' description of the money embezzled, we must continue to hold the general description too indefinite and uncertain until the legislature sees fit to alter it. State v. Thompson, 42 Ark., 517; Barton v. State, 29 ib., 68; Commonwealth v. Sawtells, 11 Cush. Mass., 142.
As the judgment of the court in dismissing the indictment was right, it must be affirmed. | [
48,
-6,
-104,
-97,
11,
-64,
42,
-72,
-112,
-125,
55,
87,
109,
-48,
1,
41,
51,
123,
85,
121,
-44,
-105,
7,
65,
-14,
-41,
73,
-123,
-74,
-53,
-92,
-9,
12,
-14,
-62,
-43,
-25,
-56,
-63,
88,
-122,
9,
-86,
65,
-14,
-102,
48,
-74,
117,
11,
49,
-98,
-13,
42,
31,
75,
105,
104,
91,
31,
80,
57,
-99,
13,
-5,
19,
-79,
7,
30,
3,
112,
62,
-100,
21,
1,
-24,
123,
-106,
-126,
-42,
107,
-102,
44,
38,
34,
-127,
-127,
-1,
-104,
-95,
62,
46,
-99,
-121,
-48,
105,
75,
8,
-74,
-103,
123,
30,
-114,
-6,
109,
-124,
120,
102,
3,
-53,
-108,
-109,
-117,
52,
-98,
-109,
-29,
-87,
0,
53,
-50,
-74,
92,
71,
90,
27,
12,
-13
] |
DAVID M. GLOVER, Judge.
|; Heidi Harter appeals the trial court’s October 25, 2013 dismissal of her petition for registration and enforcement of an April 12, 2011 judgment from the State of Kansas, which was a decree of divorce concerning Heidi and appellee, David Szy-kowny. Heidi raises three points of appeal: 1) the trial court erred in sua sponte dismissing her petition without any dispos-itive motions from David; 2) the trial court’s actions in sua sponte dismissing her petition violated both the Full Faith and Credit Clause of the United States Constitution and the Uniform Enforcement of Foreign Judgments Act of the State of Arkansas; and 3) the trial court’s actions in sua sponte dismissing her petition violated the Uniform Child Custody Jurisdiction and Enforcement Act of the State of Arkansas. We reverse the trial court’s dismissal and remand for proceedings consistent with this opinion.
|⅞>Background,
The Kansas decree granted joint custody of the parties’ two minor children to Heidi and David, with Heidi having pri mary custody of the children. Paragraph 7 of the decree, titled “Children,” provides in part: “The State of Kansas and this Court have continuing jurisdiction over the minor children of the parties pursuant to the Uniform Child Custody Jurisdiction Act. K.S.A. 38-1301 et seq.” (Emphasis added.) Paragraph 10. i. of the decree provides: “Continuing Jurisdiction of the Court for Modification. The parties are advised and understand that any provision related to legal custody, residential custody, parenting time, child support, education and other matters related to the minor children shall be subject to the continuing jurisdiction of this Court as provided by law.” (Emphasis added.) Paragraph 12 of the Kansas decree provides:
12. PRETENTION OF CHILD CUSTODY JURISDICTION. Recognizing this Court to have jurisdiction over child custody matters to avoid future jurisdictional competition or conflict and to discourage continuing controversies over child custody and avoid re-litigation of custody decisions and to build stability and consistency for the minor children, the parties agree and this Court Orders, that until this Court orders otherwise, the State of Kansas and this Court shall retain jurisdiction over future proceedings involving custody and visitation. This Agreement in no way limits the right of either parent having Primary Residential Custody of their child, to petition any Court for a change of jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act (UC-CJEA).
(Emphasis added.) Paragraph 14 provides in part that “[t]he Respondent shall make child support payments payable and send to: Kansas Payment Center, P.O. Box 758599, Topeka, Kansas 66675-5722.” Paragraph 16 c. provides:
c. A change of the residence or the removal of a child as described in subsection (a) may be considered a material change of circumstances which justifies modification of prior order of legal custody, residency, child support or parenting time. In determining any motion seeking a modification of a prior order based on|schange of residence or removal as described in (a), the court shall consider all factors the court deems appropriate including, but not limited to: (1) The effect of the move on the best interests of the child; (2) the effect of the move on any party having rights granted pursuant to K.S.A. 60-1610, and amendments thereto; and (3) the increased cost the move will impose on any party seeking to exercise rights granted under K.S.A. 60-1610, and amendments thereto.
Heidi filed her petition to register and' enforce the Kansas decree in Arkansas on May 6, 2013. In paragraph 6 of the petition, she states, “Petitioner merely seeks to file the judgment and decree of the State of Kansas in the Circuit Court of Carroll County, Arkansas, and have it enforced pursuant to the provisions of the Arkansas Uniform Child Custody Jurisdiction and Enforcement Act, ACA § 9-19-101 et seq., including the provisions found at ACA § 9-19-303.” The petition further provided that David was current on his child-support obligation at that time and that “all future child support payments should be made through the Arkansas Child Support Clearinghouse, P.O. Box 8124, Little Rock, Arkansas 72203.”
David responded, asserting that jurisdiction should remain with the Kansas court in accordance with the terms of the original decree. It is undisputed that, at the time the petition was filed, Heidi and the children had lived in Arkansas for more than one year and David had lived in Utah for more than one year. Thus, neither of the parties or their children had lived in Kansas for over a year.
Letters between counsel for the parties and the Arkansas trial court indicated that the question of appropriate jurisdiction was being pursued in the Kansas court. In his letter, David’s counsel also noted that Heidi had informed David by email that she planned to move to Hawaii; and Heidi’s counsel, in his letter, countered that Heidi did not plan to go to ^Hawaii. By “Journal Entry of September 28, 2013,” filed October 8, 2013, the Kansas court made the following pertinent findings: that David had previously filed a motion to modify custody and other relief; that subsequent to the motion being filed, Heidi filed a motion for the Kansas court to relinquish jurisdiction to the State of Arkansas; that it was not disputed that neither the parties nor the children presently resided in Kansas; that “the parties essentially contracted themselves out of requesting another state to seize jurisdiction of this matter without this Court first releasing the same pursuant to their Decree of Divorce agreement”; that, “further, the Court finds that it would not be appropriate to release jurisdiction of this matter to Arkansas as it would be an inconvenient forum”; and that “as such, [David’s] pending motion shall proceed to evidentiary hearing and the same shall be considered by the court under Kansas law.”
As mentioned at the outset, the Arkansas trial court then filed its order, “on its own motion,” recognizing that the Kansas court had denied Heidi’s motion for the Kansas court to relinquish jurisdiction of the matter to Arkansas, and that
while recognizing its authority to exercise jurisdiction, this court in accordance with ACA § 9-19-207(b) hereby declines to exercise its jurisdiction in the matter sought to be registered and enforced by [Heidi] as it finds the State of Kansas is the more appropriate forum to continue to exercise jurisdiction as the State of Arkansas is an inconvenient forum, having considered all relevant factors enumerated.
The Arkansas court then denied Heidi’s petition for registration and enforcement and dismissed the action. This appeal from that order followed.
I. The trial court erred in sua sponte dismissing Heidi’s petition without any dispositive motions from David.
kFor her first point of appeal, Heidi contends that the trial court erred in dismissing her petition without any disposi-tive motion from David. The cases that she relies upon, however, involve a trial court’s grant of summary judgment. We do not find those cases helpful under the facts of this case.
Here, the trial court declined to exercise jurisdiction and dismissed, on its own motion, Heidi’s petition to register and enforce the Kansas judgment and decree of divorce — it was not truly deciding a case on its merits; rather, it was exercising its discretion in deciding to decline jurisdiction. Consequently, the summary-judgment cases in which a court acted on its own motion can be distinguished. More importantly, Arkansas Code Annotated section 9-19-207(a) (Repl.2009) provides:
(a) A court of this state which has jurisdiction under this chapter to make a chüd-custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion, or request of another court.
(Emphasis added.) The issue of inconvenient forum is the only true issue decided by the trial court in the order on appeal, and for the reasons explained, we conclude that the argument presented under this first point cannot serve as a basis for reversal.
II. The trial court’s actions in sua sponte dismissing Heidi’s petition violate both the full faith and credit clause of the United States Constitution and the Uniform Enforcement of Foreign Judgments Act of the State of Arkansas.
For her second point of appeal, Heidi contends that the trial court violated both the Full Faith and Credit Clause of the United States Constitution and the Arkansas Uniform Enforcement of Foreign Judgments Act when it denied her petition and dismissed the matter. |fiWe dispose of this point and move to the meritorious third point by merely noting that the constitutional concept of full faith and credit is incorporated into the UCCJEA (see Ark.Code Ann. § 9-19-313 (Repl. 2009)), and, the UCCJEA is the exclusive method for determining the proper state for jurisdictional purposes in child-custody proceedings that involve other jurisdictions, West v. West, 364 Ark. 73, 216 S.W.3d 557 (2005) (emphasis added).
III. The trial court’s actions in sun sponte dismissing Heidi’s petition violate the Uniform Child Custody Jurisdiction and Enforcement Act of the State of Arkansas.
We arrive now at Heidi’s third point, which contends that the trial court violated the provisions of the UCCJEA by dismissing her petition. We agree.
To resolve this issue, we must examine the UCCJEA in context to understand how the statutes operate. Generally, Sub-chapter 1 is titled, General Provisions; Subchapter 2 is titled, Jurisdiction; and Subchapter 3 is titled, Enforcement. Sub-chapter 2 primarily comes into play when a court of this state has been asked to exercise its jurisdiction to make an initial child-custody determination (Ark.Code Ann. § 9-19-201 (Repl.2009)) or to modify an existing child-custody determination (Ark. Code Ann. §§ 9-19-202, -203 (Repl.2009)). Here, the petition’s only request for a change was somewhat ministerial in nature, i.e., changing the payment clearinghouse from Kansas to Arkansas. We do not consider that to be a child-custody modification under the Act. Consequently, Subchapter 3, Enforcement, is the more pertinent subchapter for addressing this issue.
^Section 9-19-303(a) (Repl.2009) ' provides in part:
(a) A court of this state shall recognize and enforce a child-custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this chapter or the determination was made under factual circumstances meeting the jurisdictional standards of this chapter and the determination has not been modified in accordance with this chapter.
(Emphasis added.) Section 9-19-305 (Repl.2009) provides in part:
(a) A child-custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement, by sending to the appropriate circuit court in this state:
(1) a letter or other document requesting registration;
(2) two (2) copies, including one (1) certified copy, of the determination sought to be registered, and a statement under penalty of perjury that to the best of the knowledge and belief of the per son seeking registration the order has not been modified; and
(3) except as otherwise provided in § 9-19-209, the name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody or visitation in the child-custody determination sought to be registered.
(b) On receipt of the documents required by subsection (a) of this section, the registering court shall:
(1) cause the determination to be filed as a foreign judgment, together with one (1) copy of any accompanying documents and information, regardless of their form; and
(2) serve notice upon the persons named pursuant to subdivision (a)(3) of this section and provide them with an opportunity to contest the registration in accordance with this section.
(Emphasis added.) The only basis upon which the foreign judgment can be contested is to challenge its validity. See section 9-19-305(d) (Repl.2009).
^In short, because Heidi’s Arkansas petition did not seek to change custody, but rather merely to register and enforce the existing Kansas decree, subchapter 3 was the only portion of the UCCJEA that was invoked by her petition as far as the Arkansas trial court was concerned, and the Arkansas trial court should have registered the Kansas decree in Arkansas. We therefore reverse and remand for proceedings consistent with this opinion.
Reversed and Remanded.
PITTMAN and WHITEAKER, JJ., agree.
. Denominated Journal Entry of Judgment and Decree of Divorce. | [
-112,
-28,
-11,
124,
14,
-64,
122,
-80,
122,
-109,
39,
115,
107,
-53,
20,
121,
67,
43,
80,
121,
-61,
-74,
87,
64,
114,
-13,
-111,
94,
-70,
95,
-81,
-106,
76,
112,
42,
-11,
70,
-21,
-125,
28,
-126,
0,
-40,
-28,
90,
-49,
52,
97,
82,
15,
49,
46,
-77,
42,
59,
-29,
-88,
46,
-37,
-76,
-39,
-104,
-37,
85,
95,
0,
-79,
52,
16,
-91,
64,
59,
-60,
-8,
41,
-23,
51,
-74,
-122,
116,
67,
27,
-87,
100,
99,
35,
28,
-3,
-68,
-116,
46,
63,
29,
-90,
-109,
88,
74,
14,
-74,
-75,
116,
22,
43,
-6,
-26,
13,
30,
-4,
-122,
-49,
-48,
-69,
30,
81,
-86,
1,
-29,
-27,
-96,
81,
-61,
-92,
92,
-61,
58,
-102,
-50,
-2
] |
PHILLIP T. WHITEAKER, Judge
| ^Appellant Marlon Myers attempts to challenge the sufficiency of the evidence supporting the revocation of his suspended imposition of sentence. Because we conclude that his arguments are not preserved for appeal, we affirm.
Myers entered a plea of guilty to one count of first-degree domestic battery and was sentenced to six years’ imprisonment followed by fourteen years’ suspended imposition of sentence (SIS). Among the terms and conditions of his SIS were that he not violate any federal, state, or municipal law, and pay a $100 public-defender fee. The State subsequently filed a- petition to revoke Myers’s SIS, alleging that he had committed new criminal offenses and failed to pay his court-ordered monetary obligations.
|2At a revocation hearing, the State introduced certified copies of Myers’s convictions for second-offense driving while intoxicated and driving on a suspended license; in addition, the State introduced a ease profile from Myers’s domestic-battery file, showing a balance of fines and costs in the amount of $1,640 and a public-defender-fee balance of $100. The State then rested, and Myers moved for a directed verdict, which the circuit court denied. Myers then testified and admitted to having pled guilty to the DWI count.
At the conclusion of the hearing, Myers’s counsel argued for a more lenient sentence but acknowledged that Myers’s suspended sentence for domestic battery would exclude him from several programs, such as drug court or a regional correctional facility. The circuit court found that Myers had violated the terms of his suspended sentence, revoked his SIS, and sentenced him to four years in the Arkansas Department of Correction, followed by another ten years’ SIS.
On appeal, Myers raises three separate arguments, asserting that the circuit court erred by not directing a verdict because (1) the State failed to present any evidence that Myers was subject to a suspended imposition of sentence; (2) the State failed to present any evidence that Myers was subject to the terms and conditions of a suspended sentence; and (8) the State failed to present any evidence that Myers had been given a copy of the terms and conditions of a suspended sentence.. None of these arguments are preserved for appellate review.
Myers’s first two points address the State’s failure to introduce a copy of the terms and conditions of his SIS. He urges that the only evidence offered by the State was evidence of his DWI-related convictions and his failure to pay his fines and public-defender fee. He Uasserts that the State failed to introduce a copy of the terms and conditions of his SIS in order to prove that he was subject to a SIS or to prove the requirements of the terms and conditions of the SIS. Thus, Myers contends that there was insufficient evidence on which the circuit court could revoke his SIS.
Myers couches his argument as a challenge to the sufficiency of the evidence, which is an argument that may be raised for the first time on appeal in an appeal of a revocation in the absence of a motion for directed verdict. See Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001). This court, however, has held that an argument that the State failed to introduce a copy of the terms and conditions of a suspended sentence is a procedural objection that must be raised before the circuit court. Cotta v. State, 2013 Ark. App. 117, 2013 WL 625735; Whitener v. State, 96 Ark.App. 354, 241 S.W.3d 779 (2006). Myers never objected to the State’s failure to introduce the terms and conditions of his suspended sentence. Under Cotta and Whitener, therefore, Myers’s first two arguments are not preserved for appeal.
Myers’s third point on appeal is that, because the State failed to introduce evidence showing that he was given a copy of the terms and conditions of his SIS, the circuit court was “foreclos[ed] from knowing what terms and conditions Myers was to follow.” Myers urges that this specific argument is not a procedural argument but is, instead, a challenge to the sufficiency of the evidence and thus distinguishable from Cotta, supra.
This same argument, however, was rejected in Nelson v. State, 84 Ark. App. 373, 141 S.W.3d 900 (2004). There, the appellant argued that the State failed to produce proof at the revocation hearing that a written list of probationary conditions had ever been given to him, |4and that his probation therefore could not be revoked. This court disagreed, noting that Nelson had never raised the issue by pointing out to the trial court that he had not been furnished a written statement of his conditions or by objecting to the revocation hearing on that ground. Nelson, 84 Ark.App. at 379, 141 S.W.3d at 904. The court explained as follows:
The reason for the statutory requirement in Ark.Code Ann. § 5-4-303 (Repl. 1997) that probationary conditions be given to probationers in writing is to avoid misunderstanding by the probationer. This requirement comports with due process; otherwise, the trial courts have no power to imply and then later revoke on conditions that were not expressly communicated in writing to the defendant. This is not an issue of jurisdiction that can be raised at any time; it is instead a procedural issue that is waived by appellant’s failure to raise it to the trial court.
Id. at 380, 141 S.W.3d at 904-05 (internal citations omitted). Accordingly, because Myers did not object on this basis at his revocation hearing, his arguments are not preserved for appeal.
Myers nonetheless argues in his reply brief that, in Scroggins v. State, 2012 Ark. App. 87, at 6, 389 S.W.3d 40, 44, this court called the introduction of the actual terms and conditions of probation “to be something of a procedural/sufficiency hybrid.” There, the court considered the merits of Scroggins’s challenge to the State’s failure to introduce the terms and conditions of his probation, even though he had not raised that specific argument below. Myers thus contends that we should address the merits of his argument.
We disagree, and we take this opportunity to note that Scroggins is the only reported Arkansas case that utilizes the “procedural/sufficiency hybrid” language. That case was also limited to its specific facts, in that the revocation of Scroggins’s probation was based on his failure to pay fines, fees, costs, and restitution. Nelson, Whitener, and Cotta all involved ^revocations based on violations of law; as the court pointed out in Whitener, “[because our statutory law requires that every probationary sentence contain the condition that the probationer not -violate the law, and because everyone is presumed to know the law, it was not necessary for the State to introduce into evidence the probationary condition that appellant not violate the law.” Whitener, 96 Ark. App. at 357, 241 S.W.3d at 782; see also Costes v. State, 103 Ark. App. 171, 175, 287 S.W.3d 639, 642 (2008) (‘Whether there is proof that a probationer received written conditions of probation is a procedural matter, and not one of the sufficiency of the evidence, because the purpose of providing the conditions in writing is to prevent confusion on the probationer’s part.”).
Scroggins is thus somewhat of an outlier in our jurisprudence, and it is clearly not applicable to the instant case. We therefore reject Myers s argument and conclude that his argument is not preserved for appeal.
Affirmed.
Gladwin, C.J., and Hixson, J., agree. | [
48,
-17,
-23,
-98,
42,
-63,
25,
-72,
-45,
-57,
-10,
83,
39,
102,
5,
123,
-71,
123,
112,
121,
-37,
55,
102,
97,
-81,
-13,
9,
84,
-13,
79,
-28,
-36,
12,
112,
-30,
-11,
102,
67,
-9,
-40,
10,
3,
-119,
101,
-45,
-46,
48,
39,
0,
-113,
33,
-97,
-26,
10,
25,
-54,
77,
108,
91,
-83,
88,
-3,
-103,
15,
-21,
4,
-110,
116,
-104,
2,
82,
42,
28,
57,
1,
-8,
115,
-74,
-126,
84,
73,
-103,
-84,
32,
98,
-128,
89,
-59,
-68,
-56,
54,
62,
-99,
-90,
-40,
25,
67,
77,
-108,
-3,
110,
22,
13,
126,
119,
-124,
85,
108,
6,
-49,
20,
-79,
14,
61,
-122,
-13,
-29,
35,
80,
84,
-52,
-62,
92,
87,
121,
91,
-41,
-106
] |
Cookiull, C. J.
The first question presented by the record [ is, are lands bought with partnership funds for partnership purposes to be regarded as realty or personalty under the laws of descents and distribution ? Or, to state the question with more particularity, shall Ella D. Lenow, as the wfidow of a late member of the firm of Eones Bros., the business of which has been closed and the debts paid, take her dower in the real estate assets of the firm remaining after the winding up of its affairs, absolutely, as in personal property, or for life, as in real estate?
1. Dower: In part* nershir real ty.
The estate is valuable, and the solution of the question is important to Mrs. Lenow and the infant heir of her deceased husband, as the interest of one will be increased or diminished at the expense of the other.
The question is presented for determination to this court for the first time.
The doctrine which obtains wherever the English system of jurisprudence prevails that “ equity converts real estate, held for partnership purposes, into personalty, so far as may be necessary to settle all the equities between the firm and its creditors, and between the partners themselves,” was recognized, in the language quoted, by this court in the case of Percifull and Wife v. Platt, 36 Ark., 456. But the court' have not, as we are aware, approached nearer the solution of the question. See, too, Drewry v. Montgomery, 28 ib., 256; Jones, McDowell & Co. v. Fletcher, 42 ib., 422.
This assumed conversion is an equitable fiction, devised for the accomplishment of equitable results and to carry into effect what is presumed to be the intention of the partners themselves; for when they put land into a commercial firm it must be taken that they intend it to be considered or treated as personalty, since commerce concerns itself with personal property- alone.
“If the partners mean to deal honestly,” says Kent, “ they cannot have any other intention than the appropriation of the investment, if wanted, to pay the partnership debts;” and so the law necessarily implies the agreement that the partnership lands shall be treated as other partnership stock. 3 Kent’s Com.,* 39, n. (b).
When there is an agreement between the partners for an out and out conversion and sale of the lands after the partnership affairs are closed, and for a distribution of the proceeds, equity regards the lands as personal property, not only for partnership purposes, but for distribution as well, upon the principle that what the parties have directed to be done shall be taken as actually done. Foster’s Appeal, 74 Penn. St., 391; Lowe v. Lowe, 13 Bush., 688.
The authorities are uniform upon these questions. But when the case goes further and is relieved, as this is, from any special agreement to affect the consideration of the ■question, and is left to stand alone upon the fact that lands are a part of the residue of the stock of a solvent defunct ■firm, the question whether they are distributable, like other partnership stock, as personalty, or converted into and descend as realty, is one upon which a great deal of learning -and more discussion, with much conflict of opinion, have been expended.
The doctrine that is drawn from the conflicting cases in the English courts, seems to be that the partners having evinced the design to treat the lands as personalty by putting them into the partnership stock, the conversion into personalty is presumed to continue for all purposes unless the contrary intention is in some way shown; and while the legal title upon the death of a partner will go in the ordinary course of descent without survivorship, yet the equitable interest will, after an ascertainment of its value by sale, be distributable, according to the supposed intention of the deceased partner, as personal property. Collyer on Part., 76; Gow. Part., 256 et seq.; 3 Kent, supra; Randall v. Randall, 7 Sim., 271; Bell v. Phyn, 7 Vesey,453, and note; Thornton v. Dixon, 3 Brown Chy., 166, and note; Buchan, v. Sumner, 2 Barb. Chy., 199.
American judges have entertained opposite opinions upon this question, but the stronger tendency in this country, and it seems to us more in keeping with the reason of the thing, is to limit the doctrine of equitable conversion strictly to the purposes which demand its operation. The doctrine was invented for the convenience and accommodation of trade, and when that purpose is accomplished in any given case, the reason for the rule fails and its operation ought naturally to cease. This would seem more nearly to attain the object the partners themselves aimed at. The basis of the principle of both classes of the conflicting cases is the presumed intention of the deceased partner. Hoxie v. Carr, 1 Sumner, 173, 183; 1 Am. Lead. Gases, sup. When men enter into an agreement of copartnership, or purchase land with partnership funds for partnership use, and omit from their' articles of agreement or' their deed of conveyance, all mention of facts looking-to the creation of a trust to reach out beyond the end of the commercial project they have in view, and which will work a sale of the lands and convert them into cash after the successful close of the joint enterprise, and alter the rule, of descent — to say that they had these results in contemplation when they have not been alluded to and were not necessary to the accomplishment of the purposes about which they have contracted, is to push the doctrine of im plied intention to great length. But eminent judges have held to that view.
When the partnership is closed, the joint enterprise ended, and the equities of all parties concerned in it or interested in the joint stock worked out through the doctrine of conversion, why should not conversion cease, and the realty resume its natural character for those having no relation to the partnership ? AH partnership rights and obligations would thereby be secured, and “all equities growing out of that relation met and answered.” “ To require equitable interference to go further ” (say the Massachusetts court in Shearer v. Shearer, 98 Mass., 107), “and convert all real estate into personalty, for the mere purpose of a division, seems to us to be an unnecessary invasion of the rights of the copartners, and when undertaken in the interests of one class of the representatives of a deceased partner against another class of representatives of the same partner, it seems to he a departure from the legitimate sphere of equitable jurisdiction.
“ It is not the province of equity to seek to counteract or modify the operation of the laws of descent and distribution.”
According to the American cases, equitable conversion of real estate, in the absence of an agreement, goes no further than this. The mere circumstance that land is bought with joint funds for partnership use is not regarded as sufficient to convert it into personalty after the partner-' ship is closed and its affairs settled. This proposition may be taken as clearly established by the cases, viz.: “As between the personal representatives and heirs at law of a deceased partner, his share of the surplus of the real estate of the copartnership, which remains after paying the debts of the copartnership, and adjusting all the equitable claims of the different members of the firm as between them selves, is considered and treated as real estate.” Buchan v. Sumner, sup.; Foster’s Appeal, sup.; Shearer v. Shearer, 98 Mass., 107; Wilcox v. Wilcox, 13 Allen, 254; Woolbridge v. Wilkins, 3 How. (Miss.), 373; Dilworth v. Mayfield, 36 Miss., 52; Scruggs v. Blair, 44 ib., 494; McGrath v. Sinclair, 55 ib., 89; Clay v. Freeman, 118 U. S., 97; Coles v. Coles, 1 Am. Lead. Cases, notes *498; Uhlee v. Semple, 20 N. J. Eq., 294; Tillinghurst v. Chaplin, 4 R. I. 173; Campbell v. Campbell, 30 N. J. Eq., 415; Griffey v. Northcutt, 5 Heisk. (Tenn.), 746; Jones v. Shary, 9 ib., 660; Williamson v. Fontain, 7 J. Baxter, 212; Hewitt v. Rankin, 41 Iowa, 39; Bopp v. Fox, 63 Ill., 540; Simpson v. Leach, 86 ib., 286; Galbreath v. Gedge, 16 B. Mon., 631; Lowe v. Lowe, 13 Bush., sup.; Sherly v. Thomason’s Exr., 1 S. W. Rep. (Ky.), 530, and note; in re Codding & Russell, 9 Fed. Rep., 849 and, note; Logan v. Greenlaw, 25 ib., 299; Loubat v. Norris, 5 Fla., 363; 1 Wash. Real Prop., *159, 423; 1 Scrib. Dower, chap. 26, p. 563; Parsons on Part., p. 383.
"What is said by the court in Shearer v. Shearer, sup., is applicable to the facts in this case upon the further consideration of conversion for the assignment of dower.
“The widow’s right of dower in her husband’s interest in partnership real estate is not held subject to the payment of his private debts. As a general fact this incident makes dower a more valuable interest than the distributive share of the widow would be if the real estate were to be converted. But we do not regard that circumstance as of any weight in determining the general rule against such conversion. On the other hand, in our view, the special facts which, in the present .case, would make it more advantageous for the widow that the partnership realty should be converted into personal estate, furnish no ground for such conversion.” “ There are no equities between heirs and distributees, under our laws, which can call into exercise or quicken the powers of the court for the conversion of realty into personalty. We do not understand that, in the English courts any such supposed equities have ever been made a ground for the doctrine of equitable conversion, as held there. In the case of Cook-son v. Cookson, 8 Sim., 529, such a ground of interference-was emphatically discarded. That case, however, is not one in which the full extent of the English doctrine was-asserted.”
As the trusts of the partnership of Eones Brothers have been discharged, equity no- longer has occasion to make use of the machinery of trusts and through it to deal with the lands as personalty, but will leave them to be governed by the laws applicable to realty. Mrs. Lenow, the widow of the deceased partner, must therefore take her dower in his share of the residue of the real estate of the firm, as in other lands of which he was seized.
There was no error in the decree in this respect.
2. Dower-in partnership leasehold prop*erty.
2. The remaining question concerns the leasehold interest in block 77, which was also a part of the firm’s assets.
The guardian of the minor contends that under the statutes of Arkansas this leasehold interest must be taken and considered as real estate, and that as such it has, by the death of the father, A. T. Eones, descended and vested absolutely in the child, subject alone to Mrs. Lenow’s dower.
The chancellor adopted this view and decreed that dower should be assigned in this interest as in land. Mrs. Lenow contends that the interest is personal property, and that she is entitled to two-thirds of her deceased husband’s share of it absolutely — a third as dower in personalty, and one-half of the residue as next of kin of her deceased child. Loftin v. Glass, 15 Ark., 680.
“ No proposition has been better settled, from the earliest days of the common law, than that a lease, of whatever duration, is but a chattel.” Murdoch v. Ratcliffie, 7 Ohio, 119; 1 Taylor Land & Ten., sec. 14, n.; 2 Black. Com., 312; 2 Kent Com., 342.
It was at common law regarded within the definition of personal things, and although it was denominated a chattel real to distinguish it from mere movables, it was not, when speaking with legal accuracy, considered as real estate. It was not an estate of inheritance; but, like other chattels, went to the executor or administrator, and not to the heir. It was not, therefore, the subject of dower.
“ So strict was the law in this respect that an estate for two thousand years, no matter in what form or by what instrument created, would not confer dower upon the widow of the lessee.” 1 Scribner on Dower, 363; Park Dower, l$-8.
Our statute, however, confers the right of dower in personal property (Mansf. Dig., sec. 2591), and it is conceded here that if the estate for years is not realty by virtue of the statute, Mrs. Lenow should take the full two-thirds interest, as claimed, absolutely.
Section 2540, Mansfield’s Digest, in the chapter regulating “ Descents and distributions,” declares that “ the term ‘ real estate,’ as used in this act, shall be construed to include every estate, interest and right, legal and equitable, in lands, tenements and hereditaments, except such as are determined or extinguished by the death of the intestate seized or possessed thereof in any manner other than by lease for years and estate for the life for another person.”
Prom this definition of real estate a l{ lease for years ” is expressly excepted. The exception is awkwardly framed, and why the clause “ except such as are determined or extinguished by the death of the intestate seized or possessed thereof in any manner ” should have been re quired at all, is difficult to perceive. The estate of the heir is but a continuation of that of the ancestor, and if the estate is determined with the life of the ancestor, there can be nothing for the heir to take. If these words are placed in parenthesis the relation of the clause “other than by lease for years ” to the general definition given, is more apparent, though by no reading can it be taken in any light other than an exception.
¥e are referred by the counsel for the appellees to other provisions of the statute, where a chattel real comes within the definition of real estate as there used. (Mans/. Dig., sees. 64-5, 3002, 3956, 660.) But these provisions merely direct the manner in which leasehold property shall be conveyed and the conveyance admitted to record; or regulate judgment liens thereon, and prescribe how it shall be subjected to levy and sale under execution. They do not undertake to fix and declare the nature of the estate for the purpose of descent or distribution. Section 2540, quoted above, does that, and leaves it as it was before the statute — personal property.
In the case of Kinney v. Watts, 14 Wendell, 38, the court applied the definition of real estate, as found in the statute governing the recording of conveyances, in a case where the nature of the estate was involved; but, on a subsequent examination of the question, the court of appeals said the construction in Kinney v. Watts had been reached through inadvertence, and ruled that the statute did not affect the nature of the estate. The Mayor of N. Y. v. Babie, 13 N. Y., 151, 159-60. See, too, Tone v. Brace, 11 Paige, 566.
The Ohio cases cited in 1 Scribner on Dower, pp. 365-7, are in point, and sustain the position that the provisions relied on by the appellees were not intended to change the nature of the estate, and do not control the question now presented. The leasehold interests retain then the character or incidents of personal property, as at common law, and the statutes which govern the right to distribution of and dower in other personal property are applicable to them. The chancellor erred in treating them as real estate for the purposes of this controversy. Otherwise the decree is right, and is affirmed. As to the leasehold interests, it is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. | [
-14,
127,
-36,
109,
-40,
100,
42,
-72,
96,
-64,
103,
87,
31,
-6,
16,
105,
-94,
93,
65,
106,
-43,
-77,
23,
-125,
-44,
-109,
-45,
-36,
-67,
77,
99,
71,
76,
32,
-120,
85,
-62,
75,
-63,
92,
110,
13,
10,
106,
-39,
-44,
52,
43,
80,
76,
113,
-53,
-77,
40,
125,
71,
104,
46,
111,
41,
-47,
120,
-66,
-116,
127,
23,
-109,
37,
-8,
65,
-56,
14,
-112,
113,
-88,
-23,
86,
-76,
-42,
116,
15,
-71,
41,
38,
115,
16,
1,
-17,
-78,
8,
44,
122,
-115,
-121,
97,
88,
35,
105,
-99,
-98,
88,
20,
-25,
116,
-90,
-107,
29,
97,
23,
-81,
-42,
-126,
-123,
94,
-104,
11,
-2,
3,
49,
64,
-50,
-86,
92,
103,
58,
-37,
-114,
-14
] |
Cockrill, C. J.
In charging the offense of being interested in the sale of liquors to a minor, it is not necessary to allege by whom the sale was made, but it is sufficient to follow the language of the statute.
1. Liquok: Indict-m o n t against party interested in sale.
That is the general rule as to statutory misdemeanors, and offenses against the liquor law are not exempt from its operation. Those who embark in the traffic take upon themselves the hazards that accompany it. State v. Waller, 38 Ark., 656; Robinson v. Warren, ib., 641.
2. Indorsing verdict on indictment.
Second — When the jury retired to considerof theirverdict, the court handed an indictnient charging a similar offense to the foreman ; a verdict of guilty was indorsed upon it, and the clerk entered up the judgment upon the indictment upon which the verdict was rendered. The mistake was discovered and the judgment entered upon the indictment upon which the trial was had. The appellant claims a reversal of the judgment on this ground, but fails to point out how he was or could have been prejudiced by the action complained of.
He was regularly tried and legally found guilty under the indictment upon which the judgment is entered, and the fact that the jury indorsed the verdict upon another indictment, or upon none -at all, is of no concern.
Affirm. | [
-32,
-10,
-51,
-99,
8,
-32,
42,
-70,
1,
-77,
55,
-77,
105,
82,
16,
107,
-5,
123,
84,
122,
-48,
-121,
15,
67,
-10,
-45,
-45,
-57,
-74,
111,
102,
-9,
29,
-16,
82,
117,
102,
-53,
-95,
-108,
-126,
12,
26,
64,
99,
-120,
48,
62,
69,
10,
97,
-34,
-13,
42,
31,
-53,
107,
44,
11,
63,
-64,
112,
-102,
13,
63,
22,
-93,
54,
-99,
3,
-40,
14,
-100,
49,
9,
-24,
123,
-108,
2,
84,
11,
25,
-116,
102,
98,
-93,
21,
-21,
48,
-56,
47,
46,
61,
-121,
88,
113,
11,
40,
-97,
-35,
54,
19,
-121,
-4,
-22,
-59,
83,
120,
7,
-41,
52,
-13,
-113,
54,
30,
67,
-61,
-91,
16,
101,
-49,
38,
92,
88,
82,
-101,
-116,
-76
] |
Smith, J.
E. S. Taylor & Co. sued Irwin & Co. before a justice or the peace, and took out an attachment, which was levied upon a town lot as the property of John Irwin, one of the defendants. The plaintiffs recovered a iudgment for their debt, but the attachment was quashed. The plaintiffs appealed, and in the circuit court judgment was again rendered in their favor, the attachment sustained and the lot condemned to sale. No appeal was taken from this judgment, and for satisfaction thereof, a special ji. fa. was issued and the lot advertised for sale. John Irwin thereupon filed his schedule of exempted property, claiming the lot as his homestead, and the clerk granted a supersedeas.
i. exeupHojme- ^ Supersejudgment ment-
The plaintiff now moved the circuit court to quash the supersedeas because:
First — It was not alleged that the house and lot were occupied by Irwin as a home ; and,
Second — It was not filed in time.
The circuit court did not pass upon the ground first mentioned, but ruled that it was necessary to claim the exemption before final judgment in the attachment suit.. It therefore discharged the supersedeas.
Irwin was not estopped by the judgment in the attachment suit to claim his homestead. Ilis right of homestead was not, and could not, have been litigated in that action. For justices of the peace have no jurisdiction where a lien on, or title to, or possession of, land is involved. (Const, of 1874, art. 7, see. 40.) And by appeal' from their judgments, the circuit court acquires no greater jurisdiction than they possessed. The constitutionality of the act of January 23, 1875 (Mans/. Dig. sec. 41®5, et seq.), authorizing the constable to levy an attachment upon land,, was sustained upon the distinct ground that it did not undertake to empower the justice to make any adjudication of such questions. Bush v. Visart, 40 Ark., 124.
Bo doubt the ground of attachment may be controverted before the justice or in the circuit court on appeal as, for example, whether the defendant is a non-resident of the state ; whether he has been absent therefrom four months ; whether he conceals himself to avoid the service-of process, etc. For a trial of these issues involves an inquiry into the existence or non-existence of certain facts wholly unconnected with the laws governing real estate.
If Irwin possesses the qualifications prescribed by the-constitution for claimants of a homestead, his right to-hold this town lot, as exempt, will depend on the fact whether it was occupied by him as a residence at the date-of the levy of the attachment. Patrick v. Baxter, 42 Ark., 175; Richardson v. Adler, Goldman & Co., 46 ib., 43. Reversed and remanded for further proceedings. | [
-16,
108,
-100,
-34,
10,
-32,
40,
-68,
-21,
-14,
-25,
83,
-17,
-53,
1,
97,
-10,
41,
101,
106,
-41,
-77,
35,
-118,
-46,
-13,
-37,
-43,
-79,
76,
-25,
-41,
76,
56,
66,
-43,
-25,
-119,
-59,
28,
-50,
-127,
-119,
-19,
-7,
64,
56,
-87,
80,
79,
81,
-114,
-13,
46,
25,
67,
8,
44,
-21,
61,
88,
-8,
-97,
6,
127,
19,
-78,
101,
-104,
-61,
74,
-118,
-112,
29,
-128,
-24,
115,
-74,
22,
116,
5,
-71,
40,
102,
98,
1,
41,
-18,
-8,
24,
46,
-2,
31,
-90,
-106,
88,
75,
8,
-66,
-99,
117,
16,
-60,
126,
-28,
-59,
92,
44,
15,
-49,
-74,
-73,
-113,
-72,
-100,
67,
-25,
-126,
48,
65,
-49,
-94,
92,
103,
117,
-101,
14,
-56
] |
Cockrill, C. J.
Two indictments were returned against the appellee for selling whisky to a minor. The first charged him with selling to a minor on the 15th day of January ; the second, with selling to the same minor on the 15th day of February, of the same year. He entered a plea of guilty to the second indictment, and when the other case was called for trial, he interposed a plea of former conviction, relying upon the judgment upon the plea of guilty in the first case as a bar. On the trial of the issue under this plea before the court, a jury being waived, the state proved that the defendant had made sales of liquor to the minor prior to the 15th day of February, the date of the sale charged in the second indictment, and within one year of the finding of the first indictment, and also other sales subsequent to the time laid in the second indictment. The court found in favor of the defendant, sustained his plea of former conviction and discharged him. The state appealed.
The finding is not sustained by the proof. Each sale of liquor by the defendant to the minor was a separate offense, and there could be as many convictions as there were sales made. (Emerson v. State, 43 Ark., 372.) It is true the state may preclude the possibility of more than one conviction, even where there have been many sales, by taking a wide range in the proof, putting all the guilty sales in evidence, and relying upon the whole proof for a single conviction. In that case the defendant can be convicted upon the proot of any one of the sales made within a year of the finding of the indictment, and it is the established rule that the former conviction is a bar to a subsequent indictment for any offense of which the defendant might have been convicted upon the testimony under the indictment in the first case. Nunnelly’s case, Ark., 68, is an illustration in point. But it is necessary in this class of cases, as in others, for the defendant, in order to sustain a plea of former conviction, not only to produce the record of conviction, but to show that he has been tried for the same oflense for which he is being prosecuted. The defendant in this case offered no parol testimony at all to sustain his plea, but relied upon the record of conviction.
There is no presumption that the sale made on the 15th of February is the same sale charged to have been made on the 15th of January (Emerson v. State, sup.), and the fallacy that the conviction in the case that had already been tried might have been had upon proof of a sale made on the day charged in the pending indictment, is exposed by the record of conviction itself. It is shown on the face of it that the defendant entered his plea of guilty to the specific charge laid in the indictment — that is, to a sale made on the 15th day of February. This judgment is therefore a conviction of selling on that day and no other, and cannot be successfully pleaded as a bar to a prosecution for an illegal sale made upon any other day.
The judgment must be reversed, and the cause remanded for further proceedings. | [
-80,
-30,
-52,
60,
58,
96,
42,
-68,
66,
-61,
119,
115,
-23,
-62,
0,
97,
-125,
111,
85,
104,
-44,
-89,
35,
65,
-30,
-77,
-55,
-57,
-76,
111,
-18,
116,
28,
-76,
-54,
-43,
102,
-53,
-63,
90,
-126,
9,
-104,
-61,
122,
-118,
52,
82,
7,
14,
97,
-106,
-125,
41,
28,
-49,
105,
44,
75,
61,
80,
104,
-104,
13,
15,
20,
-93,
119,
-107,
-122,
-24,
46,
-98,
49,
0,
-24,
113,
-108,
-122,
84,
15,
-119,
-116,
98,
35,
36,
5,
-25,
-84,
68,
47,
47,
-68,
-90,
-8,
105,
65,
104,
-99,
-35,
120,
18,
45,
126,
-30,
-43,
17,
108,
38,
-121,
-78,
-79,
-49,
52,
78,
18,
-49,
33,
16,
101,
-51,
-94,
92,
85,
112,
-101,
-114,
-34
] |
COURTNEY HUDSON GOODSON, Associate Justice
|, This case presents the following certified question from the United States District Court for the Eastern District of Arkansas, Judge Brian Miller:
Whether the Federal National Mortgage Association satisfies the Statutory Foreclosure Act’s authorized-to-do-business requirement, Ark. Code Ann. § 18-50-117, under 12 U.S.C. § 1716 et seq., or other federal laws, or must the Federal National Mortgage Association satisfy Ark. Code Ann. § 18-50-117 by obtaining a certificate of authority in Arkansas prior to statutorily foreclosing on property in Arkansas?
Petitioners, Robert and Pamela Dickinson, (“the Dickinsons”) contend that respondent, the Federal National Mortgage Association (“Fannie Mae”), may not institute foreclosure proceedings under the Statutory Foreclosure Act, codified at Ark. Code Ann. §§ 18-50-101 et seq., unless it is “authorized to do business in this state,” which the Dickinsons claim requires Fannie Mae to obtain a certificate of authority from the Arkansas Secretary of State. ^Respondents argue that the statute allows any authorization, including authorization under federal law. We hold that the statute does contemplate authorization under federal law and that Fannie Mae’s federal charter is sufficient to allow it to proceed under the Statutory Foreclosure Act.
This case stems from a statutory foreclosure proceeding instituted against the Dickinsons by respondent, SunTrust National Mortgage Inc. (“SunTrust”). According to the Dickinsons’ complaint in this case, they have a note and a mortgage owned by Fannie Mae that is serviced by SunTrust. In early 2010, the Dickinsons fell behind on their payments, and in November 2010, SunTrust initiated a foreclosure action pursuant to the Statutory Foreclosure Act. In January 2011, shortly before the scheduled auction of their home, the Dickinsons filed suit against Fannie Mae and SunTrust in the circuit court of Green County, asserting causes of action for breach of contract, breach of the duty of good faith and fair dealing, promissory estoppel, and violations of the Arkansas Deceptive Trade Practices Act, codified at Ark. Code Ann. §§ 4-88-101 et seq. The circuit court granted the Dickinsons a temporary restraining order halting the statutory foreclosure sale of their home.
Thereafter, the Dickinsons filed an amended class-action complaint against Fannie Mae and SunTrust. Specifically, the complaint claimed that Fannie Mae, as the owner of the mortgage and the note, was not “authorized to do business” in Arkansas, as required by the Statutory Foreclosure Act, because it had failed to register to do business in Arkansas. The amended class-action complaint also pled causes of action against Fannie Mae for violations of the Arkansas Deceptive Trade Practices Act, unjust enrichment, and slander of title. The|sDickinsons also reiterated their claims against SunTrust for violations of the Arkansas Deceptive Trade Practices Act and unjust enrichment.
The respondents removed the case to federal court. Following a decision by the Eighth Circuit Court of Appeals in JPMorgan Chase Bank N.A. v. Johnson, 719 F.3d 1010 (8th Cir.2013), in which the Eighth Circuit held that the “authorized to do business” clause was satisfied by a federal law authorizing banks to do business in Arkansas, the respondents filed a motion to dismiss for failure to state a claim. The Dickinsons opposed the motion to dismiss and filed a cross-motion to certify the issues to this court. The district court granted the Dickinsons’ motion and certified the above issue. We accepted certification.
The Statutory Foreclosure Act establishes a system of nonjudicial foreclosure proceedings as an alternative to judicial foreclosures. Because the Act is in derogation of the common law, its provisions must be strictly construed and complied with. Henson v. Fleet Mortg. Co., 319 Ark. 491, 892 S.W.2d 250 (1995). The district court has asked for our interpretation of Arkansas Code Annotated section 18-50-117 (Repl. 2003), which provides,
No person, firm, company, association, fiduciary, or partnership, either domestic or foreign, shall avail themselves of the procedures under this chapter unless authorized to do business in this state.
(Emphasis added.) The issue on certification is the meaning of the phrase “authorized to do business in this state.” The Dickinsons argue that this phrase requires entities wishing to use the nonjudicial foreclosure procedures to register with and receive a certificate from the Arkansas Secretary of State. Respondents argue that authorization under federal law is sufficient.
pThe first issue is whether Ark. Code Ann. § 18-50-117 is ambiguous. A statute is ambiguous if it is open to two or more constructions, or if it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Voltage Vehicles v. Ark. Motor Vehicle Comm’n, 2012 Ark. 386, 424 S.W.3d 281; Yamaha Motor Corp, U.S.A. v. Richard’s Honda Yamaha, 344 Ark. 44, 38 S.W.3d 356 (2001). In this case, section 18-50-117 clearly contemplates that an entity must be “authorized to do business” in Arkansas to employ statutory foreclosure proceedings under the Statutory Foreclosure Act. However, the statutory language fails to provide direction as to what an entity must do to become “authorized to do business” in the state. As a result, we consider the statute to be ambiguous. When a statute is ambiguous, this court must interpret it according to legislative intent, and our review becomes an examination of the whole act. Simpson v. Cavalry SPV I, LLC, 2014 Ark. 363, 440 S.W.3d 335. In reviewing the Act in its entirety, this court will reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Id.
In examining other sections of the Statutory Foreclosure Act to determine legislative intent for section 18-50-117, we note that section 18-50-102 also employs the phrase “authorized to do business.” As initially enacted, section 18-50-102 (1987) provided,
(a) A trustee of a deed of trust shall be any:
(2) Bank or savings and loan association authorized to do business under the |filaws of Arkansas or those of the United States.
Ark. Code Ann. § 18-50-102(a)(2)(empha-sis added). Section 18-50-102(a)(2) allows an entity to be a trustee under the Statutory Foreclosure Act if the trustee is authorized to do business under the laws of the United States. The Dickinsons, however, argue that authorization to do business under the laws of the United States is insufficient for purposes of section 18-50-117. Thus, if we were to adopt the Dickin-sons’ argument, an entity authorized to do business under the laws of the United States but not registered in Arkansas could be a trustee in a nonjudicial foreclosure under section 18-50-102 but simultaneously could not avail itself of the procedures of the Statutory Foreclosure Act according to section 18-50-117. However, the remaining sections of the Statutory Foreclosure Act contain provisions expressly directed at the trustee regarding, for example, publication of notice (Ark. Code Ann. § 18-50-105) and application of the proceeds of sale (Ark. Code Ann. § 18-50-109). To hold that an entity could be appointed trustee under section 18-50-102 but then prohibited from utilizing other sections of the statute governing actions of the trustee is an inconsistent and inharmonious reading of the provisions. Respondents’ position, that section 18-50-117 allows authorization under the laws of the United States, is the most cogent interpretation because it affords a consistent meaning to the phrase “authorized to do business” in both sections of the statute.
The Eighth Circuit Court of Appeals has recently examined this issue and agreed that authorization under federal law is sufficient to comply with section 18-50-117. The Eighth Circuit compared the language of section 18-50-117 to section 18-50-102:
| (¡Section 18-50-102(a) determines who may serve as a trustee in a non judicial foreclosure proceeding. As initially enacted, it allowed any “[bjank or savings and loan authorized to do business under the laws of Arkansas or those of the United States ” to be a trustee. Ark. Code Ann. § 18-50-102(a)(2) (2003) (emphasis added). Construing §' 18-50-117 to allow only state law to authorize banks to do business in Arkansas would mean a national bank could be a trustee in a non judicial foreclosure without pri- or registration, but simultaneously could not avail itself of the benefits of the SFA. The homeowners see no inconsistency here. We believe the homeowners misread the statute. Section 18-50-117 requires authorization for an entity to avail itself of “the procedures under this chapter,” not just initiating a non judicial foreclosure. Because the appointment of a trustee is part of the “procedures” contained in the SFA, the two provisions are inconsistent. Reading the statute in the manner JPMorgan suggests — in other words, an entity may initiate a non judicial foreclosure pursuant to Arkansas law or the laws of the United States — produces this consistency because the phrase “authorized to do business” means the same thing in different parts of the statute. It is therefore a preferable interpretation.
JPMorgan Chase Bank, N.A. v. Johnson, 719 F.3d 1010, 1016 (8th Cir.2013). The Eighth Circuit also looked to other related statutes to discern the legislative intent for section 18-50-117:
Other Arkansas banking statutes lead to a similar conclusion. The Wingo Act provides a foreign corporation may become authorized to transact business in Arkansas by obtaining a certificate of authority from the Secretary of State. Ark. Code Ann. § 4-27-1501(a). Elsewhere, the Branching Act requires an out-of-state bank to file an application with the Arkansas Bank Commissioner before it may open a branch in Arkansas. Id. § 23-48-1001(a). These statutes, which contain express state certification requirements, demonstrate the General Assembly is capable of articulating a certification requirement when it desires one. Yet the SFA contains none. Arkansas courts presume the General Assembly has in mind previous statutes relating to the same subject matter when it enacts a new statute. See Cousins v. Dennis, 298 Ark. 310, 767 S.W.2d 296, 298 (1989). And when the General Assembly has demonstrated the ability to include qualifying statutory language in a statute, but chooses not to do so in a particular statute, Arkansas courts infer the omission was deliberate and evidences a different legislative intent. See Bush v. State, 338 Ark. 772, 2 S.W.3d 761, 764 (1999) (holding the legislature’s approval of granting a defendant credit against his sentence in a statute governing post-sentence 17electronic monitoring by the Department of Correction, but omission of that approval in a separate statute relating to pre-trial electronic monitoring, “is evidence that the legislature did not intend for credit to be given for electronic monitoring while a defendant is awaiting trial”); Chatelain v. Kelley, 322 Ark. 517, 910 S.W.2d 215, 219 (1995) (“[T]he General Assembly knows how to include proper terminology or exclude it in accordance with its intent....”), overruled on other grounds by Aka v. Jefferson Hosp. Ass’n, 344 Ark. 627, 42 S.W.3d 508 (2001); Hales v. State, 299 Ark. 93, 771 S.W.2d 285, 286 (1989). Applying these principles to the present matter, we must presume the General Assembly did not intend to include in § 18-50-117 the exclusive state registration it has insisted upon in other statutes.
Id. at 1016-17. Decisions of the federal circuit courts are not binding on this court, but we may choose to follow their rationale if we find it persuasive. Larry Hobbs Farm, Equip., Inc. v. CNH Am., LLC, 375 Ark. 379, 291 S.W.3d 190 (2009). In this case, we find the Eighth Circuit’s reasoning to be the correct interpretation of the statutory language.
Having established that section 18-50-117 does not require an entity to be licensed under Arkansas law, the only remaining issue in the certified question is whether Fannie Mae is authorized to do business in this state. The Dickinsons argue that the Federal National Mortgage Association Charter Act, 12 U.S.C. §§ 1716 et seq., does not provide Fannie Mae with enumerated or implied powers to conduct statutory foreclosures. The Dickinsons’ reading is too narrow. The issue is not whether the charter grants Fannie Mae explicit powers to foreclose but whether it authorizes Fannie Mae to do business in this state, which it unquestionably does. According to the charter, Fannie Mae has the power to “purchase, service, sell, or otherwise deal in any mortgages” 12 U.S.C. § 1717. Additionally, the charter states that Fannie Mae is authorized to “conduct its business without regard to any qualification or similar statute in any State.” 12 U.S.C. § 1723(a). The charter clearly | scontemplates that Fannie Mae will engage in the business of dealing in mortgages in any state. Such authorization is sufficient to satisfy the requirements of section 18-50-117. Thus, Fannie Mae satisfies the Statutory Foreclosure Act’s authorized-to-do-business requirement contained in section 18-50-117.
Certified question answered.
Hart, J., dissents.
. The General Assembly has subsequently amended section 18-50-102 effective July 27, 2011, but no party has argued that the amendment applies to this case. Act of Mar. 31, 2011, No. 901 § 2, 2011 Ark. Acts 3615, 3617. | [
124,
-21,
-8,
108,
72,
-32,
24,
-118,
-37,
-25,
35,
83,
111,
-20,
21,
73,
-91,
47,
97,
73,
-43,
-78,
39,
74,
-46,
-14,
-15,
-57,
-80,
125,
-12,
-97,
-56,
0,
-56,
-43,
-126,
-88,
-49,
24,
6,
11,
27,
53,
-3,
-60,
48,
39,
82,
77,
85,
36,
-15,
53,
29,
74,
8,
46,
-51,
45,
88,
112,
-117,
13,
127,
5,
-111,
100,
-110,
13,
104,
10,
-108,
17,
1,
-23,
82,
38,
-58,
36,
75,
27,
8,
52,
98,
-128,
16,
-49,
-68,
-92,
14,
-49,
-115,
-122,
-78,
89,
35,
9,
-65,
-99,
92,
22,
6,
-4,
-18,
-59,
25,
108,
-113,
-18,
-42,
-95,
-115,
113,
25,
11,
-26,
7,
-96,
113,
-54,
-26,
127,
70,
50,
27,
-50,
-15
] |
Cockrill, C. J.
Govan, who had been county treasurer of Lee county, was indicted for embezzling funds that came to his possession by virtue of his official employment, There were several counts in the indictment though only one offense was intended to be charged. The first count was for converting the funds to his own use; the second, for using them for his private purpose, and a third, for permitting them to be used in the mercantile business of B. M. Govan & Co., a copartnership composed of B. M. Govan and another. The indictment conformed to the language of the statute as to each of these specifications. There was no allegation that a settlement of Govan’s accounts as treasurer had been made by the county court, or that he had failed or omitted to pay an amount found due from him as treasurer by the court, and the indictment was dismissed upon demurrer.
i. indict-embezzle-m © n t by offi-
The prosecution is under the act of July 9, 1868, as amended February 20,1883. The first section of the original act is as follows : “Every officer of the state, city, county or township, wbo is or has been employed in the collection of the public revenue, or who has any public funds in his hands, and who has converted to his own use or otherwise misapplied any part of the money or funds collected by him, or which may have come to his possession by virtue of his employment, and every such officer who shall fail or omit to pay the amount due from him upon settlement directed in this act by the judges of the county court, shall, on conviction, be fined not lees than $500, and be imprisoned in the penitentiary not less than one year, nor more than five.” Gantt’s Digest, sec. 1371.
The subsequent sections confer upon the county courts the power to cause settlements to be made by officers holding the public revenue, and make it the duty of the court, or its clerk, to report to the grand jury any unpaid balance that is found due from any such officer; and the grand jury is directed to investigate the matter, and to indict the officer for embezzlement if the facts justify it.
The amendment, or rather the act as amended, is entitled, “An act for the better protection of the public revenue,” and is as follows: “Every officer of the state, county, city, incorporated town or township, who has taken an oath of office, as required by law, employed in the collection of the public revenue, or who may have any public funds in his • hands, who shall convert the same to his own use, or use it in any manner for his private purposes, or shall loan, or permit any other person to use, or otherwise misapply, any part of the money or funds so collected by him, or which may have come to his possession by virtue of his employment, and every such officer who shall fail or omit to pay the amount found due by him upon settlement, shall be deemed guilty of a felony, and, on conviction thereof, shall be imprisoned in the penitentiary not less than five (5) nor more than twenty-one years (21) years.” Mansfield’s Digest, sec. 1643.
Prior to the passage of this amendment it had been ruled by this court in Huunicut’s case, in 35 Ark., 562, that that portion of the act which declares that “every officer who shall fail or omit to pay the amount found due by him upon setttlement, shall be guilty of a felony,” did not of itself create an offense. It was there declared that ■an indictment under the original act which alleged a settlement of the officer’s accounts by the county court, and a failure by him to comply therewith, but which charged no misapplication of the funds, charged no offense. There is nothing in the amendment to affect this construction.
The question now is whether the misapplication without the judicial ascertainment of a balance due, is an offense.
We think the ease above quoted answers the question in the negative. The clause of the statute relative to the settlement and failure to pay the amount found due, must be read as coupled with each of those that precede it, otherwise, according to that case, it is left without force in the statute. The phrase, “every such officer,” in this clause must refer then to one of the officers named, who has converted the public funds to his own use, used them for his private purpose, permitted others to so use them, or misapplied them in some other manner.
It would certainly be competent for the legislature to make it embezzlement for any officer to use public funds in his private business, or to misappropriate them in any way, whether he should afterwards settle his accounts or not. But the purpose of this act seems to have been to protect the revenue, as the title of the amendment declares, rather than to punish the offender. ,
Other enactments provide for removal from office and the recovery of penalties for any misuse of the public funds, whether they are restored by the officer or not. (Mansfield's Digest, secs. 5892, 5853.) But the evident design of the statute against embezzlement is to give the delinquent the opportunity to escape the severer penalty by reimbursing the public, in compliance with the order of the court that settles his accounts before prosecution is begun against him.
The indictment was defective in not alleging a settlement of the treasurer’s accounts, by the county court, and a failure-by him to pay over the amount found due.
The judgment is affirmed. | [
-80,
112,
-4,
-4,
42,
-96,
42,
42,
-53,
-79,
-31,
95,
-47,
-28,
9,
37,
-15,
33,
117,
91,
-63,
-77,
59,
107,
50,
-109,
-51,
-57,
54,
77,
-4,
-33,
76,
-78,
72,
-35,
6,
70,
99,
-40,
-122,
9,
41,
-64,
95,
64,
32,
29,
35,
15,
117,
-99,
-94,
42,
60,
123,
73,
44,
-35,
-85,
-64,
-29,
-82,
-123,
103,
29,
-111,
111,
-103,
3,
-8,
62,
-102,
17,
0,
-6,
-5,
-106,
6,
-44,
13,
-51,
-119,
96,
2,
17,
-27,
-67,
36,
-87,
14,
-73,
13,
-121,
-105,
-31,
91,
44,
-105,
-99,
86,
16,
7,
-12,
-95,
-123,
17,
100,
-125,
-118,
-76,
-105,
12,
108,
30,
51,
-1,
-95,
24,
65,
-52,
34,
93,
-91,
58,
27,
20,
-31
] |
Battle, J.
This action is founded on a contract made an(l entered into by the defendant, the Hot Springs Railroad company, as the party of the first part, and the plaintiff, P. J. Maher, as the party of the second part, in which they agree as follows :
Contracts of^rélree! Susive!011’
“ That for and in consideration of the payments hereinafter stipulated, to be well and truly made by the party of the first part, the party of the second part hereby agrees that he will build, or cause to be built, construct and grade a certain portion of the proposed change or alteration of the line of the Hot Springs Railroad on the west slope of Sulphur Hill, on said line of railroad, commencing at or near to Station One, on said new line, and running to and terminatinng at or near Station No. Ten, on said new line.
“In consideration of the faithful performance of the above stipulated work, completed to the satisfaction of the engineer in charge of said work, for and in behalf of said railroad company, said party of the first part agrees to pay to the party of the second part the sum of twenty cents per cubic yard for all earth excavation,; and fifty cents per cubic yard for all loose rock excavation, and one dollar per cubic yard for all solid rock excavation, and to pay for said work on semi-monthly estimates, in full for all work done at time of making estimate, less 10 per cent., which shall be reserved from each estimate until said contract shall have been fully completed and complied with by the party of the second part.
“ It is mutually agreed by and between the parties hereunto that all questions relating to quantity, quality or manner of construction of said above stipulated work shall be decided by the engineer in charge of said work, and his decision shall be final and conclusive on all matters pertaining to this contract. The party of the second part agrees to commence said work on or about the 4th day of August, 1884, and to complete the same within sixty working days thereafter.”
G-. M. French, the engineer in charge of the work mentioned in the contract, made an estimate of the quantity and quality of the work done by plaintiff and the amount due him therefor under the contract, and ascertained that there was due $1847.15, of which defendant had paid $1836.41, leaving due $10.74. Plaintiff refused to abide by this estimate, but insisting that it was wrong and erroneous, sued for the amount he contends is due him according to the contract.
The evidence introduced in the trial as to the quantity and quality of the work done under the contract is conflicting. Plaintiff was allowed to prove, over the objection of defendant, how many hands were employed in doing the work sued for, the number of days they were employed in the work, and the amount of each kind of the work done they could do in a day.
The court instructed the jury, at the request of plaintiff’, over the objections of defendant, as follows:
2. “ If the jury believe that the decision of French was arrived at or obtained by any fraudulent practice, suppression of evidence, or gross error or mistake, they will find for the plaintiff what they believe from the evidence he is entitled to recover.
3. “Fraud is the wrongful and intentional deprivation of a person of his legal rights.
5. “Eo act of French which was done fraudulently or in gross mistake of fact in his estimate, will bind Maher.”
The defendant asked for the following instructions :
1. “ The plaintiff and defendant having, by their contract, selected the engineer in charge of the work to be done under it, to estimate the work and decide all questions pertaining to it, and agreed that his decision should be final, his classification of the work done- under said contract is conclusive upon them.
2. “ To warrant you in finding for the plaintiff on account of any work done by him under the contract read in evidence in this case, it is necessary that the evidence clearly establish in your opinion that the engineer in charge of the work intentionally made a false classification of the-work.
.8 “ If you believe from the evidence in this case, that there is no uniform and fixed rule among engineers in classifying rock removed in excavating, and that some engineers would have classified the rock excavated by plaintiff’, as the engineer in charge of said work did, while others would have classified it differently, the classification and estimate of said engineer in charge must betaken as conclusive and binding upon the plaintiff.
4. “ If you believe from the evidence that it is impracticable and impossible to make a correct survey and cross-section of the work performed by the plaintiff under the contract, after the excavation has been completed, so as to estimate correctly the amount of work done, you • are instructed that you cannot take into consideration, in arriving at your verdict, any estimate of work done, which has been made from cross-sections taken after the excavation; and the estimate and classification as made by the defendant’s engineer under the. contract sued on, is binding and conclusive upon the plaintiff, unless you find from' the evidence that said estimate is false, fraudulent and intentionally incorrect.”
The court refused to give these instructions as asked, but modified the first by adding to it, at its conclusion, the following words: “Unless it clearly appears that he was
mistaken in such classification, or that the same was fraudulently made by him.” And modified the second by adding, “or that he was mistaken in such classification,” and the third by adding, “if made honestly and in good faith,” and gave the first, second and third as modified, and refused the fourth.
The jury returned a verdict in favor of plaintiff for $425.40. Defendant filed a motion for a new trial, which was overruled, and he saved exceptions, and appealed.
The contract sued on provides : ‘-That all questions relating to quantity, quality or manner of construction of the work stipulated to be done shall be decided by the engineer in charge of said work, and his decisions shall be final and conclusive on all matters pertaining to the contract.”
By these terms of the contract both parties agree to abide the decisions of the engineer in charge of the work as to the quantity and qualityof the work done under the contract. They are clear and precise, leaving no room for doubt as to the intention of the contracting parties; and seems to be susceptible of no other interpretation than that the estimates of the engineer, as to the quantity and •quality of the work done were intended to be final and •conclusive. They show that both parties considered the possibility of disputes arising between them in reference to the execution of the contract, and that to prevent the interests of either being put in peril by disputes as to any of the matters covered by their contract, or in reference to the quantity or quality of the work done under it, .or the compensation which the plaintiff might be entitled to demand, expressly stipulated that the engineer’s decision should be final and conclusive. While both parties well knew the engineer might err, yet neither reserved the right to revise his decisions and estimates for mere errors or mistakes upon his part; but while they saw fit to risk his estimates and decisions, it is presumed that the estimates and decisions on which they relied and agreed to abide, were estimates and decisions to be made in good faith, and the exercise of an honest judgment. It would follow, then, that in the absence of fraud, or such gross mistakes as would necessarily imply bad faith, or a failure to exercise an honest judgment, the estimates of the engineer are conclusive, and otherwise not. Kihlbery v. U. S., 97 U. S., 398; Martinbarg Potomac R. R. v. March, 114. U. S., 549; Sweeny v. U. S., 109 U. S., 618; Baltimore & Ohio R. R. Co. v. Polly, Woods & Co., 14 Grat., 459.
The instructions of the court were well calculated to mislead the jury, by leading them to believe that the estimates of the engineer as to the amount and character of the work done were not binding on either party if there were any mistakes in them. They were not informed by the court that the errors or mistakes which would avoid the decisions .or estimates of the engineer must have been •so gross, or of such a nature, as necessarily implied bad faith upon the part of the engineer.
There was no error in allowing the evidence objected to by appellant to goto the jury. It tended to show the amount and character of the work done by appellee, and was admissible for that purpose and no other.
The judgment of the court below is therefore reversed, and this cause is remanded with instructions to the court to grant appellant a new trial. | [
-43,
121,
-72,
-1,
-118,
96,
56,
-104,
121,
-93,
101,
-33,
-83,
-55,
0,
49,
-25,
121,
81,
107,
116,
-93,
7,
18,
-46,
-45,
113,
-59,
-77,
77,
-92,
-42,
76,
0,
-54,
93,
-61,
74,
-51,
94,
-114,
-88,
-5,
-32,
83,
96,
48,
127,
80,
15,
53,
46,
-13,
40,
16,
-5,
77,
62,
-1,
41,
-61,
121,
-106,
-59,
61,
6,
-96,
34,
-99,
3,
-56,
60,
-104,
53,
0,
-104,
115,
-74,
-42,
116,
65,
-5,
9,
98,
99,
35,
37,
-25,
-100,
-100,
5,
-102,
-119,
-92,
-31,
9,
35,
77,
-66,
-107,
94,
20,
-121,
122,
-27,
5,
89,
60,
3,
-53,
-106,
98,
31,
44,
-100,
7,
-21,
3,
36,
116,
-54,
-78,
76,
79,
50,
-101,
-81,
-72
] |
Smith, J.
The indictment in this case contained four counts, the first two of which are as follows:
“The grand jury of Arkansas county, in the name and by the authority of the state of Arkansas, accuse L. S. Hunter and W. F. Ball of the crime of forgery, committed as follows: The said L. S. Hunter and W. F. Ball, in the county and state aforesaid, on the 14th day of July, A. D. 1885, did then and there willfully, unlawfully and feloniously, fraudulently and falsely make, forge and counterfeit a certain paper writing, and indorse and sign upon the back of said paper writing the name of H. H. Higgins, without his knowledge or consent; said writing purporting to be a school warrant of School District No. 8, of Arkansas county, Arkansas, drawn upon the treasurer of Arkansas county, Arkansas, payable to H. H. Higgins or order, for the sum of sixty dollars, for teaching school, out of the school fund of said district, dated July 14th, 1885, and numbered 8, signed by the said L. S. Hunter and W. F. Ball, as directors of said district, which said false and forged warrant is in words and figures, to wit:
‘ No. 3.
‘District School Fund No. 8., July 14, 1885.
‘ Treasurer of Arkansas County, Arkansas:
‘Pay to H. H. Higgins, or order, the sum of sixty dollars, for teaching school, out of the school fund.
‘L. S. Hunter,
‘ W. F. Ball, Directors’
“Indorsed on back—
‘ 7-14 — ’85.- Please pay W. F. Ball.
‘ H. H. Higgins.
‘ Not paid for want of funds. July 15,1885. Registered.
‘R. Scanland, County Treasurer.’
“And the false and fraudulent making, forging and counterfeiting of the school warrant aforesaid, and signing the name of the said H, H. Higgins on the back of the same without his knowledge or consent, by the said L. S. Hunter and W. F. Ball, as directors, was done with the felonious and fraudulent intent then and there to cheat and defraud the said School District No. 8, of Arkansas county, Arkansas, out of the sixty dollars aforesaid, to the great damage and injury of said School District No. 8, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Arkansas.
“II. The grand jury of Arkansas county, in the name and by the authority of the state of Arkansas, do further accuse L. S. Hunter and W. F. Ball of the crime of forgery, committed as follows, to wit: The said L. S. Hunter and W. F. Ball, in the county and state aforesaid, on the 4th day of July, A. D. 1885, did then and there willfully, unlawfully and feloniously, wickedly, frauduently and falsely utter and publish as true and genuine, with the felonious intent to injure, defraud and cheat the said School District No. 8, of Arkansas county, Arkansas (and L. C. Smith, to whom they sold said warrant), a certain false, forged and counterfeited paper writing for the payment of money, to wit: For the payment of sixty dollars purporting to be a school warrant of School District No. 8, of Arkansas county, Arkansas, payable to H. H. Higgins, or order, for the sum of sixty dollars, for teaching school, out of the school fund of said district, dated July 14th, 1885, and numbered 3, and indorsed on the back of the same the name of the said H. H. Higgins, without his knowledge or consent, said warrant signed by the said L. S. Hunter and W. F. Ball, as directors, which said false and forged warrant is in words and figures to wit:
‘ No. 3.
‘ District School Fund, District No. 8, July 14th, 1885. ‘ Treasurer of Arkansas County,, Arkansas:
‘ Pay to H. H. Higgins, or order, the sum of sixty dollars, for teaching school, out of the school fund.
‘ L. S. Hunter,
‘ W.F. Ball,Directors’
“ Indorsed on back—
‘ July 14th, 1885. Please pay W. F. Ball.
‘H. H. Higgins.
‘ Registered. Not paid for want of funds.
‘ R. Scanland, County Treasurer.’
“And the said L. S. Hunter, and the said W-. F. Ball, at the said time they so uttered and published as true and genuine to the said L. C. Smith, the said last mentioned false, forged and counterfeited warrant for the payment of money as aforesaid, indorsed as aforesaid, then and there well knew the same to be false, forged and counterfeited, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Arkansas.”
The third count is similar to the first, and the fourth is similar to the second, the only difference being in the alie gations respecting the persons whom it was intended to defraud. This indictment wa3 found on the 19th of September, 1885.
And on the 22d of the same month, the following indictment was also returned into court:
“ The grand jury of Arkansas county, in the name and by the authority of the state of Arkansas, accuse L. S. Hunter and W. F. Ball of the crime of malfeasance in office, committed as follows, to wit: The said L. S. Hunter and W. F. Ball, in the county and state aforesaid, on the 17th day of September, A. D. 1885, were then and there the duly elected, qualified and acting school directors of School District No. 8, in Arkansas county, Arkansas, and as such directors they made a contract with and hired one H. H. Higgins to teach school in said district for the period of three months, commencing May 25th, 1885, for the sum of sixty dollars per month, and the said H. H. Higgins did teach said school for the period of three months and nine days, the said nine days being taught at the request of said directors; and the said H. H. Higgins did receive, at the hands of the directors, three several warrants on the treasurer of Arkansas county, Arkansas, two of said warrants for forty dollars each, and the other warrant for one hundred and fifteen dollars, for his services as teacher aforesaid; but said L. S. Hunter and W. F. Ball, directors as aforesaid, did fraudulently and corruptly make, forge and utter and publish as true and genuine a Gertain counterfeit warrant, which they drew on the treasurer of Arkansas county, Arkansas, for the sum of sixty dollars, in favor of said H. H. Higgins; all of which was done without the knowledge or consent of the said H. H. Higgins ; and to cover up the corrupt and fraudulent issuance of the sixty dollar warrant as aforesaid, the said L. S. Hunter and W. F. Ball then and there willfully, unlaw fully and corruptly tore out of the school directors’ record and form book of said School District No. 8, a leaf upon which were pages 49 and 50 of said book, which said pages 49 and 50 contained the original contract with H. H. Higgins to teach said school for the sum of sixty dollars per month, duly signed by said H. H. Higgins as teacher, and the said Ball and said Hunter as such directors; and the said L. S. Hunter and W. E. Ball did then and there unlawfully and corruptly put upon page 51 of said book a fraudulent contract with said H. H. Higgins, specifying the sum of eighty-five dollars per month as the sum to be paid him as such teacher, without the knowledge or consent of the said H. H. Higgins; all of which was done with the corrupt purpose aforesaid, contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Arkansas.”
Hunter having made his escape, Ball moved the court to quash the first indictment, under section SISO, of Mansfield’s Digest, which provides that, “If there shall be, at any one time, pending against the same defendant, two indictments for the same offense, or two indictments for the same matter, although charged as different offenses, the indictment first found shall be deemed to be suspended by such second indictment, and shall be quashed.”
In State v. Barkman, 7 Ark., 387, it was ruled that a party wishing to avail himself of the pendency of another indictment for the same offense, or other matter de hors the record, should do so by plea. But as our code of criminal procedure recognizes but three kinds of pleas (guilty, not guilty, and former conviction or acquittal, Mansfield’s Digest, sec. S17S), perhaps this defense, if the code does not by implication take it away, may be asserted by motion. It is obvious, however, that the indictments were for different matters, one being for the forgery of the indorsement upon a school wart-ant, and for the uttering of the paper so forged; the other being for mutilation of the directors’ record.
1. Indictment: For forging school warrant.
After a demurrer to the indictment had been everruled, the defendant interposed a motion that the state be required to elect upon which count it would proceed. The motion was denied, and after conviction the defendant moved to arrest the judgment. The indictment was not defective for failing to allege that the school district was a corporation. Every sehool district in the state is a corporation, expressly made so by section 6172, of Mansfield’s Digest. And it is never necessary'in pleading to aver a legal conclusion.
2. Same: Forgery and uttering forged instrument.
But the indictment charges two offenses, and the defendant was put upon trial for both at the same time. Forgery is one offense, and uttering a forged instrument as genuine, knowing it t© be false and forged, is another and distinct crime. A party might be convicted of either without being guilty of the other. Mr. Bishop (1 Cr. Pro., 3d Ed., sec. 449)i says that counts for these two offenses are often and properly joined. And Dr. Wharton, in his work on Criminal Pleading and Practice, 8th Ed., sec. 285, lays it down that offenses, though differing from each other, and varying in the punishment authorized to be inflicted for their perpetration, may be included in the same indictment, and the accused tried upon the several charges at the same time, provided the offenses be of the same general character, and provided the mode of trial is the same. Such was also our former practice. (Baker v. State, 4 Ark., 56; Orr v. State, 18 ib., 540; State v. Holland, 22 ib., 242.) But our Criminal Code has wrought a revolution in this respect. It enacts (.Mansfield’s Digest, sec. 2108) that “an indictment, except in cases mentioned in the next section, must charge but one offense; but, if it may have been committed in different modes and by different means, the indictment may allege the means and modes in the alternative.
Section 2109. The offenses named in each of the subdivisions of this section may be charged in one indictment.
First — Larceny, and knowingly receiving stolen money.
Second — Larceny, and obtaining money or property on false pretense.
Third — Larceny and embezzlement.
Fourth — Robbery and burglary.
Fifth — Robbery, and an assault with intent to rob.
Sixth — Passing or attempting to pass counterfeit money or bank notes, knowing them to be such, and having in possession counterfeit money or bank notes, knowing them to be such, with the intention of circulating the same.
The change in the rule has had its due effect given to it in State v. Brewer, 33 Ark., 176 (joinder of counts for an affray and for assault and battery); in State v. Lancaster, 36 Ark., 55 (uttering vulgar and profane language at the domicile of another and making violent threats against him there, with intent to insult or terrify him); in State v. Rhea, 38 Ark., 555 (several counts for gaming, without indicating that they were all intended to charge but one offense); and in State v. Morris, 45 Ark., 62, where it was •attempted to unite a count for exhibiting a gambling device with one for permitting it to be exhibited in- a house owned by the accused.
McClellan aPProved‘ ' '
We are not unmindful that in McClellan v. State, 32 Ark., 609, this court impliedly sanctioned, by passing over sub silentio, the joinder of counts for forging and uttering a forged instrument. But the attention of the court seems not to have been directed to the statute, which is plain in meaning and peremptory in its terms. That case is, on this point, disapproved. Compare State v. McCormick, 56 Iowa, 585, where the same question was directly presented and adjudged under statutory provisions in substance identical with ours.
Forgery i'n s t°r8udi* ti iu) t crimes.
It is scarcely necessary to say that the insertion of the severa,l counts can not be justified on the ground that they merely state the different modes and means by which the crjme may have been committed. The two crimes are separate and independent. The uttering of forged paper is a distinct and substantive fact, not necessary to be established on a prosecution for forgery; and vice versa.
3. change of venue: Former
There is only one other matter that we need discuss. __ Upon the prisoners application the venue was changed to Desha. And a jury was impaneled and sworn to try him upon the issue raised by his plea of not guilty. At this point it was discovered that the transcript of the record and proceedings of the court from which the cause had been removed were not authenticated by the seal of that court. And the jury was thereupon discharged, without the defendant’s consent. The transcript, it seems, was then withdrawn by direction of the presiding judge and placed in the hands of the sheriff of Arkansas county, with directions to procure the seal to be attached. This was done and the transcript was again filed in the Desha court. The defendant now pleaded former jeopardy. Upon the trial of this issue before a jury, the defendant offered to prove by the officer to whom the transcript had been intrusted, that the seal of the circuit court of Arkansas county had been put on in Lincoln county. But the court excluded the testimony. The jury were instructed that if they believed from the evidence that, at the time the first jury was sworn, the seal was not upon the transcript, the defendant had not been in jeopardy. And they found the issue against the prisoner, who was then tried before still another jury upon the plea of not guilty, and convicted, and sentenced to the penitentiary.
"When the order is made to change the venue, it is the duty of the clerk of the court in which the cause is pending to make out a transcript of the record and proceedings, and transmit the same, duly certified, under the seal of the court, to the clerk of the court to'which the cause is removed. Mansf. Dig., sec. 2204.
According to the previous decisions of this court, the jurisdiction of the Desha circuit court to try Ball’s case depended on the reception of the papers, accompanied by the record, under the seal of the court which transferred the cause. Consequently, if the seal of the circuit court of Arkansas county was lacking, Ball incurred no peril by the swearing of the first jury; for he could not have been legally convicted by that jury. Stone v. Robinson, 9 Ark., 469; Hadley v. State, 36 ib., 237; Haglin & Pope v. Rogers, 37 ib., 491; Burris v. State, 38 ib., 221.
The court committed no error-in refusing to allow the-defendant to adduce proof that the circuit clerk of Arkansas county had affixed the seal of his office outside of his own county. Such evidence would not have had the most, remote tendency to prove the issue joined. For if Ball had been in jeopardy of his liberty, it was by reason of the impaneling and swearing of the jury, and not by reason of what had afterwards occurred in the effort to remedy the defect.
The judgment must be reversed and the cause remanded,, with directions to require the state to make its election whether it will prosecute for the forgery or for the utterance of the forged paper.
The prosecuting attorney may be allowed to retain the first and third counts, or the second and fourth. | [
48,
-7,
-92,
127,
10,
-32,
42,
-70,
-77,
-127,
-96,
83,
-19,
68,
13,
113,
-31,
45,
-44,
97,
-27,
-73,
55,
3,
-78,
-13,
-3,
-41,
-78,
77,
-84,
-41,
95,
52,
-54,
93,
-122,
74,
-19,
88,
-114,
33,
-119,
-10,
127,
-64,
56,
37,
53,
7,
117,
-82,
-6,
43,
28,
75,
109,
46,
75,
-81,
64,
-13,
-112,
77,
-35,
22,
-111,
102,
-98,
77,
-64,
46,
-40,
53,
-116,
-8,
59,
-94,
2,
84,
13,
-119,
12,
96,
98,
17,
-107,
-105,
48,
-116,
62,
-73,
-103,
-89,
-110,
73,
99,
37,
-98,
-107,
119,
-48,
7,
118,
-31,
101,
17,
104,
41,
-18,
-80,
-109,
92,
41,
-100,
59,
-13,
63,
48,
98,
-51,
34,
93,
69,
51,
-69,
-50,
-75
] |
Battle, J.
We find no error prejudicial to appellants in so much of the decree of the court below as is in favor of appellee, Bratton. The cause of action set forth in the cross-complaint of appellee, Barnett, cannot properly be made the subject matter of a cross-complaint in an action like this. A cross-complaint against a co-defendant, which seeks relief by way of damages for a breach of covenant and presents no grounds of equitable cognizance, will not be entertained. Trapnall v. Hill, 31 Ark., 345.
So much of the decree of the court below as is based on the cross-complaint of Barnett is, therefore, reversed. A ■decree will be entered here in favor of appellants against Barnett, dismissing the cross-complaint of Barnett without prejudice, and for the costs incurred by reason thereof, and this appeal. In other respects the decree of the court below is affirmed. | [
-78,
-8,
-43,
-83,
10,
98,
34,
-90,
67,
-96,
103,
-45,
-19,
-54,
-108,
101,
-29,
77,
81,
123,
85,
-73,
23,
34,
-14,
-45,
113,
85,
-79,
-19,
102,
-10,
92,
120,
-54,
93,
67,
66,
-123,
26,
-58,
14,
10,
104,
-47,
-50,
48,
63,
92,
15,
97,
-121,
-69,
44,
16,
-61,
105,
40,
-21,
49,
80,
17,
-98,
13,
95,
4,
-79,
39,
-104,
5,
94,
56,
-112,
48,
3,
-20,
115,
-74,
-126,
116,
107,
27,
-119,
34,
98,
35,
-27,
-25,
-72,
-104,
47,
62,
-99,
38,
-110,
56,
105,
97,
-74,
-99,
68,
52,
-57,
122,
-4,
-115,
14,
108,
1,
-49,
-106,
-73,
-49,
20,
-80,
7,
-17,
51,
49,
112,
-51,
-30,
93,
-25,
16,
-37,
60,
-100
] |
Smith, J.
Grider and his wife were sued for a balance due on a promissory note made by them to the plaintiffs in the year 1881. The husband suffered a default to be taken against him, but Mrs. Grider pleaded her coverture. An amended complaint was then filed, stating that she had a separate estate, out of which the debt should be paid, and that it was her intention to charge said estate by the execution of the note. The cause, as against her, was transferred to equity upon motion of plaintiffs. And Mrs. Grider denied in her answer that it was her intention to bind her separate property, or that such was the legal effect of the instrument.
The proofs showed that Mrs. Grider, previously to her marriage, was indebted to the plaintiffs, who were merchants, in the sum of $80.90, and that, after her marriage, goods were sold to her husband, mother and others of the same household, of the value of some $500. These goods were charged to W. H. and Sue M. Grider, but it did not appear that Mrs. Grider had authorized any of the persons to whom they were delivered to purchase upon her credit. The plaintiff's had brought an action against the husband and wife on this account, but had afterwards dismissed it, upon the agreement with the husband and his attorneys, and in consideration of the execution and delivery of the note now in suit. Mrs. Grider was not a party to this arrangement, and had no communication with the plaintiffs, or any agent of theirs, on the subject; but had signed the note at her husband’s request. Grider had afterwards paid $150 on the note.
At the hearing the complaint was dismissed.
If we recur to the origin of the debt, and if we admit that Mrs. Grider remained liable, after her marriage, for that portion of it which was contracted by her dum sola, yet her husband, who was also liable, has made a sufficient payment to extinguish that. So the unpaid balance upon the note must be considered to represent articles of merchandise, which the husband furnished to his family, and which it was his duty to furnish. In this view the case is controlled by Collins v. Underwood, 33 Ark., 265. Compare Walker v. Jessup, 43 ib., 163; Yale v. Deaderer, 18 N. Y., 265; S. C., 22 ib., 450; Manhattan B. & M. Co. v. Thompson, 58 N. Y., 80.
Challer v. Temple, 39 Ark., 238, has no bearing. That case merely decides that since the act of April 28, 1873 (Mansf. Dig., secs. 4625, 4630), a judgment against a married woman, who has not pleaded her coverture, is not void, notwithstanding the contract upon which it was rendered was, in its origin, not binding upon her; but, on the contrary, is enforceable against her separate estate, and a court of chancery will not interfere.
Decree affirmed. | [
-110,
120,
-104,
-34,
-54,
32,
-88,
-102,
-58,
-64,
-75,
-41,
-23,
67,
16,
109,
100,
121,
113,
106,
-73,
-77,
47,
67,
-14,
-77,
-71,
-99,
-72,
-51,
-19,
-41,
76,
32,
98,
-43,
111,
-118,
-63,
-72,
-50,
-128,
-119,
-20,
-7,
-64,
48,
107,
80,
73,
117,
-122,
-13,
46,
61,
79,
104,
46,
111,
41,
-16,
-80,
-67,
-124,
127,
30,
-109,
103,
-68,
69,
72,
14,
-128,
21,
0,
-24,
59,
-90,
-122,
116,
77,
-99,
1,
98,
102,
0,
37,
-3,
-112,
-120,
39,
-14,
29,
-121,
-79,
88,
11,
9,
-66,
-99,
109,
80,
-90,
-2,
-12,
29,
20,
104,
3,
-86,
-42,
-79,
15,
114,
-100,
-125,
-25,
-94,
33,
97,
-49,
9,
93,
103,
123,
-101,
-114,
-109
] |
Smith, J.
This action was begun by filing with the mayor the following account:
R. T. Banks, In account with Corporation of Monticello, 1885, May 20.
To building pavement in front of buildings on block 21, lots 4 and 5, in the town of Monticello, by authority of the ordinance hereto attached, $50.
The ordinance referred to is in these words:
“Each and every person, the owner of any occupied lot, or part of lot, or block, upon the public square, shall be required to pave the street in front thereof, in workmanlike manner, and keep the same in good repair; and if any person shall refuse to comply with this ordinance, such pavement shall be made at the expense of the owner of such property; which expense, with ten per cent thereon, may be recovered from such owner by an action of debt, brought in the name of the corporation, before the mayor.”
This ordinance was declared to be invalid both by the mayor and by the circuit court, on appeal. And so the town took nothing by its suit. The only legislative enactment which is relied on as giving the town council power to pass such an ordinance, is section 760, of Mansfield’s Digest. By this section cities and towns have power, among other things, to improve streets and to keep them in order and repair, and to assess and collect a charge on the adjacent lot owner, for the purpose of defraying the expense of such improvements and repairs, in proportion to the value of the lot as assessed for taxation under the general law of the state.
The power to pave, at the expense of the adjacent owner, seems to have been exercised without regard to the limitation imposed; for the ordinance makes no reference to any assessment or valuation of the property.
It was held in Peay v. Little Rock, 32 Ark., 31, that municipal assessments for the improvement of streets in a. city, must be ad valorem and not according to frontage.
The ordinance also violates the constitutional principle of uniformity in the imposition of the burden; vacant lots similarly situated being exempt.
Judgment affirmed. | [
-12,
121,
-76,
-36,
91,
64,
24,
-106,
89,
-87,
-75,
-33,
-17,
-56,
20,
65,
-93,
125,
81,
43,
-27,
-77,
71,
98,
-94,
-13,
-1,
93,
-68,
77,
-28,
-73,
108,
53,
-54,
-99,
7,
-26,
75,
-36,
6,
-91,
11,
77,
-39,
64,
52,
106,
50,
79,
81,
-113,
-13,
40,
24,
-61,
104,
44,
73,
40,
-7,
-14,
-68,
-116,
127,
7,
-111,
116,
-104,
-121,
-40,
8,
-104,
49,
12,
-24,
119,
-90,
22,
102,
77,
-39,
8,
42,
98,
1,
33,
-1,
-104,
-115,
14,
-42,
-115,
-92,
-78,
49,
34,
15,
-66,
-108,
109,
0,
71,
-6,
102,
-123,
89,
44,
-113,
-114,
-14,
-79,
-113,
-72,
-108,
65,
-17,
11,
48,
113,
-50,
-118,
95,
-49,
51,
91,
22,
-63
] |
Smoote, Special Judge.
This is a suit in equity by appellant, Emma Hankins, against appellees, John D. Layne and others, to surcharge and falsify the settlements of said John D. Layne, as the executor of Benjamin H. Layne, deceased, for alleged frauds therein, and for the correction of other alleged frauds of said executor in the course of administration, and for partition of the lands of the estate of said deceased.
It is stated in the complaint that Benjamin EL Layne died in Little River county, in 1866, after making his last will and testament, in which the appellee, John D. Layne,. was named as executor. That the estate of said deceased' consisted of valuable real and personal property, and that said John D. Layne qualified as executor, and had letters-testamentary granted to him in August, 1866; and as-such executor, about a year thereafter, filed an inventoi’y of some choses in action; that there was a large amount of personal property other than said choses in action of which no inventory or appraisement was ever filed; that said executor had filed three settlements, two of which’ had been confirmed, the first on the 14th of June, 1870, and the second on the 24th of May, 1871, and that the-third is still pending on exceptions in the probate court; that said executor had taken fraudulent credits in said second and third settlements, which are particularly specified, but which, from the view we take of the case, we-do not deem it necessary to set out here. And it is further charged that said executor has converted to his own use, and fraudulently failed to charge himself with the personal property omitted to be inventoried and appraised, and has further fraudulently failed to charge himself with other-sums which came to his hands during his executorship, and for rents collected by him, and the like.
The complaint further charges that there are large amounts of lands belonging to said estate which are particularly described, and that said executor fraudulently suffered a considerable part of them to be sold for taxes, and, in collusion with one Stocker, had him to buy in some of them, and in furtherance of said collusion had said Stocker to convey them to said executor’s wife, who-is a party defendant, for the use and benefit of said executor ; and that said executor bought in for his own use andi in his own name others of said lands, knowing them to belong to the estate, and that the plaintiff has become largely interested therein by the purchase of shares.
The complaint further states that said executor has been removed, and one D. C. Hankins appointed administrator de bonis non in his place, and that all debts against the estate have been paid off in full.
The complaint was demurred to generally and for want of jurisdiction. The demurrer was sustained and the complaint dismissed, and the case has been brought here by appeal.
If it is determined that the complaint states a good cause of action, over which the chancery court has jurisdiction, then it should not have been dismissed, as to that, upon demurrer.
admihistration: jurtsdioEquity ni.
2 When “eases
The extent to which a court of chancery has jurisdic-1. . . . tion to interfere, for the purpose of correcting frauds and errors arising in the management of estates in course of administration in the courts of probate, is well settled. It cannot lift an estate out of a probate court and proceed to administer it in equity. It cannot even interfere to correct errors and irregularities where actual fraud is not alleged and shown, unless they are so gross and reckless as to make the inference of fraud necessary to the purposes of justice; nor can it take upon itself to correct frauds in unconfirmed settlements. But it can interpose to correct frauds in confirmed settlements, and other frauds and gross mistakes in the course of administration not within, or having passed from, the jurisdiction of the probate court, and also to prevent impending irreparable injury where the probate court cannot give effectual relief. But the jurisdiction of the chancery court ceases when the special matter for which that juridietion has been invoked has been disposed of. As a general rule, when that is done the matter should be sent back to the probate court with instructions if necessary. There may be, perhaps, exceptional cases, where the court of chancery might retain the matter for final disposition, such as are indicated in Reinhardt v. Qartrell cited below, and others like them. These conclusions have been reached from an examination and consideration of á long and uniform ■course of decisions heretofore rendered by this court. See Moren v. McCowen, 23 Ark., 93; Reinhardt v. Gartrell, 33 ib.,727; West and Wife v. Waddell, ib., 575; Shegogg v. Perkins, 34 ib., 117; Jones v. Graham, 36 ib., 383; Jackson v. McNabb, 39 ib., 111; Trimble and Wife v. James, 40 ib., 393.
We will now proceed to dispose of the questions here involved under the principles we have adduced from the foregoing authorities, and others to which it may be necessary to refer incidentally.
The fraudulent credits alleged in the second settlement (which had been confirmed when this suit was brought), are of such a character that it is more than probable we would have held them fit subjects for investigation in chancery if the objection had been made in time. But it appears upon the face of the complaint that this settlement was confirmed on the 24th day of May, 1871, and the complaint was filed on the 23d day of April, 1885, more than thirteen years after the settlement had been confirmed. There is no reason alleged for not bringing this suit for the correction of that matter sooner, and there was no concealment, as the credits were claimed in a public record. So the objection as to these credits is barred by limitation. Hanf v. Whittington, 42; Ark., 491 ; McGaughy v. Brown, 46 ib., 25.
3. Jurisdiction of probate court.
The third settlement, so far as this court knows, is still pending on exceptions in the probate court, hence all the fraudulent matters alleged in connection with it are still within the jurisdiction of, and under the control of the probate court, and cannot be questioned in this suit in equity. And the same is true of the frauds alleged against the executor for failing to charge himself in any of his settlements with-the personal property he omitted to inventory,, and other sums and property coming to his hands as such, or with which he ought to have been charged-The appellant, Mrs. Hankins, could, at the time she-brought this suit, have called the attention of the probate court to these alleged fraudulent errors, by exception to-the third settlement or other proper proceeding for that purpose, and have had them corrected if they existed in fact; and can still do so, so far as this court knows, as,, upon the face of the record in this case, the third settlement still stands on exceptions and unconfirmed in the probate court. The probate court has exclusive original jurisdiction of such matters (see Constitution, art. 7, sec. 3J¿),. and courts of equity cannot exercise jurisdiction over them, except in cases of fraud in confirmed settlements,, or upon the happening of some other circumstances which takes them out of the jurisdiction of the probate court. The probate court has ample power to charge an executor or administrator with any property or money of an estate-with which he has fraudulently failed to charge himself, and if need be to compel him to file proper inventories and appraisements of its property coming to his hands as such, at any time before his final settlement and discharge.
We therefore conclude that the demurrer was properly sustained as to all the charges of fraud against the second and third settlements, and as to the charges of fraud against the executor failing to charge himself with other property and money not charged in any of his settlements, as specified in the complaint, and affirm the judgment to that extent.
4. Fraud ingentestate’s lands
But the alleged fraudulent dealings of the executor with the lands of the estate stand on an entirely different foot- ** ing. These are wholly outside of the jurisdiction of a ■court of probate, and can be nowhere so effectually corrected as in a court of equity; and that courts of equity have jurisdiction to correct them is beyond doubt. Dealings with the lands of an estate by an executor or administrator, such as those specified in the complaint, are grossly fraudulent, and a court of equity should give relief against them as soon as they are properly brought to its notice and made manifest by evidence. (McGaughy v. Brown, 46 Ark., 25.) The judgment of the court below is therefore reversed as to these charges of fraud in dealing with the lands, and this cause is remanded to it with instructions to overrule the demurrer to that extent, and to permit such of the defendants as desire to do so to answer; and upon final hearing, to decree, in regard to the alleged frauds in the land matter, according to the evidence and the law applicable thereto.
5. partiwherTtitie m dispute.
As the case goes back for further proceedings it is prob-a^y n°k amiss to say something as to the partition prayed for- ]q jg a generaj rule that there can be no partition in an action to settle a disputed title to lands. This rule is approved and reiterated. But to this general rule there is at least one exception ; that is to say, where the court of chancery has possession of the cause on some clear ground of equity jurisdiction, wholly distinct from the matter of partition, then the cause may be retained for partition. Both the rule and the exception may be found by examining the following cases': Trapnall v. Hill, 31 Ark. 345; Davis v. Whitaker, 38 Ark., 435; London v. Overby, 40 Ark., 155; Moore v. Gordon, 44 Ark., 334; Brisco v. Hambrick, 47 Ark., 335. The exception to the rule is found in the facts in this case; and the court below, upon disposing of the other matters involved, should proceed to make partition of- the lands among those entitled to them according to their several interests, and in the manner prescribed by law. | [
-14,
108,
-128,
28,
-24,
96,
42,
-118,
83,
-31,
37,
83,
-17,
-62,
0,
103,
-30,
61,
-47,
122,
-29,
-73,
63,
35,
82,
-77,
-47,
95,
-78,
77,
-16,
-41,
72,
33,
10,
85,
67,
-86,
-59,
84,
6,
96,
8,
-24,
91,
64,
52,
-5,
65,
75,
117,
10,
-9,
43,
63,
107,
72,
44,
-17,
-65,
-63,
-72,
-65,
-121,
89,
23,
3,
6,
-104,
9,
-54,
-102,
-104,
84,
-120,
-23,
123,
38,
70,
116,
33,
15,
13,
98,
99,
49,
33,
-17,
-76,
-120,
47,
-74,
-119,
39,
-78,
96,
82,
8,
-66,
-99,
60,
80,
-57,
-10,
-22,
-60,
89,
120,
5,
-50,
-42,
-127,
-99,
-68,
-100,
51,
-1,
-113,
52,
113,
-50,
-94,
93,
71,
57,
-101,
-113,
-94
] |
Cockrill, O. J.
The appellee was injured by stepping into a cavity caused by a rotten plank in the appellant’s , „ . ni. „ i ,1 • platform at Bierne station, lhe jury found the issues in his favor, and the question whether the appellee was lawfully on the platform at the time he was injured is the only one properly left for our consideration. If he was there merely from curiosity, or for his own convenience for the transaction of business in no way connected with the railroad company, no relation existed between him and the company which imposed upon the latter the duty of exercising even ordinary care in maintaining a safe platform for his use, and it is not liable for his inj ury. Thompson Carriers, p. 105, sec. 2; P., F. W. & C. Ry. v. Bingham, 29 Ohio St., 364; Gillis v. Penn. Ry., 59 Penn., 129; Kansas City Ry. v. Kirksey, ante p.
l. Rail - Liability defeoj^sPlat-
But the company is bound to use ordinary care to keep its platforms in a safe condition for the benefit of those who have the legal right to go upon them. The public duties and obligations of a railroad confer upon the public the right to enter upon its premises for the purpose of making such obligations available. There is an implied promise on the part of the company that these obligations will be discharged, and this promise is an inducement, an invitation to those who may wish to derive a benefit therefrom, to enter upon the premises for the purpose, and when they do so the company owes them’the duty of having its premises in such condition that a person in the exercise of ordinary care can- transact his business without injury.
2. Same:
In fixing the railway’s obligations the statute requires that they shall post upon the nearest station-house a notice of the killing of stock by their trains, and imposes a penalty to be recovered by the owner for its non-observance.
This is for the benefit of the stockholder. If his cow is missing and he is informed that an animal has been killed upon the railroad track, he can get a description of it, with the time and place of the killing, from the notice the company is required to post, and is thus facilitated in making his claim for compensation. It is necessary that he should go upon the platform at the station for this purpose, and he has therefore the legal right to do so. Without this right the notice would be useless and would not have been required.
In the case before us a cow had been killed on appellant’s track. The owner was apprised of the fact and desired to examine the notice, which he knew was posted at the station, in order to get more accurate information. He was illiterate and unable to read. He procured the plaintiff to go with him to read the notice for him. The notice was posted on the wall of the station-house, and the plaintiff was compelled to mount a box to read it. When he stepped off the box his foot went through a hole in a decayed plank in the platform and he was injured. If the stock owner had been injured while properly exercising his right to examine the notice, through the want of ordinary care on the company’s part, we think it clear that he could recover. He was there through the inducement or upon the invitation of the company implied from posting the notice for his information, and was entitled to safe access to his place of business. 2 Woods Ry., sec. 310; Carlton v. Franconia, 1. & S. Co., 99 Mass., 216. This right of protection extends to all persons “ who have rightful occasion to use ” the platform, as was said by Appleton, C. J., in Tobin v. R. R., 59 Me., 183. This was the case of a hackman engaged in carrying passengers to the railroad depot, See, too, Wendell v. Baxter, 12 Gray, 1914.
No distinction can be drawn .between the plaintiff and the stock owner in the right to'go upon the platform to examine the notice. What the latter had the right to do himself he had the power to authorize another to do for him. An employe who goes upon a company’s premises to receive his master’s freight enjoys the same right of protection that the master does (T. W. & W. Ry. Co. v. Grush, 67 Ill., 262), and for the same reason that the plaintiff here should be protected, viz.: because he is clothed with his principal’s right to enter the premises to' transact his business; and the rule applies to one who goes upon the company’s premises to aid a friend who is to depart or arrive by its trains. Gillis v. Ry., supra; McKone v. Mich. Cent. Ry., 51 Mich., 601.
But it is said' the plaintiff was guilty of contributory negligence in entering upon the platform at the hour selected. It was dusk, neither daylight nor dark. We cannot declare as a conclusion of law that this, per se, was negligence. The question was fairly submitted to the jury under proper instructions to determine whether the plaintiff’s conduct contributed to his injury, and .they have resolved the question in his favor. The charge was as favorable to the company as it could demand, and the facts proved were sufficient to warrant the jury in finding that the plaintiff was free from negligence and that the defendant was not.
Affirm. | [
-75,
116,
-104,
-97,
91,
104,
50,
-104,
65,
-95,
39,
83,
-51,
-61,
-127,
35,
-25,
-1,
-47,
59,
-11,
-13,
71,
-94,
-110,
-45,
115,
-121,
-80,
75,
104,
-57,
77,
49,
10,
85,
-25,
-53,
73,
92,
-118,
39,
10,
-31,
-69,
64,
40,
123,
-108,
79,
113,
-33,
-69,
42,
24,
-57,
45,
46,
111,
37,
-46,
121,
-77,
13,
122,
6,
-94,
6,
-67,
39,
72,
8,
-104,
21,
24,
-88,
113,
-74,
-126,
-12,
9,
-23,
-59,
98,
99,
33,
13,
-19,
-124,
-72,
47,
-22,
-113,
-25,
-76,
16,
35,
57,
-97,
-67,
16,
4,
38,
-22,
-26,
68,
89,
36,
3,
-113,
-76,
-109,
-1,
-92,
-98,
-75,
-49,
-73,
51,
101,
-56,
-78,
92,
-59,
126,
27,
-97,
-2
] |
Smith, J.
The indictment in the case first above mentioned charged that the defendants “in the said county of Carroll, etc., on the 20th day of December, 1884, unlawfully, wickedly, feloniously and incestuously did cohabit, fornicate, and each other there and then criminally and carnally know, he, the said James Eritts, then and there being a man, and she, the said Mattie Phillips, being a woman, and they, the said James Fritts and Mattie Phillips, then and there being first cousins, against the peace,” etc.
1. Indict-m e n t for incest between cousins.
The indictment in the second case is similar. And both indictments were quashed on general demurrer.
See. 1578 of Mansf. Dig. reads as follows: “ Persons marrying who are within the degrees of consanguinity within which marriages are declared by law to be incestuous, or void absolutely, or who shall commit adultery or fornication with each other, shall be deemed guilty of incest.” And the next section makes the offense a felony.
Sec. j¡J598, being the amendatory act of March 5, 1875, enacts that “all marriages between parents and .children, including grand-parents and grand-children of every degree; between brothers and sisters of the half as well as the whole blood; between uncles and nieces, and between aunts and nephews, and between first cousins, are declared to be incestuous and absolutely void. This section shall extend to illegitimate children and relatives.”
The intention of the legislature was to prohibit the intermarriage of persons nearly related by blood, partly, no doubt, on account of the supposed evil consequences to body and mind resulting to the offspring of such marriages. And this intention is accomplished by declaring that if parties who are within the prohibited degrees of consanguinity marry,' or commit fornication or adultery with each other, they are guilty of incest.
These indictments attempt to charge incest by alleging that the defendants committed fornication. And yet there is no averment that they stood not to each other in the relation of husband and wife. The fact of a legal marriage is nowhere negatived. All that is alleged may be true and still no crime may have been committed.
It will not do to assume that no legal marriage could have been celebrated between the parties. Eor if they were married in this state before the passage of the act, or were married since that date in any state or foreign country of which they were citizens, or subjects, and in which marriages between cousins german are not forbidden, then their union was not unlawful and it is not invalidated by the law. If an incestuous marriage has in fact been contracted, the indictment should charge that James Fritts incestuously did intermarry with, and take to be his wife, Mattie Phillips, the cousin of the said James Fritts, they being descended from the same grandfather, etc. Hutchins v. Commonwealth, 2 Va., Cas., 331; 2 Wharton’s Precedents of Indictments and Pleas, 4th Ed., form 1000.
If, on the other hand, these cousins had been guilty of 2 an improper intimacy, without any pretense of being married, incestuous adultery should have been charged, if one or both were married, or incestuous fornication, if both were single persons, and the indictment should have shown, with certainty, that Mattie Phillips was not the wife of James Fritts. Giving the two defendants different names does not carry a necessary implication that they are
. Same. not man and wife. A party indicted for the crime of incest committed by fornication cannot be convicted, unless it is both alleged and proved that he was unmarried at the time specified in the indictment. Crouse v. State, 16 Ark., 566; Hopper v. State, 19 ib., 566; Moore v. Commonwealth, 6 Metc., 243; Commonwealth v. Reardon, 6 Cush., 78; Commonwealth v. Murphy, 2 Allen, 163; Territory v. Whitcomb, 1 Montana, 359.
Judgment affirmed. | [
-80,
104,
-83,
-4,
42,
-64,
-82,
56,
-78,
-21,
-91,
119,
-49,
-34,
4,
113,
-95,
105,
81,
107,
-47,
-121,
21,
67,
-14,
-77,
-57,
-33,
53,
77,
-17,
-11,
64,
48,
78,
-7,
71,
106,
-27,
-44,
-122,
9,
-119,
-28,
82,
-46,
52,
115,
87,
14,
37,
-114,
-77,
10,
20,
-45,
9,
46,
75,
62,
-64,
48,
-98,
21,
92,
6,
-77,
38,
-104,
1,
-56,
14,
-104,
17,
32,
-8,
115,
-108,
-61,
126,
77,
41,
13,
32,
98,
1,
-27,
-1,
-120,
-104,
126,
118,
-99,
7,
-112,
73,
3,
12,
-65,
-41,
84,
80,
-86,
122,
-30,
-51,
21,
112,
-91,
-117,
-108,
-79,
77,
126,
-104,
35,
-13,
-25,
50,
113,
-61,
34,
92,
22,
48,
123,
14,
-74
] |
Cockrill, C. J.
This is a continuation of the case between the same parties reported in 43 Ark., 809. It is an action on a judgment for $258, rendered by a justice of the peace in the state of Tennessee. On the former appeal it was determined that the judgment of a justice of the peace was not within the provision of the act of congress of May 26, 1790, as ' to the methods of authenticating judgments of other states, and the judgment of the circuit court was reversed because no other proof of the authenticity of the judgment sued on, was made. On the second trial the judgment was proved in the manner pointed out in the opinion in f3 Ark., sap. The laws of Tennessee and the testimony of experts were put in evidence, showing that the justice had jurisdiction of the subject matter, and that his judgment was conclusive in Tennessee of the controversy. The court found, also, in effect, that the justice of the peace had jurisdiction of the person of the defendant by personal service of process on him in the county where the judgment was rendered; but having inquired into the merits of the demand upon which the judgment was based, found that the defendant was never indebted to the plaintiff, and gave judgment accordingly. The question now presented is whether the justice’s judgment is conclusive or only prima fade evidence of debt.
The appellee contends that as the judgment does not come within the act of congress which prescribes the mode of authentication and the effect of judicial proceedings of the courts of other states, it must be treated as a foreign judgment was at common law; and authorities are cited to show that a foreign judgment is open to an examination of the merits of the demand upon which it is founded.
This argument disregards the first section of the fourth article of the constitution of the United States, which provides that- full faith and credit shall be given in each state to the judicial proceedings of every other state; or else treats it as controlled or limited by the subsequent provision of the same clause, which confers upon congress the power to prescribe the manner in which such proceedings shall be proved and the effect thereof. Judge Story’s view of this provision was that the first sentence of the article was self-executing, and rendered the judgments of the sister states conclusive without the aid of legislation.
(2 Story on Const., secs. 1302-13.) And some of the state courts have taken this as the better interpretation. Stock-well v. Coleman, 10 Ohio St., 33; Kean v. Rice, 12 S. & R., 203. See Big. Est. (4th Ed.), pp. 310, et seq., 314-15.
Justices Wayne and Washington, on the other band, the former in delivering the opinion of the Supreme Court of the United States, and the latter upon the circuit, have expressed a different idea of the effect of the constitutional provision, holding the opinion that it was for congress to declare what effect or degree of force judicial proceedings should have outside of the state in which they were had. (McElmryal v. Cohen, 13 Pet., 693; Green v. Larmiento, 1 Pet., C. C., 74.) And this was Chief Justice Parker’s opinion. Warren v. Flagg, 2 Pick., 448; Malwine v. Blackford, 6 N.H., 567; Taylor v. Barron, 10 Fost., N. H.,78.
But in the view we take of the matter it is immaterial whether the effect of the judgment in this case is regulated by the principles of the common law or governed by the constitutional provision. If the latter is self-executing and means that the same faith and credit is due to the judgment here that is accorded it in Tennessee, leaving nothing to be declared upon this score by legislation, as Judge Story thought, the judgment is conclusive except as to jurisdiction or fraud in obtaining it, as we decided in Peel v. January, 35 Ark., 331.
If upon the other hand the constitutional provision does not aid the judgment, the principles of the common law as now understood preclude an inquiry into the merits of the demand upon which the judgment is founded.
There has been much contrariety of opinion in England and in this country as to what the common law is upon this subject. In England it appears there had never been an authoritative decision of the question either as to a colonial or a foreign judgment until Bank of Australasia v. Nias, 16 Adolphus & Ellis, 717 (where a colonial judgment was involved), decided in 1851, and Scott v. Pilkington, 2 Best & Smith (which was the case of a judgment rendered in New York), determined in 1862. In these cases the rule was adjudged that a plea to the merits in an action upon any valid judgment was bad, and that is now the settled law of that country. 2 Chitty Const., p. 1177, sec. 4; Big. Est., (4th Ed.), pp. 252, et seq., and cases in notes.
Earlier dicta are found from the most eminent English jurists, expressing a contrary view, and the earlier American cases and text writers followed them as making the correct enunciation of the common law.
But the doctrine thus announced extra-judicially was never received as satisfactory by either Story or Kent. (Story Conflt. Laws, sec. 607; Taylor v. Boyden, 8 Johns., 173.) And when the English courts began to doubt its soundness, the current of American authority began to change, and since the English dicta were repudiated at home, their doctrine has been but little regarded here. ‘ To try over again, as of course,” says Kent, C. J., in Taylor v. Boyden, sup., “every matter of fact which had been duly decided by a competent tribunal, would be disregarding the comity which we justly owe to the courts of other states, and we would be carrying the doctrine of re-examination to an oppressive extent. It would be the same as granting a new trial in every case, and upon every question of fact.”
A judgment, whether foreign or domestic, raises a binding obligation to pay the sum awarded by it, and the'presumption as to its conclusiveness should follow the law of the forum in which the proceedings were had. The inconveniences and legal perplexities that would follow a different rule are aptly stated by Judge Story in his work on the conflict of laws, ubi sup. Neither reason nor the weight of authority demand that we should entail them upon our practice.
It is not the policy of the law to encourage litigation, and where a court of competent jurisdiction, having the parties legally before it has adjudicated the merits of their case, every reason favors holding them bound by the adjudication wherever the judgment may be called in question, if there has been no fraud practicéd in obtaining it. This is now the accepted rule. Lazier v. Westcott, 26 N. Y., 146; Brinkly vs. Brinkly 50, ib., 184, 202; Harrison v. Lowry, 49 How. Pr., 124; Baker v. Palmer, 83, 111, 569; Beall v. Smith, 14 Texas, 305; N. Y., L. E. & W. R. Co. v. McHenry, 17 Fed. Rep., 414; Big. Est., sup., pp., 255-7; Freeman on Judgments, sec. 577.
The circuit court erred in receiving evidence as to the merits of the plaintiffs claim, and the judgment must be reversed and the cause remanded for further proceedings. | [
-80,
-8,
117,
-68,
74,
96,
16,
26,
74,
35,
35,
83,
121,
67,
0,
115,
-29,
105,
113,
106,
-43,
-73,
22,
97,
-14,
-14,
-21,
85,
-80,
124,
-26,
87,
12,
-88,
-62,
-43,
103,
75,
-63,
80,
-82,
-98,
-24,
-21,
-39,
-126,
48,
126,
16,
11,
113,
-114,
-13,
46,
25,
-53,
-23,
44,
91,
-83,
64,
-104,
-114,
7,
127,
21,
-125,
103,
-100,
7,
-36,
42,
-110,
57,
1,
-8,
123,
-74,
-126,
-43,
111,
-71,
9,
102,
99,
-75,
36,
43,
-72,
-56,
47,
-1,
-113,
-89,
54,
32,
67,
41,
-74,
29,
124,
32,
-121,
94,
-18,
77,
-99,
108,
15,
-113,
-106,
-79,
-113,
54,
-102,
83,
-25,
35,
20,
85,
-51,
-6,
93,
15,
57,
-101,
-114,
-6
] |
Battle, J.
Levi Watts was indicted in the Sebastian circuit court, for the Greenwood district, for malicious mischief committed by him on the 10th day of February, 1885, in the Greenwood district, by then and there unlawfully, wilfully, maliciously and mischievously cutting, tearing down,injuring and breaking the telephone wire of the Fort Smith, Greenwood aud Waldron Telephone Company, it being of the value of fifty-five dollars. He demurred to the indictment, and the court sustained the demurrer and discharged him.
, The only question in this case is, was the act charged in / the indictment an indictable offense at common law? / There was no statute making it a crime at the time it is ' alleged to have been committed.
It is difficult to state with minute precision, what is necessary to constitute malicious mischief at common law. It has been so much legislated upon, and at such an early day, that its common law limits are indistinct. Blackstone classes it along with larceny and forgery, and, after treating of larceny, says: “ Malicious mischief, or damage, is the next species of injury to private property which the law considers a public crime. This is such as is done, not animo furandi, or with an intent of gaining by another’s loss, which is some, though a weak excuse, but either out of a spirit of wanton cruelty, or black and diabolical revenge, in which it bears a near relation to the crime of arson ; for as that aftects the habitation, so this does the other property of individuals. And therefore any damage arising from this mischievous disposition, though only trespass at common law, is now, by a multitude of statutes, made penal in the highest degree.” And he then enumerates several statutes which elevated it to a felony.
Some judges, relying on this passage, and,understanding the word “ trespass ” therein according to its modern signification, have denied that the offense of malicious mischief exists under the common law of this country. But, upon a careful reading, it is obvious that the word trespass” is used by Blackstone in this passage in the sense of misdemeanor. It is used by him in various places in his Commentaries in that sense; as, where, speaking of officers who voluntarily suffer prisoners to escape, he says: “It is generally agreed that such escapes amount to the same kind of offense and are punishable in the same degree as the offense of which the prisoner is guilty, and for which he is in custody, whether treason, felony or trespass.” And again, where he says: “In treason all are principals, propter odium delicti; in trespass all are principals, because the law, quae de minimis non curat, does not descend to distinguish the different shades of guilt in petty misdemeanors.” 1 Bishop on Crim. Law, secs. 568, 569, 625..
Without further discussion, it is sufficient to say that, according to the weight of authority and the better and prevailing opinion, the offense of malicious mischief exists under the common law of this country.
This offense includes all malicious physical injuries to the rights of another which impair utility or materially diminish value. “ Thus, it has been considered an offense at common law to maliciously destroy a horse belonging to another; or a cow; or a steer; or any beast whatever which may be the property of another; to wantonly kill an animal where the effect is to disturb and molest a family; to maliciously cast the carcass of an animal into a well in daily use; to maliciously poison chickens; to fraudulently tear up a promissory note, or break windows; to maliciously set fire to a number of barrels of tar belonging to another; to maliciously destroy any barrack, or corn crib; to maliciously girdle or injure trees or plants kept either for use or ornament; to maliciously break up a boat; to maliciously injure or deface tombs; and to maliciously strip from a building copper pipes or sheeting.” These illustrations serve to indicate what is malicious mischief, and the subjects of the offense. Wharton on Crim. Lax [19 Ed.], secs. 1067,1076, and authorities cited.
• We are satisfied that the act charged in the indictment in this case constitutes the offense of malicious mischief; and that the demurrer to the same should have been overruled. The judgment of the court below is therefore reversed, and this cause is remanded, with instructions to overrule the demurrer and for other proceedings. | [
-112,
120,
-72,
63,
42,
105,
58,
58,
89,
-87,
-27,
119,
-19,
-57,
4,
49,
113,
-29,
116,
115,
-60,
-74,
7,
-61,
-78,
-45,
87,
-41,
-100,
79,
-1,
-50,
13,
52,
-62,
117,
-57,
72,
109,
-100,
-122,
33,
-120,
100,
-13,
0,
52,
123,
85,
79,
113,
-97,
-14,
42,
21,
-53,
73,
44,
78,
-84,
-14,
-5,
-68,
77,
121,
22,
-125,
38,
-72,
1,
-62,
60,
-104,
17,
9,
-88,
115,
-94,
-126,
116,
13,
11,
-124,
32,
98,
17,
-23,
-77,
40,
-119,
63,
-90,
-99,
-90,
0,
104,
11,
-124,
-65,
-121,
118,
0,
6,
112,
99,
-124,
112,
108,
-125,
-49,
-108,
-27,
77,
112,
-42,
55,
-61,
103,
32,
80,
-49,
-93,
120,
71,
81,
-97,
15,
-49
] |
Cockrill, C. J.
The only questions pressed for determination by the appellant against whom judgment was rendered as surety in a guardian’s bond, and whose principal died several years before this action was brought, are as follows:
1. The complaint shows that the claim was not presented for allowance against the estate of the principal obligor within two years of the grant of the administration, and it is argued that the demurrer to the complaint should have been sustained for that reason.
1. Action against surety on guardian's bond.
The facts alleged would have been sufficient to bar a recovery against the deceased guardian’s administrator in an action to charge his estate (Connerly v. Weatherby, 33 Ark., 658; Padgett v. State, for use of Coleman, 45 ib., 495); but the neglect to probate the claim against the estate of the principal obligor does not discharge the surety. Ashby v. Johnson, 23 Ark., 163; Padgett v. State, sup.
2. The second position is that no breach of the bond is shown, because the order of the probate court settling the guardianship accounts does not direct the payment of the amount found due in the settlement to any one.
It has been repeatedly announced by this court that no action can be maintained on a guardian’s bond until the probate court has ascertained the amount of the guardian’s indebtedness and directed its payment to the party entitled to receive it, and this is unquestionably the general rule. Padgett v. State, sup., and cases cited. But an examination of the cases will show that the rule in its broadest statement has been announced where the amount found due was on a partial settlement iu a continuing or subsisting guardianship, as in Sebastian v. Bryan, 21 Ark., 447; or in case the guardian was dead, and there had been no final settlement either before or after his death, as in Vance v. Beattie, 35 ib., 93; or in cases where the order to pay to the person entitled to receive the money has been in fact made and the question was, not whether the order was sufficient but when did the cause of action accrue and the statute of limitations begin to run ?
When the trust is closed (as it was by the death of the guardian in this case) and a new guardian is appointed whose duty it is to collect whatever may be due his ward, the material matter under the prior guardianship is to settle the amount actually due to the ward. There can be no controversy about who is legally entitled to receive it; and the sureties’ obligation to pay the deficit in the guardian’s account is fixed within the spirit of the rule without a formal judgment of the probate court against him or his principal’s administrator. State v. Croft, 24 Ark., 550; Connerly v. Weatherby, sup.
Now, it is not disputed in this case that the probate court took steps to adjust the deceased guardian’s accounts and to determine the amount of his indebtedness to his ward, and it has not been contended that a valid order fixing the amount of the deficit at the sum claimed in the complaint, was not entered. .This order then, was a final settlement of the guardian’s accounts after the close of the trust, and his successor in the guardianship was before the court pressing the settlement when it was made. These matters are shown by the probate court record; they can legally indicate but one thing, and that is that the intention of the court was to fix the -liability of the principal obligor and thus lay the foundation for an action against the surety, and we think it was sufficient for the purpose.
2. Parties tion!ie a0'
When the action was brought, Smithson, the former ward, was of age, and was allowed to sue in his own name. This was the correct practice. Hunnicut v. Kirkpatrick, 39 Ark., 172; Turner v. Alexander, 49 ib., 254.
Let the judgment be affirmed. | [
-78,
100,
-36,
-67,
90,
96,
58,
-70,
-63,
-109,
33,
-45,
-21,
-61,
1,
47,
-48,
107,
117,
120,
87,
-73,
99,
64,
-38,
-46,
120,
-59,
49,
-19,
102,
94,
12,
120,
-94,
-43,
-26,
11,
-43,
88,
70,
9,
26,
-27,
-39,
64,
48,
-3,
86,
15,
117,
-34,
-13,
42,
56,
111,
73,
59,
91,
-85,
-42,
97,
-81,
5,
127,
29,
17,
7,
-72,
66,
80,
46,
2,
61,
1,
-24,
113,
-74,
6,
-12,
105,
-103,
41,
118,
98,
-96,
37,
101,
-80,
-120,
14,
-100,
15,
-90,
-74,
121,
107,
45,
-74,
-104,
124,
32,
103,
-4,
-26,
28,
95,
44,
7,
-113,
-42,
-79,
-87,
96,
-66,
19,
-1,
-71,
52,
97,
-52,
-62,
92,
103,
56,
-101,
71,
-5
] |
Smith, J.
In this ejectment the defendant does not con-: trovert the plaintiff’s title, but seeks to recover the value of his improvements and the taxes he has paid. He pleaded that he had entered upon the land in the year 1868 under a deed' with covenants of general warranty, and which purported to convey an estate in fee simple; that the land was then in a wild and unimproved state, and he had in good faith, believing that his title was perfect and his right to the possession indisputable, peaceably made improvements to the value of $2000, and had paid the annual taxes, amounting to $150. To the paragraph of his answer, setting up this partial defense, a general demurrer was sustained.
Better ment Act
In his deposition, taken before the trial, the defendant testified as to the nature, extent and value of the improvements. This portion of his deposition was suppressed.
At the trial the defendant offered, but was not permitted, to read his deed for the purpose of showing that he went into possession under color of title. Against defendant’s objection the court gave this instruction :
“ The jury is instructed that the plaintiff is entitled to the rents and profits of the land in cultivation, as shown by the testimony, from the time the defendant commenced cultivating it up to the present time.”
And the court refused to give the following instruction requested by defendant:
“ If the land was wild and unimproved when defendant entered, the jury should not allow the rent value of the land as increased by the improvement.”
Notice of tie.
By these several rulings (exceptions to which were properly saved) the circuit court affirmed that the betterment act of March 8, 1883 (Mansf. Dig., sec. 2644, et seq), did not affect the rights of the parties, and ought not to influence the result. The court may have been led to this conclusion by the fact that the plaintiff’s title was of record when the defendant purchased the land from another party, or by the fact that the improvements were made and the present action had been brought before the passage of the act, or by the fact that the plaintiff was an infant at the time the improvements were in progress.
But the constructive notice of an adverse title, which the law implies from the registry of a deed, is not sufficient to preclude the occupant from recovering for improvements, if he, in fact, purchased in good faith and under the supposition that he was obtaining a good title in fee. Actual notice is the test — that is, either knowledge of an outstanding paramount title, or of some circumstance from, which the court or jury may fairly infer that he had cause to suspect the invalidity of his own title. Now, the mere fact that the defect in the title would have been disclosed upon an examination of the public records does not bring such knowledge home to him ; for it is not inconsistent with his ignorance of the existence of such a deed, nor with an honest belief that his title is uncontested. Sedg. & Wait on Trial of Land Titles, sec. 696; Whiting v. Richardson, 31 Vt., 300.
The only requirements of the act are, that the occupant should have had peaceable possession, at the time the improvements were made, under color of title and under the belief that he was the owner of the land. Any instrument having a grantor and grantee, and containing a description of the lands intended to be conveyed, and apt words for their conveyance, gives color of title. Washburn on Real Property, 3d Ed., 139; Teaver v. Akin, 47 Ark., 528, and cases cited.
2. same: tuwwhat 1S? ,
Good faith, in its moral sense, as contradistinguished from bad faith, and not in the technical sense in which it is applied to conveyances of title, as when we speak of a bona fide purchaser, meaning thereby a purchaser without notice, actual or constructive, is implied in the requirement that he must believe himself the true proprietor. It must be an honest belief, and an ignorance that any other person claims a better right to the land. Fee v. Cowdry, 45 Ark., 410; Shaw v. Hill, 46 ib., 333.
The defendant was not cut off from the benefits of the law because his improvements were made before its enactment. The act is retrospective, and was designed to affect past as well as future transactions. And it is not unconstitutional. Fee v. Cowdry, supra.
3- gAME: gpeotir®er0’
The pendency of the action at the date of the passage of the law was an immaterial circumstance. It was explained in Green v. Abraham, 43 Ark., 420, and in Johnson v. Richardson, 44 ib., 365, where the curative features of this act were before us, that the bringing of a suit doe3 not entitle a party to any particular decision; but his case must be determined by the law as it stands at the time of the judgment.
4. infanowner.
Nor was the defendant’s right to set off the value of his improvements affected by the plaintiff’s infancy. The betterment act does not proceed upon the idea of contract, or consent of the parties, or negligence of the owner in asserting his title. It is a rule for administering justice; and the principle of it is, that no one ought to be enriched at the expense of another. The statute is general, and no exception is made in favor of minors. Potts v. Cullum, 68 Ill., 217.
The judgment is reversed and cause remanded, with directions to overrule the demurrer to the second paragraph of the answer, aud for further proceedings consistent with this opinion. | [
-16,
126,
-103,
30,
-38,
96,
42,
-104,
65,
-30,
-90,
87,
111,
66,
0,
37,
-31,
105,
117,
104,
-50,
-93,
71,
-93,
-14,
-77,
91,
85,
-75,
-51,
-27,
-43,
76,
32,
-62,
53,
103,
-128,
29,
88,
-114,
-127,
-87,
76,
-31,
96,
52,
27,
64,
15,
17,
-33,
-13,
47,
25,
65,
9,
40,
15,
57,
-63,
-8,
-98,
5,
-17,
7,
-79,
117,
-68,
66,
72,
-120,
-112,
29,
0,
-8,
51,
-74,
-126,
116,
13,
-101,
40,
98,
102,
0,
101,
-33,
-8,
-72,
46,
-10,
13,
-90,
82,
88,
27,
45,
-66,
-99,
-4,
0,
-25,
118,
-20,
-35,
93,
108,
7,
-49,
86,
-109,
13,
40,
-118,
3,
-41,
35,
16,
113,
-49,
-94,
92,
71,
121,
-101,
-113,
-37
] |
Smith, J.
On the 4th of August, 1885, in Desha circuit cour^> cause of J. M. Whitehill, plaintiff, against J. R. Sutler, defendant, was tried before the Hon. John A. Williams, circuit judge, and a jury, and a verdict and judgment were given for the defendant. On the 6th of the same month the plaintiff moved for a new trial. This motion had not been disposed of, when the court adjourned over to the 8th of December, following. On fhe day last mentioned, the circuit judge was not in attendance, being engaged in holding the Jefferson circuit court. On the 9th of December a special judge was elected, who adjourned the court over from time to time, until the 23d of January, 1886, when the regular judge appeared, set aside the judgment previously entered in the above entitled cause, and ordered another trial.
i. cikcuit Adjourn BUctioToi ^ulgesj tion. 1 1
At a subsequent term, the defendant in the action moved the court to strike the case off of the docket, upon a suggestion that the judgment had become final before the court undertook to set the same aside. This motion was denied. The defendant in that action now prays the writ of prohibition to prevent the circuit judge from taking further jurisdiction of the cause. And the question is, whether the Desha circuit court was legally in session on the 23d of January, 1886.
It is not the meeting of the judge and officers of a court at the county seat that constitutes a court, but that meeting must be at a time authorized by law. Brumley v. State, 20 Ark., 77; Osborn, ex parte, 24 ib., 479.
The terms of the circuit court are prescribed by statute. It is provided, however, that “special adjourned sessions of any court may be held in continuation of the regular term, upon its being so ordered by the court or judge, in term time, and entered by the clerk on the record.” Mans/. Big., secs. 1476, 1481.
There is no such thing known to our laws as two circuit courts held in the same circuit at the same time, one presided over by the regular judge and the other by a special judge. Suitors are entitled to have their causes tried before the circuit judge, unless he is disqualified, or unable to preside from causes beyond his control.
It was lawful for the Desha circuit court to adjourn its sittings to a distant day. But when that day arrived, and he was detained by his judicial duties in another county of his circuit, the adjourned session necessarily failed. Eor there is no power to supply his place temporarily by a special election by the attorneys in attendance; his absence for this cause not being such an inability to continue to hold the court as is contemplated by section 21, of article 7, of the constitution of 1874.
~We are also inclined to think that if the circuit court of Jefferson county had not been in session, the adjourned session would have failed for want of a judge, the court not haying been organized on the day to which the adjournment wae had by the election of a special judge.
■ This was not a new term but a continuation of the old one. But. on this point it is not necessary to express any decided opinion.
2'bition“’ When is-
Prohibition is an extraordinary remedy and the writ will nofc’be granted unless the defendant has objected to the jurisdiction of the inferior court and his objection has been overruled. City of Little Rock, ex parte, 26 Ark., 52, and cases cited; Smith v. Whitney, 116 U. S., 167.
■ We regará the motion by the defendant to dismiss the cause for want of jurisdiction as satisfying this requirement. It was in fact all he could do. Let the writ go. | [
-16,
-22,
-4,
-52,
90,
97,
32,
-66,
65,
-29,
102,
83,
-23,
-110,
16,
125,
-85,
91,
85,
75,
-60,
-105,
22,
67,
-94,
-45,
83,
87,
-68,
107,
-10,
-1,
28,
56,
10,
85,
70,
66,
-121,
92,
-122,
-119,
-7,
104,
-101,
-126,
48,
121,
50,
31,
97,
78,
-14,
42,
29,
79,
105,
45,
-53,
57,
-40,
113,
-98,
-105,
79,
4,
-79,
-90,
-98,
-121,
88,
42,
-104,
57,
73,
-8,
115,
-10,
-126,
116,
45,
-39,
44,
98,
98,
3,
69,
-17,
-72,
-56,
63,
50,
-99,
-26,
-102,
121,
107,
-120,
-66,
-105,
109,
20,
-114,
126,
44,
-43,
80,
32,
6,
-58,
-110,
-121,
-50,
20,
-110,
18,
-22,
-58,
32,
49,
-119,
-74,
84,
71,
51,
59,
-49,
-100
] |
OPINION.
The statement of account by the special master is so full and complete, so accurate in detail, so intelligible in arrangement, and so satisfactory in every respect, that, except where questions of law arise to affect his conclusion, we are quite agreed with the learned chancellor, and shall not interfere with his finding of facts in confirmation of the report.
At the threshold we are met by the defendants’ demur-1. . . rer in the nature of a plea to the jurisdiction of the court below. Their contention is that it is an unheard of thing; that a suit for breaches of an official bond is cognizable otherwise than in a court of law, which, they contend, is competent to afford a plain and adequate remedy to the plaintiff in this controversy.
ChanoebtJoeismotion: accounts?1
They say, furthermore, that w’hile equity has jurisdiction in matters of account, such jurisdiction attaches only in cases of “ mutual accounts” between parties litigant. They say, also, that their contention on the last proposition being well founded, the jurisdictional status cannot be fixed by a combination of the separate individual and single accounts, as they claim is made in this cause.
In the case of Smith v. Bell, 1 Martin & Yerger, 378, the court had under consideration an account in favor of one of the parties, with two payments in money as credits, in iavor of the other party. The court held that such an account was not the proper subject of equity jurisdiction; holding that there was a remedy at law.
The syllabus to the case is thus stated: “Jurisdiction of courts of equity in matters of account, depends upon whether the accounts are mutual and complicated.”
The jurisdiction in that case did not turn so much upon the “mutuality of accounts” as upon their complication, and it is safe to say, that in all cases where “mutuality of accounts” is claimed to be the basis of equity jurisdiction, “mutuality” is only an essential element, in this, that it indicates intricacy and complication.
In Ludlow v. Simmond, 2 Caines cases, 1, Justice Thompson, in delivering the opinion of the court, said: “The jurisdiction, he (Fon JBlanque) again says, exercised by courts of equity, may be considered in some cases as assistant to; in' some concurrent with, and in others exclusive of, the jurisdiction of courts of common law. Matters of account form one class of cases, wherein courts of law and equity exercise concurrent jurisdiction. Black; stone lays it down as extending to all matters of account; and it is a subject I think over which the jurisdiction of a court of equity ought to receive a liberal construction, because the mode of proceeding is more peculiarly adapted to a deliberate examination and correct settlement.”
That was a case not materially different from the one at bar, in so far as the mere question of the character of the-account is concerned.
Kent, Chief Justice, in delivering a separate opinion in the case, said: “The accounts embraced the whole process,
of the adventure, from its commencement to its conclusion, and consequently consisted of a variety of charges and credits. As then one material part of the cause depended on a settlement of accounts, I think it came properly within the cognizance of the court. Chancery has concurrent jurisdiction with the courts of law in all matters of account.”
It would seem that the difficulty of properly adjusting ' accounts is that which confers the jurisdiction of accounts upon equity courts, without much regard to the singleness or mutuality of the same. This idea consists with the language of our statutes conferring jurisdiction upon. chancery courts, and courts exercising chancery jurisdiction.
We deem it unnecessary to say more under this particular heading than that the defendant. Churchill, as the treasurer of the state, keeping her accounts against himself, and his own at the same time against her, may be said to have kept “mutual accounts” in the sense of the legal expression, because there are upon his books almost innumerable items of debit and credit, many of which, singly and alone, are matters of contention and dispute between himself and the state.
2. What is a mutual account.
Again, the complaint sets forth that there is such confusion in the books of defendant, Churchill, as Treasurer, that it is almost impossible, in many instances, to determine which of his three terms should be chargeable with items of his delinquency.
From the face of the complaint we readily see that a common law court would be utterly powerless to do justice between the three sets of bondsmen; and this thought naturally causes the mind to revert back over ground already traversed, and propound the- question: “How would three separate trials at law, perhaps by three separate juries, on the three separate bonds, result ? ” No two of the juries would likely agree as to the appropriation of any item of debit or credit, when its appropriate place was at all doubtful.
The question of jurisdiction being decided, the defendants’ argument that there is a misjoinder of parties, and that the complaint is multifarious, cannot be susttained, since they both are intimately connected with the subject matter of jurisdiction. The following authorities among others, we think, sustain us in our conclusions on the subject, viz.: Wetter v. Arnett, 8 Ark., 57 ; Trapnalls executor v. Hill et al., 31 ib., 345; State v. Brown, 58 Miss., 835; Lott v. Mobile Co. Central Law Journal, vol. 23, p. 308; John F. Gay ct al. v. A. Edwards & Co., 3 Miss., 218; Governor et al. v. McEwin, 5 Humphries, 241; Spottsford v. Dandridge, 4 Munford, 289; Gains v. Chew, 2 Howard (U. S.), 619; Minter v. Smith, 45 Ark., 549.
The court below having overruled defendant’s demurrer to its jurisdiction, subsequently refused to sustain a motion made by them to submit certain.issues of fact to a jury; and the refusal of the chancellor comes up for review. The motion of defendants was made in assertion of the constitutional right, claimed to be enunciated in the seventh section of our “declaration of rights.” The language employed in that section is: “The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy,” etc.
3. Right jury.
In the case of Williams v. Citizens, etc., 40 Ark., 290, this court held that “the constitutional right of trial by jury, is confined to cases which, by course of common law, were properly so triable before.” Chancery courts are not to assume jurisdiction of a cause for the purpose of depriving parties of the right of a jury trial, but once having taken jurisdiction because the case is one properly cognizable in a court of equity, the submission of issues of fact to a jury, is a matter within the sound discretion of the chancellor. Even when a submission is made, the findings of the jury are to be regarded merely as made in aid of the ■ chancellor. There is no right of trial by jury in cases which would have been cognizable in courts of equity at and before the adoption of our constitution.
4. áLT1URAII0W'
On the testimony adduced the court below sustained the pleas of non est factum made by all the defendant sureties on the first bond, and by the defendant sureties on the third bond. The facts are clear and indisputable that the name of Thomas D. Radcliffe, in the body of and as signed, to the first bond as one of the sureties, was erased by defendant, Churchill, after all the defendant sureties had signed it, and before it was delivered or approved; and that this alteration was made without the knowledge and consent of defendant sureties, except that A. H. Garland, one of their number, then governor of the state, observed the erasure when the bond was presented to him for approval. It is also evident that the alteration is and was such as to be readily seen by any one reading the bond. The facts are not so clear as to the erasure of the name of Ered Hanger from the third bond, but while there is some conflict in the testimony on the subject, and some doubt in the mind of the court, it is, perhaps, more apparent than real, and this court sees no reason sufficient to disturb the decree of the chancellor in relation thereto.
The principle cases on the subject of pleas of non est factum, and those most nearly in point, perhaps are, Smith v. United States, 2 Wall., 219, and State v. Craig, 58 Iowa, 238.
Non &¡t
The principle enunciated in these cases may be briefly stated thus: Where a bond or other obligation has been altered materially by the erasure of a name, or the erasure or change of a figure or important word, after the same is signed and before delivery, and the alteration is ordinarily observable, the bond is void as to all the obligors who had no knowledge of it, or did not consent to the alteration, and have not ratified the bond in its altered shape.
The case of Smith v. United States above cited is one very similar to the one at bar. There are these points of difference, however: The district judge, the agent of the obligee, was not, in that case, as in this, a surety on the bond, and therefore possessed no double relation when the bond was presented to him for his approval. On the other hand, in that case the district judge’s attention was called particularly to the alteration of the bond when the same was presented to him for approval, as it had been previously ; while in this case Gov. Garland, according to his own testimony (and it appears nowhere else), merely observed the erasure at the time the bond was presented to him, his mind being engrossed with other, and what was thought then to be, weightier matters; and nothing being said by others about it, it escaped his closer scrutiny as a matter not important in itself. It is contended by appellant’s counsel that as A. H. Garland was governor of the state at the time, and also one of the sureties on the bond, he occupied a double relation; the one relation being antagonistic to the other, and, therefore, notice to him of the apparent alteration was no notice to the state, citing in support of their position the case of Stevenson v. Bay City, 26 Mich., 44.
In that case McCormick, the mayor of Bay City, who was authorized to approve the official bonds of the city officers, as was also the recorder, was also a surety on one of these official bonds. One of his co-sureties, before the bond was delivered for approval, notified him as mayor that he, the co-surety, had signed the bond on certain conditions. The Supreme Court of Michigan, in a suit on the bond against the principal and surety, held that this defense of the co surety was not good, as a notice of the conditional signing of the bond to the mayor was no notice to the city, since the mayor occupied the double relation. It is nowhere mentioned in the statement or opinion whether the mayor or recorder approved the bond. The presumption is, however, that it was approved by the recorder, because it is evident the point would have been more strongly pressed had it been approved by the mayor; because it was the duty of the mayor, under the circumstances, to decline to act upon it, leaving it to the re corder, every officer being presumed to have done what •duty required; and because the court would hardly have failed to state so important a fact as that the mayor did actually approve the bond, and that it was delivered to him for that purpose.
This being the presumption, the reasoning of the court is much strengthened. The recorder had no notice of the condition, otherwise the plea would have been good. It was not the official duty of the mayor to transmit the notice he had received from his co-surety to the recorder before the approval of the bond. The recorder’s approval of the bond could not possibly be affected by information locked up in the brain of the mayor, who presumptively had nothing whatever to do with the approval, and for aught we know, never saw or heard of it after the notice of the condition was given him by his co-surety.
In this case Gov. Garland had no alternative, no choice in the matter, so far as acting or not acting upon the bond is concerned. The law imposed upon him the duty of approving it as soon as presented. He had no double; no substitute to whom he could refer the matter. He could not have disqualified himself to act by any previous act of his own. He was simply compelled to act in the matter. The du!y of Churchill, the treasurer elect, was to present to Garland, the governor, and no one else, a good and sufficient bond, and it became the immediate duty of Garland as governor, to approve it. He might have been under the moral obligation of taking his own name off the bond as one of the sureties. Indeed it may have been his moral duty never to have signed it; but his legal duty as governor was to act on the bond when presented, whether he had done right or wrong; whether he had acted prudently or imprudently previously in relation thereto as a private citizen.
5. Alteration:
Notice of, to obligee.
Much of the apparent difference of opinion expressed in the adjudicated cases, grows out of difference of opinion as to what erasures and alterations are material and what are not. And this difference has seemingly carried some judges to the very verge of relieving the obligee of all responsibility as to alterations appearing upon the face of an obligation, and holding him responsible only when he has been made acquainted extraneously, wi^h all the facts and circumstances connected with the very act of erasure, or of making the alteration otherwise. Thus, in the case of Russell v. Freer, 56 N. Y., 67, the name of J appeared in the body of the bond when H and F signed, and they were told at the time by C, the principal obligor, that J would sign the bond. It transpired that the name of J was subsequently, but before delivery, stricken out without the knowledge or consent of H and F, and the bond was then delivered to M, the obligee, who had no knowledge of the facts, and who thereupon received it for the purpose for which it was intended, thei’eby incurring responsibility, relying thereon. J never signed the bond, and therefore there was no erasure of his name as signed by him. In that case the court held H and F bound.
The principle enunciated in that case is this : There being no erasure of the surety as signed by him, the erasure of his name in the body of the bond, is not such a material alteration as to create suspicion that the bond is not genuine, and therefore is not such as. to put the obligee on notice and inquiry; and that in such case he can only be affected by actual notice. The same rule, defining what erasures appearing upon the face of an obligation, are not. such as to put the obligee on notice, is laid down in Cutter v. Whittimore, 10 Mass., 442.
The rule above stated is in no wise in conflict with the rule applicable to the case now under consideration; that is to say, that where the name of a surety, both in the body of the instrument and as signed by him, is erased, and so appears to the reader, the alteration is such as to put the obligee upon notice. There are no exceptions to this rule among the authorities, so far as our research bas extended, and the following are cited to show the argument: Smith v. United, States, 2 Wall, 216, supra; Dair v. United States, 16 Wall, 1; Craig v. The State, 58 Iowa, 238 supra; Sharp v. United States, 28 Amer. Decis, 676, and notes.
Same.
A surety signing a bond on express condition that all 6. named in the body shall sign, is released if one of them does not sign, and his name is erased from the body. (Inhabitants of Redfield v. Shaver, 50 Maine, 36; Fletcher v. Austin et al., 11 Vermont, 447.) "Where the obligee is, otherwise than by an inspection of the obligation, and before the same is accepted by him, informed of the facts and circumstances connected with the alteration, he is of course affected with notice, and if he accepts the obligation, the sureties, not assenting to the change, or ratifying the obligation1 in its new shape, will not be bound. Martin v. Thomas, 24 Howard, 315; United States v. O'Niell, 19 Fed. Rep., 567.
The name of Radcliffe, one of the sureties on the first of the bonds now in suit, having been erased both in the body of the bond, and as signed by him at the end, the alteration was sufficient to put the obligee on notice and inquiry, that possibly the bond was not genuine, or had been materially altered, so as to increase the liability of the obligors, and it was the obligee’s duty to decline to accept it, and thereby protect innocent parties; and failing to do this, and being unable now to account for the alterations otherwise than as rendering the bond void as to the non-assenting sureties, they are, by all the rules known to- the law, released. Greenleaf’s Evidence, 564; Miller v. Stewart, 9 Wheaton, 680.
There are few cases in which the sureties are made re-sponsible for the alterations made by their principal while the bond is in his hands for completion, as for the acts of an agent, under the rule (good in another class of cases) that if one of two innocent persons (the surety and obligee), must suffer from another’s (the principal’s) acts, he ought to be the sufferer who first reposed confidence in the wrongdoer. This is the doctrine enunciated in the case of the Wilmington & Weldon R. Co. v. Kitchen, 91 N. C., 39. Besides being unsupported by precedent, the doctrine has not the strength of argument that the more general rule has.
A surety is everywhere in law a favored debtor. He is moreover a necessity in many of the most important business transactions of life, both public and private, and the policy of the law is, that he should be favored more than other debtors, since he is or may be to a certain extent powerless to protect himself. To hold him bound by the acts of the principal in increasing his liability without his knowledge and consent, by altering his contract, might be ruinous to him. There is nothing ordinarily in the situation of the parties, to work as a restraint on the principal obligor in regard to the rights of his sureties. The obligee, however, occupies a situation which- makes it easy to impose a commensurate penalty upon him for his failure to protect the rights of the innocent surety. Hence, affected with notice in any of the ways pointed out by the law, he dare not fail to protect the surety; for if he does the surety is no longer bound to him. The rule is founded upon reason and justice, and any other conflicting with it mnst be discarded.
The attitude of A. H. Garland, one of the sureties on the first bond, and also governor of the state, and who approved the same, is such as to make his case a novel one.
7. Same: tion?tl9oa
As the governor he was the head of the executive department of the state government, and one of the duties imposed upon him as such, was to approve the official bond of the treasurer and other state officers, when presented to him for that purpose.
In the case of Marbury v. Madison, 1 Cranch, 49, the Supreme Court of the United States, through Chief Justice Marshal], said: “By the constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.”
Emphasizing this principle, this court, in the case of Hawkins v. The Governor, 1 Ark., 570, said: “All the departments of the (state) government unquestionably have the right of judging of the constitution and interpreting it for themselves. But they judge under the responsibilities imposed in that instrument, and are answerable in the manner pointed out by it. Ths duties of each department are such as belong peculiarly to it, and the boundaries between their respective powers or jurisdictions are explicitly marked out and defined.” And in speaking of the gov. ernor, the court say further: “It is no answer to this argument to say that he may exercise his legal and constitutional duties in such a manner that individual injustice may be done without remedy or redress. So may the other departments.” “The court can no more interfere with executive discretion than the legislature or executive can with judicial discretion.” It is said, furthermore, that the constitution assigned to the governor no merely ministerial duties; neither can the law impose upon him any such.
We are then not permitted to judge of A. H. Garland’s act in approving or otherwise dealing with the bond in question, as governor of the state. More than this, we are forbidden to do so, either in censure, criticism or comment.
Our task is to separate the official from the private individual, who, we find, is one of the sureties on a bond, from the obligations of which he claims to be released. In other words, we are to deal with him just as we would deal with one of his co-sureties, who had, before the delivry of the bond, observed the erasure of the name of Rad-cliff’e therefrom. We take occasion to say in the outset that if a surety, affected with that kind of knowledge as to the erasure, is to be released, it is more on the grounds that the court has released some.of his co-obligors in response to their pleas than because of the erasure itself.
Dealing with him as if he were another individual than the governor of that name, he would be released on the same plea that his co-sureties have been released, except that he occupies a different position as stated. In response to that he claims that, notwithstanding his after knowledge of the erasure, he never waived his right to claim his release; he never assented to the alteration, nor ratified the bond as altered, and never did anything in relation thereto by which he is estopped from making this his defense.
The evidence does not show that the surety knew anything about the erasure until after it was made. In such case there can be no assent; for assent, technically speaking, must precede in point of time the thing assented to.
The evidence is equally at fault to establish a ratification, which, in point of time, must succeed the thing ratified, because acts or words amounting to ratification must be affirmative in their character, and such as in fact would be sufficient to amount to the making of a new contract.
There is no better settled principle than that to hold one bound by any word or act as a waiver, it must be shown that he so spoke or acted with a knowledge of all the facts and •circumstances attending the creation of the right he is alleged to have waived. The rule most usually finds its application in the cases of indorsers of commercial paper, but it is none the less applicable to the case of a surety on a bond er other obligation. Spurlock v. Union Bank, 4. Hump., 337; Cramer v. Perry, 17 Pick., 335; Robinson v. Bulloch, 72 Me., 637; Dodge v. The Minn. Co., 14 Minn., 49; Lyon v. Toms, 11 Ark., 205; Parker v. Douglass, 28 ib., 65.
Waiver.
Nor is it sufficient that he should have notice of facts that, if followed up by inquiry, would have led to information that would have shown that he was discharged. (Thornton v. Wynn, 12 Wheaton, 187.) Nor is there a waiver where one acts on a misapprehension of facts. Spurlock v. Union Bank, 4, Hump., 337, supra.
It is urged that Garland, as surety, with the knowledge of the erasure before the bond was filed, is now estopped from claiming his release on account of its invalidity by reason of the erasure.
10. Estoppel:
That theory is good only in case the surety has intentionally done something to injure the obligee, or has been guilty of such gross negligence as to amount to fraud. Bryant v. Virginia Coal and Iron Co., 93 U. S., 33.
There is nothing in the case to show such intent or such negligence, even if a surety be in any event answerable to the charge of negligence on account of his silence. Miller v. Gilleland,, 7 Pa. St., 119.
Mr. Garland’s case, on principle, is not unlike that of the two sureties in the case Howe v. Peabody, 2 Gray, 556, who signed after the alteration was made, and who were released, not directly because of the alteration, as because the sureties, who signed before the alteration was made, were released by law, not having any knowledge of the alteration. The statement of the court in that case, that the last sureties had no knowledge of the alteration, evidently had reference to their want of knowledge of the circumstances attending the alteration, the same being evidently such as they would have seen.
We conclude, therefore, that Mr. Garland is also released from liability as a surety on the first bond.
11. Escrow bonl'^on? ditionaiiy.
The special pleas of S. W. Williams, surety on the first bond, that he signed the same conditionally, and that ho ¿e^vere¿ same as ail escrow to the principal defendant, Churchill, not to be delivered finally until certain things were done, are not sustained by the law and the evidence, except as to the first.; and not as to that, except the retention of Radcliffe’s name on the bond, which he regarded as one of the conditions of his signing; that being the only condition not performed.
The rule in such case is this: When the condition is suggested to the obligee by the thing appearing upon the face-of the bond, or is brought to his knowledge by extraneous evidence, before he accepts it, then the plea of conditional execution is good, otherwise not. It is needless, however, to discuss the subject further, as the object of the plea is fully attained by the plea of non est factum. The plea that, the bond was delivered, to the principal obligor, Churchill, as an escrow, cannot be sustained, because Churchill was in no sense a third party or stranger, but was occupying the most important relation to the bond and all its other obligors, as well as to the state, the obligee.
12. Appro§reatb0int°s eral terms,
If will he seen from the report of the special master that defendant, Churchill, disposed of $165,000.00 of Lough-borough bonds during his first term, presumably all for state scrip, and accounted for only $6,000.00 of the same, leaving $159,000.00 unaccounted for in any way. The- report shows also that during his second term he disposed! of $45,000.00 of the same class of bonds and accounted for none of them. In each ease the law required him to make a proper list of the scrip tendered for the bonds, have it certified by the burning committee, and then deliver the scrip to that committee to be burned, and the bonds to the purchaser thereof. The certificate of the burning committee was the only lawful voucher he could take for scrip received for bonds. Failing in any case of the sale of' bonds for scrip to take this certificate, the presumption was that he still held the scrip. In December, 1877, after all the bonds referred to above had been disposed of, defendant, Churchill, as treasurer, having on hand a large-amount of state scrip which he had received from time to time from the beginning of his first term until then — near-the close of the first year of his second term — caused the same to be destroyed under the provision of another act of the legislature than that under which the Loughborough bonds were issued, and the scrip received therefor was canceled. Of this amount of state scrip which he caused to be canceled and destroyed in December, 1877, he* with the approval of the cancellation committee, appropriated $145,000.00 to his Loughborough bond account generally,. The special master placed $45,000.00 of this amount to the-credit of the bond account of the second term, balancing-the same exactly; leaving $100,000.00 which he applied as. a credit to that account of the first term; and deducting-that credit from the debit, there remained for the first term, unaccounted for and as a charge against defendant,. Churchill, the sum of $59,000.00 of these bonds. This appropriation of the special master was adopted by the court, below, and comes up for our consideration on exception by the plaintiff to the report of the special master, and the decree of the court confirming the same.
The general rule is, that an unaccounted for debit balance should be charged to the term or period in which the default or breach of duty occurred. But the difficulty in this instance is to determine in which term the breach occurred. True, in the first term $159,000.00 of bonds were disposed of and are unaccounted for, yet the same thing may be said of the $45,000.00 of bonds disposed of in the second. In both instances the breach of duty — the breach of the official bonds — consisted in not taking proper vouchers for scrip delivered up to be burned, and in delivering the bonds to purchasers without first taking these vouchers. In the one case there is a defalcation of $159,000.00, and in the other a defalcation of $45,000.00. The scrip burned in December, 1877, and appropriated to this bond account, so far as we can know from the evidence, had no connection with the bonds disposed of and unaccounted for. Defendant, Churchill, might perhaps have appropriated the scrip to the full satisfaction of his bond account of one term and the balance to the other, but he made no such appropriation, but left that to be done by the court as the kw directs. The court can find no rule of kw which would apply the credit to the one term more than to the other, because we cannot know from the evidence when the credit assets came to hand. We cannot even entertain a reasonable presumption that any particular portion was taken in during one term and the remainder in the other. Under this state of things the court is authorized to make no other than an equitable appropriation. We, therefore, adopt the rule kid down by Chancellor Walworth, in Seymour v. Stone, 15 Wendell, 19, and appropriate the $145,000.00 ratably between the $159,000.00 and the $45,000.00 debits, and this accordingly is done.
The plaintiff also questions the justice of the appropria tion of the item of $9589.04 on the sinking fund account, as a charge against the third term instead of the second term. The first error was committed by entering an erroneous credit of that amount in the last quarter of the second term. This -was attempted to be corrected by charging the same amount to the account of the first quarter of the third term. This was proper as between Churchill and the state, but the case is very different, and more difficult of solution, as between the two sets of sureties on the second and third bonds.
The credit having been taken in the second term for so much money paid out, without a voucher to substantiate the truth of the payment, or to show to whom it was made, constitutes of itself a breach of the bond for that, the second term. There is no evidence which satisfactorily explains the matter. The charge of the same amount back in the third term is no explanation whatever, nor does it purport to be.
The $9589.04 appropriated by the chancellor as a charge against the third term must, under the rule governing such cases, and in accordance with the authorities, be charged against the second term and its obligors. See Vivion v. Otes et al., 24 Wis., 518; Inhabitants of Rochester v. Randall, 105 Mass., 295.
The decree of the chancellor is reversed as to the appropriation of credits and debits as herein indicated, and affirmed in other respects; interest at 6 per cent, on all amounts adjudged from date of his decree; that portion of it distributing the costs being modified, so that two-thirds of the cost be adjudged against defendant, Churchill, and one-third thereof against him and his bondsmen for the second term herein sued; and the clerk will make up the decree in accordance with the opinion.
Hon. S. R. Cockrill, C. J., and Hon. B. B. Battle did not sit in this case. Argued before Hon. W. W. Smith, J., and H. G-. Bunn and Geo. P. Smooth, Special Judges.
SUPPLEMENTAL OPINION ON MOTION TO MODIFY DECREE.
Smoote, Special Judge. The motion to modify the decree in this case is based upon two grounds: Eirst — because the court found that the sum of $9589.04, for which Treasurer Churchill erroneously took credit on sinking fund account for auditor’s warrants redeemed in currency, in the latter part of his second term, and with which he again charged himself in his third and last term, was a defalcation in, and chargeable upon him and his sureties for his second term. And, second — because the court made an equitable appropriation of the $145,000 burned scrip, for which he is allowed credit on Loughborough bond account between the shortage appearing on that account in his first and second terms, instead of following the report of the master, and appropriating enough of it to entirely discharge that account for the second term, before appropriating any of it to the shortage in the first term.
1. It is urged an behalf of the sureties on the second bond, that the erroneous credit of $9589.04, taken in the second term, was rectified by the charge of the same amount in the third term and that the charge and credit set-off each other, so that both became as though they never had been made — in the end neither increasing nor diminishing Treasurer Churchill’s liability in any way; and that, as the master, in his report, paid no further attention to this matter than to note the facts, this court ought not to have taken it into consideration in making up its decree. We cannot agree with this view, taking all the facts into consideration, so far as the liability of sureties is concerned. Of course we have considered no fact not devel oped by the record, but it is thereby developed, whether the master presents it in statement of Treasurer Churchill’s accounts or not, that he did take the erroneous credit in his second term. If is evident that if Churchill’s account had been made up by the master in full for the second term, he would have been charged in that account with the sum in dispute; and it is equally evident, and plainly appears from the record in the case, that Treasurer Churchill did, as shown by his own books, at the termination of his second term, owe that amount to the state, as its treasurer, by reason of the said erroneous credit taken in that term. Therefore, there was at that time a clear breach of his bond upon which he and his sureties for the second term were liable; and that liability continues unless the deficit has been made good. It cannot, by mere book entries, be transferred to another set of sureties. Treasurer Churchill had the right, and it was his duty, to rectify this error even in his third term, by charging himself again with the amount and restoring the money to the treasury, if not there at the time he so charged himself. But he could not do so by simply recharging himself with it, so as to release the sureties on the second bond from the breach thereof, and impose that liability on the sureties upon the third bond. If Treasurer Churchill had charged himself in his third term with the other erroneous credits he took in his second term, in the German Bank transaction, we presume that, so far as the liabilities of sureties are concerned, it would not be contended that these entries would have become myths not to be taken into consideration. All these credits stand upon the same footing, the only difference between them being, that in the one case the treasurer did not recharge himself, and in the other he did. It .appears to us that such a course of transferring liabilities on the the part of bonded officers ought not to be tolerated. If it were to be, such officers might go on from year to year, ■taking improper credits in one term, and charging themselves again with them in a subsequent term, thereby bringing detriment to the public service, and upon final default throwing the whole burden upon the last set of sureties. If it can be helped, justice ought not to be permitted to be strangled by such book-keeping. As an illustration of the point we are endeavoring to bring out, take the case of an administrator. He has filed a settlement in which he has taken credits to which he is not entitled. Afterwards he is required to give new bond, which he does, and his sureties on the old one are discharged. In a subsequent settlement he again charges himself with >the amount of the erroneous credits, but never makes the deficit good by actually bringing back that amount, and administering it as part of the estate. In such a case the liability would surely rest upon the sureties on the first bond, in whose time as such sureties, the deficit occurred. And so it is here, if there is a deficit in this case which has not been actually made good. We have hereinbefore shown that as to the matter in question, there was an actual breach of the bond for the second term; and it is clear also, from the records, that the treasurer’s account for his third and last term is burdened by charging them in this erroneous credit of $9589.04, which constituted this breach of his bond for his second term. And upon examination of summary three, of the master’s report,'we find that the treasurer, so far from making that breach good, is upon final settlement of his third term account* still due the state the sum of $18,407.86 in currency.
2. We do not think there is anything in the objections* taken in argument, to the exceptions of the state below* as to the matters to be considered under the second proposition. It appears to us that these exceptions are amply sufficient to let in that matter for our consideration. But it is further urged, on behalf of the sureties on the second bond, that the court was not justified by the evidence in departing from the conclusions of the master in this respect, by making an equitable distribution of the $145,000 burned scrip, credited to the Loughborough bond account. The state showed the treasurer took in scrip on his Lough-borough bond account, during his first term, to the amount of $165,000, of which $6000 were burned in that term, leaving a balance of $159,000; and that he took in on the same account, during his second term, scrip to the amount of $45,000, making together with the $159,000 above mentioned, the sum of $204,000. It was then further shown, that in December, 1877, $45,000 of scrip "was burned, and credited on Loughborough bond account, leaving $5,9000 unaccounted for. This is certainly sufficient to entitle the state to recover. But the trouble arises in determining how much of the burned scrip shall be credited to the first term, and how much to the second term. We have nothing before us to show how much of it was taken in during the first or second term — in fact, we have nothing to indicate to us, with any degree of clearness, that any of this scrip was taken in on account of Loughborough bonds. We have just as much ground under the facts before us, for appropriating the whole of the $145,000 as a credit to the first term, as we have for appropriating a sufficient amount of it to fully discharge the account for the second, before appropriating any of it to the first term. Such appropriation in either case would be arbitrary. Now, this matter could not be permitted to hang in eternal suspense, and it was the duty of the court to find some way out of the difficulty, if it could, in accordance with recognized principles, rather than to dispose of it in an arbitrary manner. We adopted the recognized principles of equitable distri bution, which we regard as just to all parties, and the only proper way to solve the legal problem before us in this matter. The authorities which we regard as sustaining these views, are fully cited in the original opinion in this case, and we deem it unnecessary to repeat them here.
The motion to modify the decree is overruled. | [
-78,
120,
-39,
-4,
-54,
96,
42,
-102,
97,
-30,
39,
-13,
125,
75,
-108,
43,
-25,
123,
82,
98,
87,
-73,
55,
67,
-14,
-45,
-22,
-36,
-75,
-49,
-18,
28,
76,
-72,
66,
-43,
70,
-102,
65,
26,
110,
29,
-88,
-31,
-7,
-128,
48,
95,
17,
76,
117,
71,
-77,
44,
-104,
103,
105,
43,
104,
-72,
-12,
80,
-116,
4,
127,
4,
19,
103,
-76,
103,
88,
12,
-128,
27,
1,
-23,
-72,
-74,
-122,
116,
47,
57,
0,
96,
98,
-111,
113,
-61,
-108,
-119,
46,
-6,
-97,
-122,
-109,
88,
11,
44,
-74,
-99,
125,
0,
39,
-34,
-22,
20,
22,
96,
7,
-114,
-74,
-93,
-115,
86,
-98,
43,
-30,
-125,
0,
113,
-52,
-94,
92,
71,
30,
91,
-114,
-4
] |
Smoots, Sp. J.
The appellants, Butler, Gibb & Co., sued Frank M. Henry and others, as partners, under the firm, name of the “Carolina Building Company,” on an account for shingles, of the date of July 24, 1878, for the sum of $141.63.
The issues were disposed of as to the other defendants without contest; but Henry answered, denying, in substance, that he was a member of said company at the tim© of the making of the contract sued on, and his liability on the same.
The verdict and judgment were for Henry, and Butler,. Gibb & Co. have brought the case here by appeal.
The only question before us is upon the exclusion of certain evidence offered in the court below by appellants.
Gibb, on the part of appellants, testified that Sewell, one of the defendants, bought the goods for the Carolina Building Company, and that they were shipped according to Sewell’s instructions, to Sherman, Texas, the nearest depot to defendants at that time ; and he further testified that he did not know who composed said company. In connection with Gibb’s evidence, the appellants offered the depositions of G. B. E. Maxwell, with exhibits, and the deposition of C. E. Mitchel, as tending to prove that Henry was a member of the company at the time the contract sued on was made, and as such liable thereon.
The substance of Maxwell’s deposition is, that he became acquainted with the company in September,-1878, through business transactions with it, which continued up to 1879* and that while these transactions were pending, Henry was held out to him as a member of the company; that during that time a number of written contracts were entered into between witness and the company, in which Henry joined as a member. These contracts were made-exhibits to Maxwell’s deposition.
The substance of Mitchell’s deposition is this: He prepared the contract, exhibit A, to Maxwell’s deposition, of the date of September 9, 1878. At the time of preparing said contract, or a few days before, he saw Henry in Hope, Arkansas, in company with Sewell and Treadway, or one-of them, and in the course of conversation learned that Henry was a member of said company, and interested with it in a contract to build a court house in Cook county, Texas. Witness learned this from Henry, or from his conversation with others in the presence of witness.
Certain recitals contained in exhibits C and B to Maxwell’s deposition are also relied on by appellants. They are in substance as follows: Exhibit 0.(which was executed on the 18th day of October, 1878, by Sewell, and was ratified by Henry and others as members of the company), recites, substantially, that Sewell, on the 25th of March, 1878, made a contract with Cook county, Texas, to build a court house, etc. And exhibit B (which was executed on the third day of May, 1879, by Henry and others, as members of the company), recites as follows : “That, whereas, on the 18th day of October, 1878, Jesse P. Sewell, as a member of the Carolina Building Association, for himself and said association, entered into a contract in writing with Granville B. E. Maxwell, whereby the said Sewell granted, bargained, sold and assigned, aliened and conveyed unto said Maxwell all the right, title, claim, interest and equity, which said Sewell himself, and the said building association had in and to a certain contract, before that time entered into by said building association with_the county of Cook, in the state of Texas, for the erection of a county court house in said county and state,” etc. And further on, in' the same instrument, the parties executing the same (Henry, among others) styled themselves, “we, the members of the Carolina Building Association,” etc.
These depositions of Maxwell and Mitchell, and the exhibits, were excluded by the court below, and the point before this court is, as to whether they were properly excluded.
1. Partnership:
Presumption ofcon'tinuance.
The legal proposition urged by the appellant is,' that when the existence of a personal relationship or state of things is once established by proof, the law presumes the same to continue until the contrary is shown, or a different presumption is raised by the nature of the subject in question ; and that the existence of a partnership, having been once proved at a particular time, will be presumed to continue until a dissolution is proved. This position is conceded by appellee, and is wTell supported by authority. 1 Greenleaf on Evidence, secs. 41, 42; Irby v. Brigham, 9 Hump., 750; Eames v. Eames, 41 N. H., 177; Montgomery Plank Road v. Webb, 27 Ala., 618; Sullivan v. Goldman, 19 La. Ann., 12; Mullen v. Pryor, 12 Mo., 307; Leport v. Todd, 32 N. J. L., 124; People v. McLeod, 1 Hill (N. Y.), 377; Hood v. Hood, 2 Grant Pa., 229; Prather v. Palmer, 4 Ark., 456.
And the appellant insists that the evidence excluded •tended to prove that Henry was a partner in the said building company on the 25th of March, 1878, and that under the legal rule stated above it ought to have been admitted.
On the other hand the appellee insists that, while it is •true that a relation once shown to exist, is presumed to continue, the presumption is entirely prospective — relates -to time subsequent to that at which the relation has been shown to exist, and does not refer to any period anterior thereto. This, according to the authorities, is also the law. Murdoc v. State, 68 Ala., 589; Barrelli v. Lytle, 4 La. Ann., 557; Erskine v. Davis, 25 Ill., 256.
ofd debts?r
And, as a general rule of law. a new partner coming into a firm already existing, is not liable upon its previous contracts. He must in some way or other than by merely becoming a partner, undertake to become thus liable before he can be so held. Lindly on Partnerships, 390, et seq.
The evidence rejected shows prima facie that Henry was a partner as early as about the 1st of September, 1878, .and that a partnership existed under the firm name of the “Carolina Building Company,” as early as March 25, 1878, and that on that date Sewell, for said company, contracted with Cook county, Texas, to build a court house; and that said contract was made before the purchase of the shingles ; and if the mere existence of the partnership, before that purchase, were the question at issue, it is prob.able that the evidence ought not to have been rejected.
That, however, is not the issue. The issue is this : Bid the partnership exist at the time of the contract sued on, with Henry as a partner in it. He does not deny that the partnership existed at the time the goods were bought,, but that he was a member of it at that time ? And we have been able to find nothing in the rejected evidence-tending to show that Henry was a member of the partnership on the 25th of March, 1878, or had anything to do with the making of the contract of that date for building-the court house ; or that he was a member of the partnership at the time of the purchase of the goods sued for.. Henry’s execution of the instruments made exhibits to Maxwell’s deposition, which was subsequent to the purchase of the shingles, only tends to show that he was, at the time he executed them, a member of the firm, and as-such, had then acquired an interest in the contract for building the court house ; and not that he was a member or had acquired such interest in March or July previous;, nor does it tend tp show that Henry had, in any way agreed to become liable for the partnership debts made prior to his coming into it. We are therefore of opinion that the rejected evidence was not pertinent to the issue,, and that the court be.low followed the law in .refusing to admit it.
The judgment is affirmed.
Hon. B. B. Battle did not sit in this case. | [
-16,
98,
-20,
-50,
8,
96,
24,
-102,
75,
35,
-11,
87,
-19,
-28,
76,
113,
-25,
77,
-48,
122,
-25,
-109,
18,
123,
-110,
-13,
-21,
-51,
-79,
79,
-12,
-33,
76,
36,
-54,
-99,
-94,
66,
-51,
28,
-54,
-91,
60,
-20,
-35,
16,
52,
122,
52,
79,
117,
-116,
-13,
40,
28,
-53,
77,
62,
109,
41,
-48,
113,
-120,
7,
125,
7,
48,
102,
-104,
7,
-8,
30,
-112,
52,
0,
-88,
115,
-92,
6,
-12,
13,
9,
8,
50,
103,
2,
-127,
-85,
-56,
-80,
7,
-98,
-103,
-90,
-96,
9,
-109,
105,
-67,
-99,
114,
16,
-105,
-12,
-4,
-43,
25,
124,
-123,
-49,
-108,
-126,
-105,
-90,
-97,
19,
-29,
15,
-80,
81,
-49,
-94,
93,
6,
50,
-101,
-113,
-48
] |
Smith, J.
Thomas G-. Harrison and his three married sisters had inherited from their father eighty acres of land. Their mother was also th"e owner in her own right of one hundred and twenty acres. With a view to provide her children with homes, the mother was willing to put her lands into hotchpot, and receive for her share a life estate in the part that should be allotted to her son. The two tracts contained five lots of forty acres each, lying contiguous, and were of the aggregate value of $1000, but were not susceptible of convenient division into four parts. Mrs. Eelton, one of the children, therefore sold her interest to Leigh, the husband of one of her sisters. A partition was then agreed upon, by which two whole lots and the half of a third lot, all of which were specified, were to be al lotted to the Leighs, and the remaining lands to be divided, in certain definite proportions, between the others. Being illiterate persons and unable to transact such business intelligently, they called in a justice of the peace, upon whom they relied to draw the papers to carry into effect their intentions. Leigh having in the meantime sold the half lot which fell to him to Thomas G-. Harrison, the same w^s, with the knowledge and consent of Mrs. Felton, conveyed directly to Thomas G., along with his own allotment proper, by the other parties in interest. Leigh directed the share he had purchased to be conveyed to his wife; and the justice, instead of including the two lots in one deed, drew a conveyance of one lot to Mrs. Leigh and of the*other to Mrs. Felton, and then a reconveyance of the latter by Mrs. Felton to Mrs. Leigh. He then drew two notes for $125 each, which Leigh signed and delivered to Mrs. Felton, purporting to be for the purchase money of the lot which the justice had assigned to her in his division. The two lots varied greatly in value. One lay in the prairie, and was worth not exceeding $50. The other was in the timber, and worth about $375. When the notes fell due Leigh was unable to meet them. And when the papers were examined it was discovered that Mrs. Felton had been placed in the attitude of selling the comparatively worthless tract in the prairie, and that an attempt had been made to confine her lien to that tract. She, therefore, filed her bill, charging that the above-mentioned result had been brought about by the fraud of Leigh and the connivance of the justice, and praying for a reformation of the instruments so as to make them conform to the intention of the parties, and for the enforcement of her lien as vendor against the entire tract held by Mrs. Leigh. Leigh and his wife denied the charge of fraud and collusion. The circuit court found that the prairie lot and the half lot subsequently sold to Thomas G-. 'Harrison had been set apart to Mrs. Felton as her share, and that, no fraud having been practiced, her lien must be restricted to those tracts.
The clear preponderance of the testimony is that Mrs. Felton was no party to the partition further than to join in the necesssry conveyances to carry it out. No lands were allotted to her; but a double share was allotted to the Leighs on account of her previous sale to them. Such was the understanding of all the parties to the arrangement except Mrs. Leigh. What was sold to Leigh was her undivided one-fourth share of the two hundred acres. This interest was afterwards defined, by the voluntary partition, to one half of the one hundred acres that were assigned to the Leighs. It is, therefore, to this that her vendor’s lien attaches. And her right to relief does not depend altogether upon her ability to prove the active fraud of Leigh in the matter. It may be based on the blunder of the justice of the peace. The instruments do not express the agreement of the parties. There is, indeed, reason to believe that Leigh never intended to pay for the land. He did not venture to testify in his own behalf; and this is a suspicious circumstance in cases of this kind. Bowden v. Johnson, 107 U. S., 262; McDonough v. McNeil, 113 Mass., 96.
Mrs. Felton has no recourse upon the twenty acres which Leigh sold to Thomas G-. Harrison; nor does she claim any right to resort to it. That parcel was sold by her consent, and the price of it has been paid to Leigh.
The decree is reversed and cause remanded, with directions to reform the instruments in accordance with this opinion, and to declare and enforce a lien in favor of plaintiffs upon an undivided one-half interest in the two tracts of forty acres each that were conveyed to Mrs. Leigh. | [
-14,
112,
-116,
61,
58,
-8,
42,
-102,
104,
-5,
-26,
-13,
-51,
22,
17,
57,
-94,
-87,
-63,
-23,
-10,
-29,
95,
33,
90,
-45,
-75,
-51,
52,
77,
62,
-41,
77,
52,
-54,
29,
-58,
-94,
79,
28,
14,
-123,
41,
-21,
93,
32,
62,
111,
20,
72,
117,
14,
-13,
46,
61,
89,
12,
46,
-19,
-87,
-47,
-8,
-70,
-122,
27,
14,
48,
80,
-108,
67,
-56,
14,
-112,
21,
-128,
-24,
83,
50,
18,
84,
13,
-119,
8,
44,
102,
112,
-20,
-17,
48,
-100,
46,
-73,
-115,
-93,
-57,
72,
2,
-32,
-66,
-100,
-35,
80,
2,
116,
-22,
5,
29,
104,
-122,
-53,
-42,
-125,
13,
120,
-116,
27,
-13,
30,
32,
113,
-53,
-125,
76,
101,
116,
-101,
-113,
-7
] |
Cocicrill, O. J.
The appellants’ complaint in equity ^ against the appellees, to compel them to account for the proceeds of cotton which it was alleged they purchased from the appellants’ tenants with notice of the landlord’s lien, wa3 dismissed by the court upon demurrer.
l. parties: by°onetrfor another. °f
The suit was instituted within the life of the lien by J. W. Dickenson alone. The complaint discloses that the land belonged to his wife; that in leasing it for the year in question he acted as her agent; but that the contract was made by him with the tenants in his own naiiie. A note for the rent executed by the tenants and containing the terms of the lease is made a part of the complaint, and is payable to the “order of J. W. Dickenson, attorney.”
After the time for instituting suit to enforce a landlord’s lien had expired, Dickenson’s wife, the real party in interest, was made a party plaintifi' with him, and the appellees’ argument is that this must be regarded as the real date of beginning the suit, and that it is by the adjudged cases out of time.
The statute provides .that every action shall be prosecuted by the real party in interest, except that “ an executor, administrator, guardian, trustee of an express trust, a person with whom, or in whose name a contract is made for the benefit of another, or the state, or any officer thereof, or any person expressly authorized by the statute to do so, may bring an action without joining with him the person for whose benefit it is prosecuted.” Mansf. Dig., sec. 4936.
It is apparent that J. W. Dickenson is not the real party in interest, but he is a party with whom and in whose name a contract is made for the benefit of another, and as such he comes within the limitation upon the general requirement as to interest made by the statute cited, and is authorized to sue in his own name, notwithstanding the beneficial interest is in another. This provision is found in the codes of other states, and it has generally received the construction which its language obviously indicates. Bliss Code Pldg., secs. 55, 53; Pomeroy's Remedies, sec. 175 ; Considwant v. Brisbone, 22 N. Y., 389; Pitney v. Glens Falls Ins. Co., 65 ib., 6-18; Scantlin v. Allison, 12 Kan., 85 ; Rice v. Lareny, 22 Iowa, 471; Ely v. Porter, 58 Mo., 158; Durfree v. Morris, 49 ib., 55; Pindall v. Trevor, 30 Ark., 249.
In Boyd, as trustee, v. Jones, 44 Ark., 314, it was held that the person to be beneficially interested was a necessary party to that suit because the object of the bill was not only to collect the fund, but to have the court administer or distribute it; but it is there said that if the only object was to recover the fund so as to enable the trustee afterwards to distribute it agreeably to the trust, it was unnecessary to bring before the court the parties beneficially interested.
2. Same: Samo: Amendment.
The only object of J. W. Dickenson’s suit was to collect the rent. The resort to equity was made necessary only by reason of the change in the form of the property upon which the lien was impressed. (Reavis v. Barnes, 36 Ark., 575; Anderson v. Bowles, 44 ib., 110.) This suit- in no wise affected his relations with his wife, who held the beneficial interest, and she was not a necessary party. Carey v. Brown, 92 U. S., 171.
It is not essential, however, that the party in whose name a contract is made should become plaintiff. The real party in interest may sue, as was done in the case similar to this, of Nolen v. Royston, 36 Ark., 561; Hunnicut v. Kirkpatrick, 39 ib., 172; Bliss Code Pldg., sec. 58. As this suit was legally instituted by J. W. Dickenson within the time prescribed by the statutes, the defendants could sustain no injury by permitting the person holding the beneficial interest, and who might have sued alone or as co-plaintiff with J. "W. Dickenson, to be joined as party plaintiff at any time after the institution of the suit. Wilkelmaier v. Weaver, 28 Mo., 358; Price v. Wiley, 19 Texas, 142.
It is further insisted that the order of dismissal is right because the contract shows that the amount claimed is for rent and the hire of personal property combined without separating the two, but this fact does not destroy the equity of the bill to enforce whatever lien there may have been upon the cotton for rent of the land. Harris v. Hanks, 25 Ark., 510. The amount due as rent is a question of fact to be determined by the proof (Varner v. Rice, 39 Ark., 344 ¡ Roth v. Williams, 45 ib., 447), and the bill alleged that the hire of the property named was worth nothing, and the whole amount claimed was for rent of the demised premises.
3. same: forcetoi!en for rent, &<i
The appellees could take nothing upon their demurrer.
We have avoided saying anything about the allegations in the bill seeking to compel the appellees to account for money collected by them upon a policy of insurance against loss by fire on a part of the crop. The facts are indefinitely set forth, and the question has not been argued by counsel. Sufficient is seen to reverse the decree and the parties can make their issues as to this question, if desired, in a more tangible form.
Reverse and remand, with directions to overrule demurrer. | [
112,
106,
-4,
-115,
-86,
96,
42,
-102,
-13,
-95,
39,
-45,
-7,
-58,
88,
37,
-15,
41,
81,
106,
69,
-78,
23,
98,
-10,
-109,
-45,
85,
-67,
79,
-25,
-41,
76,
49,
-62,
21,
-62,
-126,
-63,
20,
74,
-127,
-117,
64,
-7,
64,
48,
-7,
17,
79,
81,
-41,
-85,
44,
113,
67,
74,
46,
-2,
57,
-16,
-32,
-97,
-108,
95,
6,
-77,
7,
-116,
-61,
-54,
78,
-104,
53,
33,
-32,
83,
-74,
6,
84,
15,
24,
9,
98,
98,
34,
-27,
51,
24,
-104,
46,
114,
29,
-121,
-79,
88,
10,
40,
-66,
-97,
124,
5,
-25,
118,
-4,
-99,
30,
104,
3,
-113,
-106,
-79,
37,
-14,
-102,
-125,
-17,
38,
49,
97,
-49,
-88,
92,
101,
19,
-101,
-114,
-102
] |
Smith, J.
The relator invokes our original jurisdiction, under sec. 5, of article 7, Constitution 1874, to determine by what authority Benjamin E. Askew assumes to exercise the functions of judge of the Thirteenth judicial circuit.
His petition sets forth that under an act of the general assembly, entitled “ an act to create the Thirteenth judicial circuit, and fixing the times of holding the courts,” approved February 27, 1883, defendant was elected judge of the circuit court in that circuit at an election held on the first Monday in June, 1883; that he qualified and has continued to act as circuit judge ever since; that at the regular election held on the first Monday in September, 1886, the relator, being competent to hold that office, was duly elected thereto, and that he has qualified as required by law; but that Askew unlawfully holds over, though his time has expired.
Defendant, in his answer, says that he qualified as judge on the 26th day of June, 1883; that his term of office is for four years, and that his successor can only be elected at the general election in 1888. He also demurred to the petition, but no ground of demurrer is stated. Petitioner has demurred to the answer.
1. Office: Title to.
It is not averred in the petition that a commission has been issued to the relator. On the contrary, it was stated in the argument that the governor, acting upon the advice of the attorney-general, had refused to commission him. But of course it is the legal election behind a commission which gives the right of succession, and not the commission itself. State v. Johnson, 17 Ark., 407. The relator’s right to the office depends, then, on the answer to be given to these questions:
First — Has the term for which Judge Askew was elected in 1883 expired ? and,
Second — Has the relator been duly elected to succeed him ?
The Thirteenth circuit was carved out of the territory which, before that time, had belonged to the Ninth circuit. And the act creating the new circuit contained these provisions:
■ “ Sec. 3. That an election shall be held on the first (1st) Tuesday after the first (1st) Monday in June, A. D., eighteen hundred and eighty-three (1883), in the several counties in the Thirteenth (13th) judicial circuit, in the mode and manner now prescribed by law for holding elections for similar officers, for the office of circuit judge and prosecuting attorney for the said circuit; and the terms of office of said officers shall expire at the same time that the terms of office of other circuit judges and prosecuting attorneys expire, and shall be filled at the first general election which shall be held after the expiration of their term.”
This section is manifestly self-contradictory and repugnant; for, interpreted literally, it would make Askew’s term end on or about the thirtieth day of October, 1886; whereas his successor would not be chosen until the general election to be held in September,'1888.
2. Same: Power of legislature to enlarge term of.
It is argued that, as sec. 5 of article 19 of the Constitution directs all officers to continue in office after the expiration of their official terms until their successors are elected and qualified, therefore it was the intention of the legislature that the judge to be chosen at the special election which was ordered should hold over until the autumn of 1888. But the same instrument ordains that “ the judges of the circuit courts shall be elected by the qualified electors of the several circuits, and shall hold their offices for the term of four years.” Art. 7, sec. 17. And it is no more in the power of the legislature to enlarge the constitutional term of an office than it is in their power to abridge it. Any attempt in either direction would be a plain usurpation. People, ex rel., v. Bull, 46 N. Y., 57; S. C., 7 Amer. Rep., 302; Commonwealth v. Gamble, 62 Penn., State, 343; State, ex rel., v. Thoman, 10 Kansas, 191; Meredith, ex parte, 33 Gratt, 119; S. C., 36 Amer. Rep., 771; State v. Lileis, 1 McCord, 239; State v. Hutson, ib., 240; State v. McClintock, ib., 245; Keys v. Mason, 3 Sneed, 6; Lowe v. Commonwealth, 3 Metc. (Ky.), 237; State v. Wiltz, 11 La. Ann., 439.
There is no reason to suppose, however, that the legislature intended, to extend or to shorten the term of the first judge of the new circuit. Their meaning is reasonably certain, viz.: that his term should expire on or about October 80, 1886, and that his successor should be chosen at the general election immediately preceding that date; the apparent inconsistency being the result of a blunder in writing the word “after” instead of the word “before.” However, we lay no stress upon this legislative declaration, further than as it shows what the general assembly understood that the constitution meant. Eor, the term of office of circuit judge being, as we have seen, fixed by the organic law, and beyond the control of the legislature, no enactment that they might indulge in would cáuse the term to end a day sooner or a day later. All that portion of the third section of the act above quoted, which prescribes the duration of the term, and the time when .the office is to be filled by a second election, may therefore be stricken out as superfluous, these- matters being regulated by the constitution and general laws of the state.
3. Samu: Term of, in new judicial district: Vacancy.
The term of the circuit judges being then four years, net authority can be found in the constitution for an election for a shorter period, except the following clause: “All vacancies occurring in any office provided for in this article [the article relating to the judicial department] shall be filled by special election.” Art. 7, sec. 50.
At the time of 'the adoption of this instrument, it had been settled in the case of the State v. Sorrels, 15 Ark., 664, under provisions of the constitution of 1836, not essentially different from the present constitution, so far as concerns this question, that, upon the happening of a vacancy, the election is for the unexpired portion of the term, and not for a full term of four years. The controversy is thus narrowed to the point, whether upon the creation of an additional circuit, there is a present vacancy in the office of circuit judge. Can a vacancy occur in an office which has never been filled? Vacancy is the state of being empty or unfilled. Vacant lands are unoccupied lands. A vacant house is an untenanted house. A vacant office is an office without an incumbent; and it can make no difference whether the office be a new or an old one. An old office is vacated by death, resignation or removal. An office newly created becomes ipso facto vacant in its creation. Stocking v. State, 7 Ind., 326; Collins v. State, 8 ib., 344; Walsh v. Commonwealth, 89 Penn. St., 419 ; S. C., 33 Amer. Rep. 771; Gormley v. Taylor, 44 Ga., 76; State v. County Court of Boone Co., 50 Mo., 317; People v. Asborne, 7 Col., 605; S. C. 4, Pac. Rep., 1078; Clarke v. Irwin, 5 Nevada, 112; State v. Johns, 3 Oregon, 537.
In support of the opposite theory — that when a new judicial district is erected, the first judge of which is to be elected by the people, there is no vacancy prior to such election — defendant’s counsel has cited no case and we have been able to find only one. State ex rel., v. Messmore, 14 Wis. 163.
The case of Smith v. Halfeare, 6 Howard, 582, accords with the view we have taken, as will appear by reference to the statement of facts, and the conclusion reached, which are here given in the language of Chief Justice Sharkey, who delivered the opinion of the court: “The Eighth district was formed by act of the legislature iu 1836, and the act provided that an election for judge and district attorney should be held on the first Monday and day following in July of that year; at which election Frederick W. Huling was elected judge. At the general election in November, 1837, he was re-elected; he, however, still claimed to hold under the election of 1836, but ultimately qualified under the election of 1837. About the expiration of four years from his first election in July, he requested the governor to issue a writ of election, as his time would expire in July, 1840. The governor, however, differed with him in opinion, and refused to order the election, holding that he was in office under the election of 1837, and that the term would not expire until the regular election in November, 1841, and proposed that if he would resign, he would issue a writ of election to fill the vacancy until 1841. This Huling did, and at November, 1840, was again re-elected to fill the vacancy occasioned by his own resignation. Under this last election he now claims to hold for four years, the constitutional term.
“At the general election in November, 1841, the governor issued his writ of election, and amongst other officers directed that a circuit judge should be elected for the term prescribed in the constitution, and James M. Howry, the other claimant, was elected.
“The conclusion irresistably forces itself on us, that the convention intended that all terms of office should begin and terminate with the regular election, and that this rule should apply as well to officers elected at any subsequent period of time, as to those who were to be elected at the first election; and that consequently Huling was first elected until the general election in 1837; that his regular term then commenced, and ended on the first Monday of November, 1841; and that James M. Howry, being then legally elected, is entitled to hold the office for four years from that time.”
The Mississippi court relies chiefly upon the argument of inconvenience — that if the constitutional term adheres to the person of the individual elected, and is a guaranty that he shall enjoy the honors and emoluments of the office for the full period, then the creation of new circuits, as the administration of justice might from time to time require, and the deaths, resignations and removals of incumbents occurring would, in the course of time, have the effect practically to abrogate the system of regular elections. And this, it must be admitted, is a most weighty consideration. Our constitution provides that general election shall be held biennially. Art. 3, sec. 8.
And the statute enacted in pursuance thereof is as follows: “On the first Monday in September, 1876, and every two years thereafter, there shall be held an election in each preeinct and ward in this state for the election of all elective state, county and township officers whose term of office is fixed by the constitution at two years; and state senators in their respective districts, when the terms for which senators may have been elected shall expire before the next general election; and for judges of the supreme and circuit courts when the term of office shall expire before the next general election; and for prosecuting attorneys.” Mansfield’s Digest, 2652.
Now, if every officer whose term is fixed by the constitution is entitled to hold' for the quantum of time allotted, without regard to the date when, or the circumstances under which, he took office — then it follows that the people must be harassed with frequent special elections, and doubt and uncertainty must prevail at what time their successors are to be chosen, causing wide-spread confusion. Eor it is not alone judicial officers whose terms are assured by constitutional sanction, but also county and township officers, such, as circuit clerks, judges of the county court, sheriffs, assessors, coroners, county treasurers, justices of the peace and constables. {Art. 7, secs. 19, 89, 38, 1¡,6, Ifl) So that it would happen upon the erection of every new judicial circuit, and upon the creation of every new county, which must be organized and equipped with officers chosen at a special election, the persons so selected, and their successors for all time, or as long as this constitution lasts, will not go out of office at the same time as other officers of their class, but will hold for the length of time mentioned in the constitution, computing from the date of their commissions or qualifications, which has not been the practical construction of the constitution by the several departments of the state government and by the people themselves. For example: By act of March 8, 1877, the Twelfth judicial circuit was created. At the election held in April of the same year, the Hon. John H. Rogers was elected circuit judge, and John S. Little was elected prosecuting attorney. According to the theory of the defendant, Rogers was in for four years and Little for two years, from the dates of their respective commissions. And the cycles of their su'ccessors would run from the same point of time. But it is a part of the judicial history of the state that these officers were re-elected at the general election in 1878, received new commissions and qualified anew at the regular time in the fall of 1878, and that their terms of office, and those of their successors, were thereafter considered to begin and end at the same time as those of the other circuit judges and prosecuting attorneys.
It is no answer to say that they by their conduct waived their legal rights, or estopped themselves to claim a full term upon their first election. For, if the position con tended for be sound, the term is unalterable — a fixed quantity, and nothing that the incumbents might do could have any effect on its duration. They might resign, and the vacancy would be filled by the election or appointment of their successors, who would hold for the remainder of the term.
Again: By act of December 22, 1874, the county of Miller was established, and at an election held in February, 1875, all officers necessary for the organization of the new county were chosen. Bo, by act of February 20, 1883, the county ot Cleburne was created, and an election of county officers was held in May of the same year. Did the officers elected at those elections hold for two years, or only until after the next general election ? Do their successors now hold, in the one case from February to February, and in the other from May to May of the odd-numbered years ? The usage of the executive department, acquiesced in by the officers and the people immediately concerned, has settled, so far as usage can settle such a question, that the terms of these officers expired, and the terms of thfeir successors began and terminated at the same time as those ot similar officers of the old counties. And such usage is justified by reason, good sense and the authority of adjudged cases. It promotes convenience and secures uniformity.
"We have spoken of the office of judge of the Thirteenth circuit as a new office. This is true in one sense, and not true in another. For the constitutional convention created the office of circuit judge. The legislature only created the judicial district. But, by the exercise of the power lodged in the legislature, the office of judge of this particular circuit was evolved and put into active operation. And the vacancy in the office flowed as a natural eonse quence from the' act of creating, giving shape to, and moulding the circuit. State v. Floyd, 9 Ark., 313.
It must not be supposed that the convention fixed the tenure of judges, out of any particular regard for the sanctity of the judicial office, above that of any other constitutional office. With us offices exist for the public convenience, and not for the special benefit of the incumbents. The purpose was to secure not merely a fixed term of office to the judges, but also to afford to the people an opportunity at stated intervals to change them;
The defendant’s demurrer to the petition is overruled, and his answer is adjudged to be not sufficient in law.
Rote. — The defendant having declined to plead further, judgment of ouster was given. | [
48,
-26,
-35,
44,
-86,
96,
-106,
-108,
122,
-109,
101,
82,
-23,
-53,
84,
57,
-53,
123,
85,
107,
-44,
-73,
22,
73,
-77,
-13,
-117,
-33,
-74,
-20,
-12,
-35,
72,
40,
74,
-43,
-58,
-28,
-59,
92,
-58,
-121,
-21,
108,
-38,
65,
58,
126,
18,
-97,
117,
126,
-14,
110,
21,
-57,
-23,
104,
123,
-80,
-111,
-112,
-34,
-123,
108,
5,
-79,
39,
-101,
-125,
120,
14,
-104,
29,
-58,
-4,
115,
-90,
-126,
-25,
79,
-87,
8,
98,
99,
25,
105,
-49,
-88,
-119,
30,
42,
-67,
-90,
-110,
88,
107,
12,
-74,
-105,
125,
16,
-57,
126,
-26,
69,
-44,
110,
4,
-50,
-42,
-43,
-121,
126,
-120,
2,
-29,
-61,
49,
113,
-36,
-18,
87,
71,
50,
25,
-113,
-80
] |
Cockrill, C. J.
¥e cannot regard the evidence adduced to establish a resulting trust in the lands in dispute as suf ficient for that purpose. In order that parol evidence may have the effect of converting an 'absolute deed into a trust for the benefit of a stranger, it must be of such clearness and certainty of purpose as to leave no well founded doubt upon the subject. Robinson v. Robinson, 45 Ark., 481; Crittenden v. Woodruff, 11 ib., 82; Perry on Trusts, secs. 137-9.
There is but little positive testimony to the point in the record of this case. The appellant relies upon inferences drawn from the declarations and conduct of his two grandfathers, one of whom was the grantor in the deed which he claims should inure to his benefit, and the other was the administrator of his father’s estate when the deed was executed. The testimony goes back to periods eighteen years and more before the suit was instituted.
The deed was executed to the appellant’s mother by her deceased husband’s father, in 1860, and the claim now is, that the consideration paid for the conveyance emanated from the estate of her deceased husband, whose only heir is the appellant.
The facts are that the lands belonged to J. B. Crow, the appellant’s grandfather. His son, Travis Crow, the appellant’s father, resided upon them with his family by permission of the elder Crow. Travis Crow’s chief estate consisted of one slave — an evidence of his father’s bounty. In 1861 he enlisted in the army, leaving his wife in charge of the land and slave. The war was flagrant and the slave became disobedient. The husband’s family and his wife’s father thought it best to sell him. The wife agreed to it, and with her sanction, J. B. Crow and her father sold him for $1800, and J. B. Crow received the payment in Confederate money, the only currency then in circulation. Travis Crow was afterwards wounded in battle and died without returning home. When the war closed his widow’s father, Barnett, administered upon his estate. It appears that he and J. B. Crow had some negotiations about a settlement of the amount received upon the sale of the negro, and in 1866 Crow paid Barnett $500 in United States currency, which he accounted for to the probate court as collected for Travis Crow’s estate, on account of the sale of the slave. The theory of the appellant is, that it was agreed between Crow and the administrator that the latter should receive the land in question in payment of the balance due on the slave transaction, but that the deed was executed to the widow. No attempt is made to explain why the deed was so executed.
1. Trust: How es-ta b lished by parol evidence.
The widow remarried, inherited lands from her father, and in her lifetime made an equitable division of all she had, between her son, the appellant, and her husband, the appellee, executing deeds to each. The land in suit fell to the husband’s lot. It had continued the home of the family, and the mother died there in 1883. Soon afterwards this suit was brought by her son against his stepfather, to have the deed executed in 1866 declared a conveyance made as in trust for his benefit.
J. B. Crow and Barnett were both dead when the suit was brought, and there was no witness offered to the settlement between them, or to the negotiation for the purchase of the land.
It may be conceded that if the fact were established, that the administrator settled a subsisting claim due to the estate by taking lands 'in payment, and causing the conveyance to be made to his daughter, that a trust would attach to the lands in favor of the heir, which equity would enforce against her or the appellee, who is a mere volunteer. Atkinson v. Ward, 47 Ark., 533; Hill, Fontaine Co. v. Coolidge, 33 Ark., 621.
2. Declarations o f vendor after parting with the title, not a dmissible
But the only evidence tending to show that the lands were conveyed by Crow in satisfaction of a claim due to Travis Crow’s estate, was the understanding or general impression to that effect of some of the Crow family. They had heard the two old men discuss the question many times. The precise nature of the declarations made by them about the matter, or when made is not certain from the evidence. But even a positive declaration about the title to the land, the consideration paid for it, or the purpose of the conveyance made by the grantor after he had parted with the title, could not be heard to control the terms of his deed. Richardson v. Taylor, 45 Ark., 472; Robinson v. Robinson, ib., supra.
While Barnett’s subsequent admissions, though not a part of the res gestae, would be competent in a suit to charge him as administrator, it is difficult to see how they could affect the title to lands in which he never had an interest.
An admission by Mrs. Crow, made in the presence of the plaintiff and defendant, to the effect that the only consideration paid for the lands came from her husband’s estate, was testified to by the plaintiff, and was competent evidence to prove the issue; but the defendant, with equal positiveness, denied that the admission was made, and their oaths neutralized each other.
It is indeed doubtful, from all the testimony, whether J. B. Crow can be regarded in any other light than the mere custodian of the Confederate money received for the slave. He did not sell the negro as his own, and it is not proved that he converted the proceeds of the sale to his own use. He acted in the matter for his son, with the sanction of his son’s wife, when the emergency of war had thrown upon her, in her husband’s absence, the necessity of action to guard his interest and her own safety. The emergency warranted the action she took, and J. B. Crow, in aiding her under the circumstances, was not legally bound to make good the Confederate money which the issue of the war had rendered valueless. In making the subsequent settlement with the administrator there is nothing to show that he acted from a sense of legal obligation. The parties in interest were his son’s widow and two children. The money paid to the administrator was received by the children, and Crow’s whole actiori may be referred to his desire, or his moral obligation, to provide a home for the' widow, and some means of support for his fatherless grandchildren. To say the least of it, the preponderance of the testimony is not in favor of the trust the appellant seeks to establish, and the decree is affirmed. | [
112,
111,
-12,
63,
10,
96,
42,
42,
-64,
43,
103,
83,
105,
74,
0,
43,
-26,
13,
69,
104,
-58,
-109,
23,
1,
-14,
-14,
-7,
-35,
53,
-51,
102,
86,
76,
48,
-54,
93,
98,
106,
-63,
-40,
-50,
-115,
-85,
97,
-38,
-112,
52,
103,
22,
75,
117,
-74,
-13,
42,
29,
-61,
104,
46,
75,
-71,
84,
120,
-82,
4,
-35,
15,
17,
98,
-80,
1,
-54,
42,
-104,
53,
8,
-88,
123,
52,
6,
84,
69,
-103,
13,
-10,
103,
17,
-52,
-3,
48,
-120,
47,
-74,
-127,
-90,
70,
72,
67,
105,
-73,
-99,
124,
80,
6,
-16,
-30,
13,
28,
108,
37,
-49,
-106,
-89,
61,
52,
-98,
7,
-29,
1,
48,
96,
-49,
-30,
93,
71,
117,
-101,
-114,
-78
] |
Battle, J.
The appellant, Henry Thatcher, and H. A. Ballentine, were jointly indicted in the Garland circuit court for keeping a disorderly house. The following is the indictment :
' “ Garland County Circuit Court. — The State of Arkansas, against H. A. Ballentine and Henry Thatcher. — Indictment.
* “The grand jury of Garland county, in the name and by the authority of the state of Arkansas, accuse H. A. Ballentine and Henry Thatcher of the crime of keeping a disorderly house, committed as follows: The said H. A. Ballentine and Henry Thatcher, on the 15th day of March, 1886, in the county and state aforesaid, and on divers other days and times between that day and the day of the presentation of this indictment, a certain, common, ill-governed and disorderly house, unlawfully, did keep and maintain; and, in said house, for their own gain and lucre, certain evil-disposed persons, as well men as women, of evil name, fame and conversation to come together, on the days and times aforesaid there unlawfully and willingly did cause and procure; and the said persons in the said house, at unlawful times, as well in the night as the day, on the days and time3 aforesaid, there to be and remain drinking, tippling, cursing, swearing, quarreling, gambling, whoreing and otherwise misbehaving themselves, unlawfully did permit and suffer, to the great injury and common nuisance of all the peaceable citizens of the state, there residing, inhabiting and passing; to the evil example of all others in the like case offending to the great injury of public morals, the perversion of public justice, and against the peace and dignity of the state of Arkansas.
“ J. P. Henderson, Prosecuting Attorney
The defendants demurred to this indictment, which was overruled.
The evidence introduced in the trial, so far as it is set out in the bill of exceptions, tended to prove that Thatcher occupied a house in the city of Hot Springs, in this state, within the time stated in the indictment, which was kept as a bawdy and common gaming house, and dram shop.
The defendant asked and the court refused to give the following instructions: “To warrant the conviction of any one upon the charge of keeping a disorderly house it is necessary that the disorderly conduct be of a nature and degree sufficient to disturb the peace or quiet of the neighborhood in which it occurred.”
“ Immoral, illegal and lascivious conduct occurring in a house is not sufficient to warrant a conviction of the owner or keeper thereof, upon the charge of keeping a disorderly house, unless such conduct' was so boisterous, open or notorious as to disturb the quiet or peace of the neighborhood.”
The defendant Thatcher was convicted. He moved for anew trial, which was refused; and he filed a bill of exceptions, and appealed.
”Was the indictment sufficient? Such indictments have 9 9 been, expressly, held to be good. It is in accordance with the precedents laid down by Bishop, in his work on Criminal Procedure, and Chitty, in his work on Criminal Law, for the guidance of the practitioner. State v. Patterson, 7 Ired., 70; Com. v. Pray, 13 Pick , 359; Rex v. Higginson, 2 Burrows, 1232; 2 Bishop on Criminal Procedure (2d Ed.), secs 105,273; Wharton on Criminal Law (9th Ed.), sec. 1450.
1. Keeping di sorderly house,
The keeping of a common gaming house, bawdy house, diorderly ale house or inn, or of any other disorderly house, is a common law offense, on account, among other reasons, of its influence upon the public morals. The keeping of a disorderly house may consist in allowing the place to be so noisy and disorderly as to disturb the public peace and annoy the neighborhood. But it is not necessary to show such noise in all cases, because the keeping of such house may consist, in its drawing together idle, vicious, dissolute or disorderly persons engaged in unlawful or immoral practices, thereby endangering the public peace and promoting immorality. Such houses are prohibited, not only on account of noise, but because of their tendency to promote immorality and lead to breaches of the peace. “If the owners of a house,” it is said, “are practically open to the public, alluring the young and unwary into it, to indulge in or witness anything corrupting to their virtue or general good morals, the keeper cannot excuse himself by alleging that the public is not disturbed.” Wharton on Criminal Law (9th Ed.), secs. 1449,1451,1456; 1 Bishop on Crim. Law (6th Ed.), secs. 1110,1111,1107,1113, 1119, 1120; State v. Williams, 30 N.J.L., 104; Cone v. Cobb, 120 Mass., 356; Vanderworke v. State, 13 Ark., 700.
In State v. Williams, supra, Chief Justice Whelpley, in delivering the opinion of the court, said: “No private individual has a right, for his own amusement or gain, to carry on a public business clearly injurious to and destructive of the public quiet, health or morals, and is indictable for so doing because the injury is of a public character, and not merely private, or to a single individual.”
The statutes of this state have re-enacted the common law to some extent, by making it a misdemeanor for any owner or occupant of a house to knowingly permit gaming of any kind in such house. Mansfield's Digest, sec. 1830.
The instructions were properly refused.
Appellant contends that the verdict of the jury was not sustained by sufficient evidence, because the acts of disorderly conduct proven were not shown to have been done in any room controlled or kept by him.
2. Bin of RuTelTff.
The bill of exceptions does not undertake to give all the evidence introduced in the trial, but only the substance of it. It is an attempt to follow Rule XIII of this court. It will be observed in reading this rule that it prescribes the manner in which evidence shall be set out in a bill ot exceptions in two classes of cases: First — In cases where it is necessary to present to this court the rulings of the court below upon some matter of law. Second — To show a defect of proof, where that is the ground of ruling or exception. In the first case the bill of exceptions is only required to contain such statement of facts as may be necessary to explain the bearing of the rulings upon the issue or questions involved; and if the facts are undisputed they are required to be stated as facts, and not the evidence from which they are deduced; and if disputed, it is required to state that evidence was adduced tending to prove them, instead of setting out the evidence in detail. In the second case, the particulars in which the proof is supposed to be defective is required to be briefly stated, and all the evidence offered in any wise connected with the supposed defect, is required to be set out in the bill of exceptions. As the particulars in which the proof is now contended to be defective and all the evidence in any wise connected with it, are not set out in the bill of exceptions, as required by the rules of this court, it will be presumed, in the absence of a contrary showing, that the evidence was sufficient to sustain the verdict.
We find no error in the judgment of the court below, and it is affirmed. | [
-47,
-6,
-120,
95,
-24,
96,
40,
-86,
-30,
-127,
-93,
91,
-23,
81,
72,
99,
107,
107,
116,
123,
-59,
-73,
55,
11,
-30,
-5,
-11,
-107,
-89,
-59,
-27,
-3,
24,
112,
-54,
121,
-124,
-64,
-27,
92,
-122,
1,
-86,
-32,
-45,
-126,
52,
127,
85,
10,
117,
119,
-5,
44,
92,
-46,
77,
44,
-63,
47,
120,
-69,
-104,
31,
91,
23,
-125,
38,
-119,
3,
-22,
60,
-104,
21,
-124,
-68,
115,
-110,
6,
84,
5,
9,
0,
98,
98,
50,
-31,
-93,
32,
9,
55,
-81,
-103,
-89,
-110,
105,
123,
78,
-66,
-123,
36,
16,
15,
-16,
-27,
-59,
17,
104,
-96,
-50,
-74,
-73,
5,
-88,
-44,
51,
-29,
109,
52,
113,
-113,
-50,
84,
68,
114,
-65,
-116,
-13
] |
WAYMOND M. BROWN, Judge
Appellant appeals from the circuit court's order revoking his suspended imposition of sentence on finding him guilty of simultaneous possession of drugs and firearms, possession of cocaine with intent to deliver, and possession of drug paraphernalia. Appellant's counsel has filed a no-merit brief and a motion to withdraw, pursuant to Anders v. California and Arkansas Supreme Court Rule 4-3(k), stating that there are no meritorious grounds to support an appeal. The clerk mailed a certified copy of counsel's motion and brief to appellant, informing him of his right to file pro se points for reversal. Appellant has filed pro se points for reversal. We deny counsel's motion to withdraw and order supplementation of the record and rebriefing.
Case number CR-2009-500 is referenced on two documents in the record. However, beyond the references, no other document currently in the record or addendum refers to, details the progression of, or explains the pertinence of case number CR-2009-500. This court was able to discern that case number CR-2009-500 is appellant's first revocation in case number CR-2005-1107; his terms and conditions advised him of his exposure if he committed a violation thereof. In Jones v. Flowers , our supreme court stated that "the burden of providing a record sufficient to demonstrate error is upon the appellant." While our rules do not specifically fix the contents of a criminal record, Arkansas Supreme Court Rule 3-4(a) clearly contemplates inclusion of any document imposing and/or altering a sentence in a case before this court.
A review of the abstract shows that it is deficient. It leaves out pertinent testimony, such as that of Greg Napier, of the Fort Smith Police Department, that he met with the confidential informant (CI) "prior to the deal"; the "[CI] was searched to make sure that she didn't have any drugs, contraband or money in her possession"; and the money provided was pre-recorded. The abstract also does not include Napier's testimony that after the CI made the transaction, they "did the reverse[,]" i.e., "searched her to make sure she did not have contraband, money[,]" and she did not. This testimony is pertinent to the sufficiency of the evidence in support of appellant's revocation. Information necessary for a proper understanding of the questions presented to the court must be contained within the abstract. Without an adequate brief that contains a sufficient abstract of the record, we cannot make a reasoned decision on whether the appeal is without merit or whether counsel is entitled to be relieved.
The circuit court's November 7, 2005 judgment and commitment order shows that appellant pleaded guilty to five drug-related charges and a charge of felon in possession of firearms in case number CR-2005-1107-B. Following this order, the next documents in appellant's addendum all pertain to case numbers CR-2015-222 and CR-2015-222-A, beginning with a March 10, 2015 criminal information filed against appellant in case number CR-2015-222-A.
There is a whole trail of documents missing from the addendum-which are in the record-between the circuit court's November 7, 2005 judgment and commitment order and appellee's March 10, 2015 criminal information that detail the progression of the matter before the circuit court. The missing documents include multiple plea statements, including appellant's plea statement in case numbers CR-2005-1107 and CR-2015-222; multiple petitions to revoke; a second terms and conditions of suspended sentence signed by appellant in case number CR-2005-1107, which also references case number CR-2009-500; and the original judgment and commitment order in case number CR-2005-1107(b), which also references " 'PTR Revocation' CR-2005-500[.]"
Arkansas Supreme Court Rule 4-2(a)(8)(A) states that the addendum must include "any other pleading or document in the record that is essential for the appellate court to confirm its jurisdiction, to understand the case, and to decide the issues on appeal." At the opening of appellant's revocation hearing in case number CR-2015-222, the circuit court admitted into evidence a certified prior conviction in case number CR-2017-375. The conviction in case number CR-2017-375 forms the basis for the circuit court's revocation of appellant's probation. While that document is in the record, it is not in the addendum. Also missing from the addendum is the Arkansas State Crime Lab's drug-analysis report, which confirmed the field-tested drug to be cocaine and identified its weight and was admitted as an exhibit below. Exhibits before the circuit court are essential documents.
The test for determining whether an appeal is without merit under Rule 4-3(k) is not whether counsel thinks that the circuit court committed no reversible error, but whether an appeal would be "wholly frivolous." In light of the above-referenced deficiencies, we cannot make such a determination.
Accordingly, we remand for supplementation of the record to correct the above-referenced deficiencies within thirty days. Within fifteen days of filing the supplemental record, appellant shall file a substituted abstract, addendum, and brief curing all above-referenced deficiencies in compliance with Arkansas Supreme Court Rule 4-2. We encourage appellant's counsel to review Rule 4-2 of the Rules of the Arkansas Supreme Court and Court of Appeals to ensure that the substituted abstract, brief, and addendum comply with the rules and that no additional deficiencies are present; this list is not exhaustive.
Supplementation of the record and rebriefing ordered; motion to withdraw denied.
Gruber, C.J., and Harrison, J., agree.
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
(2017).
359 Ark. 443, 448, 198 S.W.3d 520, 523 (2004), rev'd on other grounds (citing Raymond v. State , 354 Ark. 157, 118 S.W.3d 567 (2003) ).
Lockhart v. State , 32005 WL 3008675, slip op. at 1 (unpublished) ("While our rules do not specifically fix the contents of a criminal record, Ark. Sup. Ct. R. 3-4(a) clearly contemplates inclusion of the charging document in any criminal record presented to us.").
Atchison v. State , 68 Ark. App. 231, 234-35, 5 S.W.3d 491, 493 (1999) (citing Hill v. State , 337 Ark. 219, 988 S.W.2d 487 (1999) ).
Hobbs v. State , 2013 Ark. App. 423, at 2, 2013 WL 3253733 (citing Anders , supra ; Mitchell v. State , 327 Ark. 285, 938 S.W.2d 814 (1997) ).
See Powell v. State , 2013 Ark. App. 149, at 3, 2013 WL 749772 ; Ark. R. App. P.-Crim. (4)(d).
Hobbs v. State , 2013 Ark. App. 423, at 2, 2013 WL 3253733 (citing Ewells v. State , 2009 Ark. App. 520, 334 S.W.3d 876 ). | [
48,
-22,
-31,
28,
58,
-63,
26,
-80,
80,
-61,
118,
83,
-27,
-10,
4,
123,
-61,
29,
117,
121,
-58,
-77,
102,
-31,
102,
-77,
-104,
-43,
-1,
75,
-84,
-36,
29,
112,
-62,
85,
70,
-62,
99,
92,
-50,
1,
-119,
102,
89,
-63,
32,
35,
18,
15,
49,
-97,
-93,
44,
25,
-62,
105,
108,
75,
-72,
88,
-103,
-102,
79,
-19,
4,
-125,
52,
-104,
5,
-40,
59,
-100,
57,
1,
120,
115,
-106,
-126,
116,
75,
-103,
12,
96,
98,
1,
17,
-49,
-68,
-116,
31,
62,
-99,
-26,
-40,
57,
75,
105,
-106,
-107,
110,
30,
13,
126,
106,
12,
17,
108,
0,
-50,
-76,
-79,
-114,
124,
4,
-117,
-21,
1,
20,
117,
-57,
-30,
93,
87,
49,
-101,
-50,
-106
] |
KAREN R. BAKER, Associate Justice
This appeal stems from a decision from the Full Commission of the Arkansas Workers' Compensation Commission. On May 12, 2002, appellee, Oscar Gerard, suffered a compensable injury. The appellant, Arkansas Game and Fish Commission ("AG&F"), accepted the injury as compensable and paid workers'-compensation benefits and expenses as a result of his injury. Between 1999 and 2013, Gerard had three surgeries for his work-related injuries while employed by AG&F.
On February 19, 2014, Gerard's treating back surgeon declared that Gerard had attained maximum medical improvement with 16 percent impairment. Thereafter, AG&F accepted liability for the 16 percent impairment rating and a 10 percent wage loss. Subsequently, two other doctors independently evaluated Gerard, and both opined that Gerard's impairment rating was 23 percent to the body as a whole. AG&F accepted the 23 percent impairment rating.
In 2015, Gerard sought additional temporary total-disability benefits, alleging that he was entitled to either permanent and total disability benefits or alternatively wage-loss disability benefits as a result of his work-related injury. Gerard further alleged that he was entitled to permanent partial-disability benefits in excess of 10 percent due to the 7 percent increase in his impairment rating; he was entitled to additional temporary total disability benefits. Further, Gerard asserts that AG&F should not be entitled to any offset pursuant to Ark. Code Ann. § 11-9-411 (Repl. 2012).
On December 22, 2015, an administrative law judge ("ALJ") held a hearing. On February 23, 2016, the ALJ issued an opinion finding, among other things, that Gerard established that he is entitled to a 35 percent wage-loss disability award and that AG&F was allowed to take credit for the previous 10 percent wage loss paid. The ALJ further found that AG&F was entitled to the offset provided for in Ark. Code Ann. § 11-9-411 because "it appears to this examiner that Mr. Gerard's Arkansas Public Employment Retirement System ("APERS") retirement benefits rate of $2,424.67 to $2,479.79 per month would far exceed his workers' compensation benefit rates of $277.00 or $369.00 per week." The ALJ also found that Gerard's attorney was entitled to a 25 percent fee on the indemnity benefits awarded to Gerard, "one-half of which is to be paid by the claimant and one-half to be paid by the respondents in accordance with Ark. Code Ann. § 11-9-715 [.]" AG&F tendered its half of the attorneys' fees. The parties did not appeal this order.
On April 18, 2016, Gerard filed a motion to enforce payment of the attorneys' fees.
Gerard asserted that his disability retirement compensation exceeded the award of additional benefits, and the offset depleted the "payable benefits" from which the attorneys' fees should be paid. Gerard argued that he effectively never received any compensation, and because Ark. Code Ann. § 11-9-715(a)(2)(B)(i) requires that Gerard's payment of attorneys' fees must come from any benefits he was awarded, AG&F must pay the remaining half of the fees. AG&F responded that it had paid one-half of the attorneys' fees to the proper entities, and pursuant to Ark. Code Ann. § 11-9-715(a)(2)(B)(i), Gerard was responsible for his half of the attorneys' fees out of his own pocket, if necessary.
The ALJ found that the "deduction of the claimant's one-half of the controverted attorneys' fees out of compensation payable to the claimant under Arkansas Code Annotated section 11-9-715(a)(2)(B)(i) precedes any reduction in benefits provided for under Arkansas Code Annotated section 11-9-411(a)(1)" and ordered AG&F to pay Gerard's one-half of the fees to Gerard's attorney out of the benefits awarded to the claimant. AG&F appealed to the Full Commission, and the Commission affirmed and adopted the ALJ's decision. AG&F appealed to the court of appeals, which reversed the Full Commission's decision. Arkansas Game & Fish Comm'n v. Gerard , 2017 Ark. App. 523, at 1-4, 530 S.W.3d 887, 888-89. On December 14, 2017, we granted Gerard's petition for review. When this court grants a petition for review, it considers the appeal as though the case originally had been filed in this court. Jones Bros., Inc. v. Whitlock , 366 Ark. 254, 257, 234 S.W.3d 864, 867 (2006).
On appeal, AG&F presents two points: (1) whether the Full Commission erred in its interpretation of Ark. Code Ann. § 11-9-715 by requiring AG&F to pay Gerard's one-half portion of the attorney's fees due from the benefits awarded; and (2) whether the Full Commission erred when it found that the General Assembly intended the attorney's fees awarded pursuant to Ark. Code Ann. § 11-9-715 to have priority over the offset provided for in Ark. Code Ann. § 11-9-411.
Standard of Review
"In appeals involving claims for workers' compensation, our court views the evidence in a light most favorable to the Commission's decision and affirms the decision if it is supported by substantial evidence. Hapney v. Rheem Manufacturing Co. , 341 Ark. 548, 26 S.W.3d 771 (2000) ; Burlington Indus. v. Pickett , 336 Ark. 515, 988 S.W.2d 3 (1999). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Williams v. Prostaff Temps. , 336 Ark. 510, 988 S.W.2d 1 (1999). The issue is not whether the appellate court might have reached a different result from the Commission; if reasonable minds could reach the result found by the Commission, the appellate court must affirm the decision. Minnesota Mining & Mfg. v. Baker , 337 Ark. 94, 989 S.W.2d 151 (1999)." Wallace v. W. Fraser S., Inc. , 365 Ark. 68, 69-70, 225 S.W.3d 361, 363-64 (2006).
Further, in reviewing §§ 11-9-715 and 11-9-411, "we construe the statutes so that no word is left void, superfluous, or insignificant, and we give meaning and effect to every word in the statute, if possible. McMickle v. Griffin , 369 Ark. 318, 254 S.W.3d 729 (2007). 'When interpreting statutes, our review is de novo, as it is for this court to decide what a constitutional and statutory provision mean.' Ark. Hotels and Ent't, Inc. v. Martin , 2012 Ark. 335, 423 S.W.3d 49. 'In considering the meaning of a statute, we consider it just as it reads, giving the words their ordinary and usually accepted meaning.'
Nelson v. Timberline Int'l, Inc. , 332 Ark. 165, 176, 964 S.W.2d 357, 362 (1998). Additionally, in construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. Lawhon Farm Servs. v. Brown , 335 Ark. 272, 984 S.W.2d 1 (1998). Statutes relating to the same subject must be construed together and in harmony, if possible. Jester v. State , 367 Ark. 249, 239 S.W.3d 484 (2006)." Ortho-McNeil-Janssen Pharm., Inc. v. State , 2014 Ark. 124, at 10-11, 432 S.W.3d 563, 571. "However, when we construe the workers' compensation statutes we must strictly construe them. Ark. Code Ann. § 11-9-704(c)(3) (Repl. 2012). 'The doctrine of strict construction requires this court to use the plain meaning of the language employed.' Stewart v. Ark. Glass Container , 2010 Ark. 198, at 6, 366 S.W.3d 358, 361-62." Miller v. Enders , 2013 Ark. 23, 5-6, 425 S.W.3d 723, 726-27.
Points on Appeal
With these standards in mind, we now turn to the points on appeal. Both of AG&F's points on appeal require us to interpret the statute at issue. First, Ark. Code Ann. § 11-9-101 provides, in pertinent part:
The primary purposes of the workers' compensation laws are to pay timely temporary and permanent disability benefits to all legitimately injured workers who suffer an injury or disease arising out of and in the course of their employment ... and to emphasize that the workers' compensation system in this state must be returned to a state of economic viability.
Second, Ark. Code Ann. § 11-9-715, Title 11. Labor and Industrial Relations, Chapter; Workers' Compensation, Subchapter 7-Proceedings Before Workers' Compensation Commission, section 715 "Fees for Legal Services" which provides in pertinent part:
(B)(i) [W]henever the commission finds that a claim has been controverted, in whole or in part, the commission shall direct that fees for legal services be paid to the attorney for the claimant as follows: One-half (½) by the employer or carrier in addition to compensation awarded; and one-half (½) by the injured employee or dependents of a deceased employee out of compensation payable to them.
Section 11-9-715 was first codified in 1959, and if attorney's fees were awarded, the fees were to be paid by the employer. In 1986, the law changed to require the employer to pay ½ of the attorney's fees in addition to the award and the other ½ of the attorney's fees to be paid by the injured employee out of compensation payable to the injured employee. That language at issue here-one-half (½) to be paid by the employer or carrier in addition to compensation awarded; and one-half (½) to be paid by the injured employee out of the compensation payable to them-has remained substantively the same since then.
Third, "compensation," as referenced in section 11-9-715 is defined in Ark. Code Ann. § 11-9-102 (5) as: " 'Compensation' means the money allowance payable to the employee or to his or her dependents."
Finally, section 11-9-411(a)(1)"Effect of payment by other insurers," addresses the offset of benefits payable to a claimant-including retirement benefits-and provides in pertinent part:
(a)(1) Any benefits payable to an injured worker under this chapter shall be reduced in an amount equal to, dollar-for-dollar, the amount of benefits the injured worker has previously received for the same medical services or period of disability, whether those benefits were paid under a group health care service plan of whatever form or nature, a group disability policy, a group loss of income policy, a group accident, health, or accident and health policy, a self-insured employee health or welfare benefit plan, or a group hospital or medical service contract.
Section 11-9-411 was first codified in 1993. We have held that the overriding purpose of section 11-9-411 is to prevent a double recovery by a claimant for the same period of disability. See Second Injury Fund v. Osborn , 2011 Ark. 232, at 5, 2011 WL 2062277.
We now turn to our analysis of the issue before us. AG&F asserts that the Commission erred in its interpretation of section 11-9-715(a)(2)(B)(i) -contending that the plain language requires one-half of the fee be paid by AG&F and the other one-half by Gerard. Simply put, AG&F contends that despite the source of the funds, one-half of the attorney's fees are Gerard's responsibility, not AG&F's. AG&F further contends that the Commission erred in finding that Ark. Code Ann. § 11-9-715 takes priority over any reduction pursuant to Ark. Code Ann. § 11-9-411. We address these two arguments together as they necessarily go hand in hand. We disagree with AG&F and affirm the Commission.
Applying our rules of statutory construction, the plain language of Ark. Code Ann. § 11-9-715 provides that the attorney's fees awarded will be paid one-half (½) by the employer or carrier in addition to compensation awarded; and one-half (½) by the injured employee or dependents of a deceased employee out of compensation payable to them. " 'Compensation' means the money allowance payable to the employee or to his or her dependents." Ark. Code Ann. § 11-9-102 (5). Here, the amount of the attorney's fees was calculated based on Gerard's additional award of benefits-specifically, the 7 percent increase in impairment rating and 25 percent wage loss that AG&F challenged. The amount of the attorney's fees amount is undisputed-$7,790.62. Gerard's one-half is to be paid from the amount payable to him from AF & G for his compensable injury. In other words, based on the plain language of the statute, Gerard's one-half of the fee is to be derived from the sum he is paid by AG&F for his injury. Here, AG&F must provide Gerard's one-half of the fee from the compensable amount awarded because the plain language provides that Gerard's fee is to come from the compensation to him for his work-related injury. In other words, one-half of Gerard's fee to his attorney is to come from AG&F, the party that caused the litigation.
Next, with regard to which statute takes precedence, to apply the offset statute over the attorney's-fees statute would defeat the purpose of the attorney's-fees statute and the purpose of the worker's compensation code. Additionally, to read the statute as AF & G asserts would ignore the statutory language-and read the statute to say the attorney's fees awarded will be paid one-half (½) by the injured employee and ignore the entire clause which states: the attorney's fees awarded will be paid one-half (½) by the injured employee or dependents of a deceased employee out of compensation payable to them. The statute should be construed so that no word is left void, superfluous, or insignificant; and meaning and effect must be given to every word in the statute if possible. See Ortho-McNeil-Janssen Pharm., Inc. supra.
Accordingly, the plain language dictates that the parties here each pay one-half of the fee. For Gerard, that one-half is derived from the compensation payable to him because of his compensable injury. To hold otherwise punishes Gerard, an injured employee involved in a controverted claim. This amount comes from the payable amount owed to Gerard prior to any offset. This interpretation is supported by our case law regarding Ark. Code Ann. § 11-9-715. In Cleek v. Great Southern Metals , 335 Ark. 342, 345, 981 S.W.2d 529, 530-31 (1998), we explained:
[t]his court has long recognized that making an employer liable for attorney's fees serves legitimate social purposes such as discouraging oppressive delay in recognition of liability, deterring arbitrary or capricious denial of claims, and insuring the ability of necessitous claimants to obtain adequate and competent legal representation. Aluminum Co. of America v. Henning , 260 Ark. 699, 543 S.W.2d 480 (1976). In the instant case, ... Great Southern ... never recognized liability for her injury, and if Cheek had not prevailed on the liability issue of her claim, she would have been barred from seeking any future medical expenses or disability benefits. Great Southern's undisputed controversion of Cheek's injury claim forced Cheek to try this case fully on the merits. If Cheek had not employed counsel to assist her in this matter, it is reasonable to conclude both her present and future claims for medical expenses and benefits would not have been properly presented and protected. 260 Ark. at 706-708, 543 S.W.2d at 485. If the fundamental purposes of attorney's fees statutes such as § 11-9-715 are to be achieved, it must be considered that their real object is to place the burden of litigation expenses upon the party which made it necessary. Id.
The court of appeals has applied this same reasoning in numerous cases:
Making an employer liable for attorney's fees serves legitimate social purposes such as discouraging oppressive delay in recognition of liability, deterring arbitrary or capricious denial of claims, and insuring the ability of necessitous claimants to obtain adequate and competent legal representation. Aluminum Co. of America v. Henning , 260 Ark. 699, 543 S.W.2d 480 (1976). Put another way, the fundamental purposes of attorney's fees statutes such as Ark. Code Ann. § 11-9-715 is to place the burden of litigation expenses upon the party that made it necessary. Cleek v. Great Southern Metals , 335 Ark. 342, 981 S.W.2d 529 (1998).
Osborne v. Bekaert Corp. , 97 Ark. App. 147, 154-55, 245 S.W.3d 185, 192 (2006).
Simply put, the purpose of the Workers' Compensation Act is to take care of the injured employee and pay the compensation. We reject AG&F's assertion that the offset statute takes precedence over the attorney's fees. This interpretation defeats the purpose of the workers' compensation statute and ignores the plain language of the statute. Accordingly, we affirm the decision of the Arkansas Workers' Compensation Commission.
Affirmed; Court of Appeals' opinion vacated.
Kemp, C.J., and Wood and Womack, JJ., dissent. | [
82,
-21,
-35,
-4,
24,
-63,
58,
-118,
83,
-53,
-89,
81,
-25,
15,
29,
43,
-31,
109,
-64,
97,
-42,
-77,
81,
-64,
-118,
-13,
-69,
-57,
57,
111,
-28,
-107,
95,
48,
-58,
-107,
-26,
-48,
-51,
28,
74,
2,
-85,
-3,
125,
69,
56,
46,
-112,
15,
49,
-74,
107,
46,
24,
75,
108,
4,
89,
43,
-47,
-32,
-62,
13,
107,
20,
-96,
4,
-98,
78,
80,
14,
-104,
57,
64,
-56,
114,
-74,
-62,
53,
107,
-103,
4,
98,
103,
-80,
17,
-59,
32,
-88,
28,
-34,
31,
-92,
-101,
25,
90,
11,
-106,
-68,
90,
12,
28,
-4,
-16,
-51,
28,
44,
-125,
-98,
-108,
-79,
-17,
97,
-36,
-125,
-17,
-115,
-112,
101,
-56,
-30,
93,
7,
123,
-109,
-14,
-13
] |
COURTNEY HUDSON GOODSON, Associate Justice
Appellant DeSoto Gathering Company, LLC ("DeSoto") appeals from the Faulkner County Circuit Court's order granting the motion to dismiss filed by appellees Angela Hill, in her official capacity as Faulkner County Assessor; the Faulkner County Board of Equalization, Faulkner County, Arkansas; the Faulkner County Treasurer; and the Faulkner County Tax Collector (collectively, "Hill"). For reversal, DeSoto argues (1) that the circuit court erred in dismissing DeSoto's refund claim pursuant to Arkansas Rule of Civil Procedure 12(b)(8) (2017) and (2) that the circuit court also erred by finding that DeSoto's claim for a refund was barred by the doctrine of res judicata. We reverse and remand.
DeSoto owns gas compressors, gas-gathering systems, and related equipment that are subject to ad valorem property tax in Faulkner County, Arkansas. In 2012, after receiving the Faulkner County Assessor's valuation of its personal property, DeSoto challenged the assessments before the Faulkner County Board of Equalization. The board affirmed the assessments, and DeSoto appealed to the Faulkner County Court. After the county court upheld the assessments, DeSoto then appealed to the Faulkner County Circuit Court in January 2013. In this "valuation appeal," DeSoto alleged that the assessor's method of estimating the fair market value of its property was defective in several respects.
On November 5, 2015, Hill filed a motion to dismiss DeSoto's valuation appeal, arguing that DeSoto had committed the unauthorized practice of law because a nonattorney had signed the petition for appeal. Hill asserted that the petition was therefore null and void and that DeSoto had failed to perfect a valid appeal to the county court. Furthermore, Hill contended that because the county court never had jurisdiction of the ad valorem appeal, the circuit court did not acquire jurisdiction to hear the appeal. On August 16, 2016, the circuit court dismissed the valuation appeal for lack of subject-matter jurisdiction.
During the discovery process in the valuation appeal, DeSoto learned that its Cove Creek property was actually located in Conway County, even though the property had been included in the 2012 ad valorem assessment in Faulkner County. In addition, DeSoto discovered a list of intangible property that it claimed had been erroneously assessed by Hill. DeSoto met with Hill in September 2013 to discuss these errors. Hill agreed to correct the erroneous assessments for the 2013 and 2014 tax years but refused to remove them from the 2012 assessment. DeSoto then paid its 2012 taxes in October 2013 pursuant to an agreed escrow order in the valuation appeal.
On December 1, 2015, DeSoto filed a claim in the Faulkner County Court for a refund of its 2012 ad valorem taxes under Arkansas Code Annotated section 26-35-901 (Repl. 2012). The refund claim was based on the erroneous assessment of DeSoto's Cove Creek personal property that was located in Conway County and on the taxation of its exempt intangible property. Hill filed a motion to dismiss the claim due to the pendency of the 2012 valuation appeal in the Faulkner County Circuit Court. Hill argued that the county court had no choice but to dismiss the refund action under Arkansas Rule of Civil Procedure 12(b)(8) because the earlier case involved the same parties and arose out of the same occurrence. The county court agreed and dismissed the refund action on May 31, 2016.
Desoto appealed to the circuit court, and on August 24, 2016, Hill again filed a motion to dismiss. She continued to assert that the refund action should be dismissed under Rule 12(b)(8) due to the 2012 valuation case. Although that case had recently been dismissed on August 16, 2016, for lack of subject-matter jurisdiction, Hill argued that the dismissal could still be appealed by DeSoto. In addition, Hill contended that the refund claim was barred by the doctrine of res judicata because it could have been brought in the valuation case.
A hearing on the motion to dismiss was held on February 13, 2017. On March 2, 2017, the circuit court entered an order granting Hill's motion and dismissing DeSoto's refund action. The court stated that both the refund action and the 2012 valuation appeal stemmed from the same transaction or occurrence, which was the 2012 ad valorem tax assessment. Thus, the circuit court found that the refund claims were precluded by res judicata because they could have been raised in the previously filed and dismissed valuation case. Further, the court ruled that it was required to dismiss the refund matter pursuant to Rule 12(b)(8) because the valuation case was still pending on appeal before this court. DeSoto filed a timely notice of appeal from the circuit court's order of dismissal.
On appeal, DeSoto first argues that the circuit court erred by dismissing its refund claim under Arkansas Rule of Civil Procedure 12(b)(8). We generally review a circuit court's decision on a motion to dismiss under an abuse-of-discretion standard. Ballard Group, Inc. v. BP Lubricants USA, Inc. , 2014 Ark. 276, 436 S.W.3d 445 ; Jonesboro Healthcare Ctr., LLC v. Eaton-Moery Envtl. Servs., Inc. , 2011 Ark. 501, 385 S.W.3d 797. However, the construction of a court rule is a question of law, which we review de novo. Jonesboro, supra.
Pursuant to Rule 12(b)(8), the "pendency of another action between the same parties arising out of the same transaction or occurrence" can be raised as a defense to a complaint filed by a plaintiff. The Reporter's Note to Rule 12 indicates that this provision is based on an earlier statute, Arkansas Statutes Annotated section 27-1115(3) (Repl. 1962), which listed as one of the grounds for a demurrer, "[t]hat there is another action pending between the same parties for the same cause[.]" We have consistently interpreted that statute, as well as Rule 12(b)(8), as applying only to prohibit identical actions from proceeding between identical parties in two different courts of this state. Potter v. City of Tontitown , 371 Ark. 200, 264 S.W.3d 473 (2007) ; Patterson v. Isom , 338 Ark. 234, 992 S.W.2d 792 (1999) ; Nat'l Bank of Commerce v. Dow Chem. Co. , 327 Ark. 504, 938 S.W.2d 847 (1997) ; Tortorich v. Tortorich , 324 Ark. 128, 919 S.W.2d 213 (1996). We have indicated that the matter is one of venue; thus, Rule 12(b)(8) is not implicated when one of the actions is in a different jurisdiction, such as federal court. Potter , supra ; Dow Chem., supra. In Mark Twain Life Insurance Corp. v. Cory , we stated that the rule is intended to discourage a multiplicity of suits and to protect the defendant from "double vexation from the same cause." 283 Ark. 55, 59, 670 S.W.2d 809, 812 (1984). We have also noted that under our common law, when the same action is pending in different courts with concurrent jurisdiction, the first court to exercise jurisdiction rightfully acquires control. Patterson , supra ; Tortorich, supra. This prevents two different judgments with respect to the same issues, which would lead to confusion and "calamitous results." Patterson , 338 Ark. at 240, 992 S.W.2d at 796.
DeSoto contends that Rule 12(b)(8) did not apply to bar its refund action because its claim for a refund was a separate and distinct claim from that raised in its valuation case. According to DeSoto, the first action sought to adjust the valuation of its properly taxable property pursuant to the statutory procedure set forth in Arkansas Code Annotated sections 26-27-317 and 26-27-318 (Repl. 2012), while its subsequent refund action sought a return of taxes paid on nontaxable property as is authorized under Arkansas Code Annotated section 26-35-901 (Repl. 2012). Thus, DeSoto argues that even though the valuation and refund actions were both based on the 2012 assessment of its property, the object, legal basis, and remedy for each action were fundamentally different.
We agree with DeSoto that its refund suit was not required to be dismissed pursuant to Rule 12(b)(8). The valuation claim and the refund claim are governed by separate statutory procedures and encompass different issues. Under section 26-35-901(a), only "erroneously assessed" property as defined in Arkansas Code Annotated section 26-28-111(c) entitles the taxpayer to a refund. Erroneous assessments are described as "actual and obvious errors on the tax books and related records, with such errors being restricted to extension errors, erroneous property descriptions, classifications, or listings[.]" Ark. Code Ann. § 26-28-111(c) (Repl. 2012). This statute specifically states that its provisions shall not be utilized to make any change in the valuation of property, other than the change in valuation necessitated by the correction of actual and obvious errors as described in that subsection. Id. As this court explained in Outdoor Cap Co. v. Benton County Treasurer , the nature of erroneous assessments in section 26-35-901 is an assessment that "deviates from the law and is therefore invalid," and it "does not refer to the judgment of the assessing officers in fixing the amount of the valuation of the property." 2014 Ark. 536, at 10, 453 S.W.3d 135, 142 (quoting Ritchie Grocer Co. v. City of Texarkana , 182 Ark. 137, 30 S.W.2d 213 (1930) ).
In its refund action, DeSoto alleged that it had recently discovered that a portion of its property had been erroneously assessed in 2012 because it was either exempt from taxation or was not located in Faulkner County. Accordingly, its claim for a refund of these taxes was distinct from its previous valuation appeal in which it argued that Hill had used an incorrect assessment method to value its taxable personal property. See Clay Cty. v. Brown Lumber Co. , 90 Ark. 413, 119 S.W. 251 (1909) (holding that there is a distinction between the statutory procedure to challenge an overvaluation of property and the procedure to obtain a refund of taxes erroneously paid). We have held that if the objects of the two suits are different, they may progress at the same time even though they are between the same parties and involve the same subject matter. Braswell v. Gehl , 263 Ark. 706, 567 S.W.2d 113 (1978) ; Wilson v. Sanders , 217 Ark. 326, 230 S.W.2d 19 (1950).
DeSoto's argument is also supported by the timelines provided in the relevant statutes. A taxpayer must appeal an assessment to the county equalization board by the third Monday in August of that year, and an appeal from the board to the county court must be filed by the second Monday in October and decided by November 15. Ark. Code Ann. § 26-27-317(a)(1) ; Ark. Code Ann. § 26-27-318(c)(1). A claim for a refund of taxes erroneously assessed and paid, however, must only be made within three years from the date the taxes are paid. Ark. Code Ann. § 26-35-901(a)(2). These statutory requirements clearly contemplate separate actions for a valuation appeal and a refund claim. Thus, DeSoto's refund suit was not barred by the "same transaction or occurrence" provision in Rule 12(b)(8), and the circuit court erred by dismissing the complaint on this basis.
In its second point on appeal, DeSoto argues that the circuit court also erred by finding that DeSoto's refund claim was barred by res judicata. There are two facets to the doctrine of res judicata: issue preclusion and claim preclusion. Hardy v. Hardy , 2011 Ark. 82, 380 S.W.3d 354. Both parties agree that claim preclusion is the form of res judicata at issue in this case. The five factors necessary for claim preclusion to bar relitigation are (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action; and (5) both suits involve the same parties or their privies. Id. Assuming that these five factors are met, claim preclusion will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. Id. The purpose of the res judicata doctrine is to put an end to litigation by preventing a party who had one fair trial on a matter from relitigating the matter a second time. Powell v. Lane , 375 Ark. 178, 289 S.W.3d 440 (2008). DeSoto contends that res judicata did not bar its refund action because the valuation appeal was not a final judgment on the merits by a court with proper jurisdiction. In addition, DeSoto argues that the two actions did not involve the same claim or cause of action for the same reasons discussed under its first point on appeal.
We agree with DeSoto that res judicata does not bar its refund suit. DeSoto's valuation appeal was dismissed by the circuit court for lack of subject-matter jurisdiction, and this court affirmed that dismissal. DeSoto I , supra . We have held that a court of "proper jurisdiction" for purposes of res judicata means that a court has "jurisdiction of the person and the subject matter." Eiermann v. Beck , 221 Ark. 138, 141, 252 S.W.2d 388, 389 (1952) ; cf. Head v. Caddo Hills Sch. Dist. , 294 Ark. 561, 745 S.W.2d 595 (1988) (holding that when the circuit court had no jurisdiction to hear an appeal, res judicata did not attach to bar a second suit); Purser v. Buchanan , 2013 Ark. App. 449, 2013 WL 4557585 (stating that an invalid judgment rendered by a court lacking subject-matter jurisdiction could not have preclusive effect). Because the valuation appeal was dismissed for lack of subject-matter jurisdiction, there was no valid judgment in that case by a court with proper jurisdiction, and all of the required elements of claim preclusion were not satisfied. Thus, it is unnecessary to discuss whether the remaining elements were met. Accordingly, we hold that the circuit court erred by dismissing DeSoto's refund action based on the doctrine of res judicata. We reverse the circuit court's order of dismissal and remand for further proceedings.
Reversed and remanded.
Wood, J., dissents.
On November 30, 2017, we affirmed the circuit court's dismissal of DeSoto's valuation appeal based on a lack of subject-matter jurisdiction. DeSoto Gathering Co. LLC v. Hill (DeSoto I ), 2017 Ark. 324, 2017 WL 5898321.
We further note that DeSoto's valuation appeal had been dismissed for lack of subject-matter jurisdiction by the time the circuit court ruled on Hill's motion to dismiss the refund complaint. In Allstate Insurance Co. v. Redman Homes, Inc. , 302 Ark. 335, 789 S.W.2d 454 (1990), we held that the subsequent dismissal of the first suit before the circuit court determined the sufficiency of a motion to dismiss the second suit precluded the application of Rule 12(b)(8) because there was no longer any other action pending. See also Valley v. Helena Nat'l Bank , 2010 Ark. App. 560, 2010 WL 3422460 (holding that Rule 12(b)(8) did not apply when the first suit had been dismissed and only the second suit remained). As the circuit court recognized, DeSoto had appealed the dismissal of its valuation action, and that appeal was still pending before this court at the time of the circuit court's order in this case. However, an appeal from an order of dismissal does not generally detract from the force of that dismissal order. 1 Am. Jur. 2d § 16, Pendency in reviewing court (2018); see also Solarana v. Indus. Elecs., Inc. , 50 Haw. 22, 428 P.2d 411 (1967). Accordingly, DeSoto's first case was no longer pending for purposes of Rule 12(b)(8) when the circuit court ruled on Hill's motion to dismiss the refund action. | [
-44,
-18,
68,
12,
40,
-32,
2,
-84,
66,
-95,
119,
83,
-89,
-30,
16,
123,
-21,
95,
117,
-24,
-58,
-73,
65,
98,
-48,
-77,
-39,
87,
57,
75,
-12,
-42,
76,
97,
-22,
69,
68,
10,
-25,
88,
-50,
3,
9,
73,
121,
-63,
60,
-85,
20,
11,
113,
-90,
-8,
44,
61,
-61,
104,
46,
-7,
-71,
68,
-72,
-102,
31,
95,
6,
49,
20,
-38,
-125,
72,
42,
-112,
57,
0,
-19,
115,
54,
-110,
84,
5,
-35,
13,
32,
35,
3,
17,
-17,
-72,
-88,
6,
-34,
-107,
-9,
-48,
9,
75,
13,
-73,
20,
126,
22,
77,
124,
-26,
-107,
-33,
108,
-114,
-50,
-108,
-79,
7,
32,
-120,
115,
-1,
39,
16,
85,
-51,
-14,
116,
7,
63,
-117,
-57,
-40
] |
KENNETH S. HIXSON, Judge
Appellant Brandon Wallace was charged with rape and second-degree sexual assault allegedly committed against A.M. when she was thirteen years old. After a jury trial, Mr. Wallace was acquitted of rape but convicted of second-degree sexual assault. For this conviction Mr. Wallace was sentenced to fifteen years in prison, and he now appeals.
On appeal, Mr. Wallace raises one argument. He argues that the trial court erred in failing to give the complete version of his proposed jury instruction pertaining to consciousness of guilt. We affirm.
In 2014, Mr. Wallace lived with his then girlfriend of five years, Becky. Becky is A.M.'s mother. Also residing in the house were A.M. and her three younger siblings. Mr. Wallace is not the father of either A.M. or the second oldest child, but he is the father of the two youngest children.
The State alleged that Mr. Wallace had sexually assaulted A.M. between September and November 2014. These incidents allegedly occurred when Becky, a night-shift ER nurse, was at work while Mr. Wallace was at home watching the children.
Prior to trial, the State filed a motion of its intent to introduce testimony that after the allegations against him surfaced, Mr. Wallace purchased a gun and told one of the State's witnesses (Becky) that he was going to kill himself. The State also sought to introduce testimony that when Mr. Wallace was arrested, he asked the police to shoot him. Mr. Wallace filed a response to the State's motion, seeking to exclude this testimony on the grounds that this proposed evidence of his consciousness of guilt violated Arkansas Rules of Evidence 403 and 404(b). Mr. Wallace argued, among other things, that any probative value of the proposed testimony was outweighed by its unfair prejudice. After a pretrial hearing on the State's motion, the trial court denied Mr. Wallace's objection to the testimony and ruled it admissible.
A.M. testified at trial that she was born on December 28, 2000. A.M. stated that Mr. Wallace touched her inappropriately on multiple occasions beginning in September 2014. A.M. testified that the first time this happened Mr. Wallace came into her bedroom, and while she was lying down, he felt her breast, buttocks, and inner thigh through her clothing. A.M. stated that this happened while her mother was at work. According to A.M., on the following day Mr. Wallace warned her that if she told anyone what had happened he would kill her and her family. A.M. testified that over the next couple of months Mr. Wallace touched her in this manner about four more times over her clothing and touched her twice underneath her clothing.
The last such occurrence happened on the night of November 6, 2014. A.M. stated that while her mother was at work, Mr. Wallace came into her bedroom and was touching her mainly on her inner thigh. A.M. told him to stop and then got angry and left the house. While A.M. was walking away from their house, Mr. Wallace followed her in his truck and was trying to get her to get into the truck to take her back home. The police arrived as A.M. and Mr. Wallace were arguing, and A.M. told the police that she did not want to go back to the house because Mr. Wallace rapes her there.
Officer Keith Wilson testified that he arrested Mr. Wallace on the night of November 11, 2014. Officer Wilson testified that he approached Mr. Wallace's truck and that Mr. Wallace pulled out a cell phone, pointed it at the officers, and said "shoot me." Officer Wilson could tell it was a cell phone from the light of the cell phone, and he told the other officers not to shoot. Mr. Wallace was then taken into custody.
A.M.'s mother, Becky, testified that she first became aware of the allegations against Mr. Wallace on the night of November 6, 2014, when she was contacted by the police. Becky stated that Mr. Wallace has not lived in their house since that time. Becky testified that a few days after these allegations surfaced but before Mr. Wallace was arrested, he approached her in her garage; he had a gun in his hand and was making statements about killing himself with the gun.
After the State rested, Mr. Wallace made arguments to the trial court regarding his proposed jury instruction on consciousness of guilt. Mr. Wallace proffered the following instruction:
Members of the jury, you are instructed that evidence of other alleged crimes, wrongs or acts of Brandon Wallace may not be considered by you to prove the character of Brandon Wallace in order to show that he acted in conformity therewith.
This evidence is not to be considered to establish a particular trait of character that he may have, nor is it to be considered to show that he acted similarly or accordingly on the day of the incident.
This evidence is merely offered as evidence of consciousness of guilt. Whether any other alleged crimes, wrongs, or acts have been committed is for you to determine.
You are specifically cautioned that evidence of consciousness of guilt of a defendant may not be used as a substitute for proof of guilt. Contemplation of suicide does not create a presumption of guilt.
Contemplation of suicide under these circumstances may be motivated by a variety of factors, some of which could be called consciousness of innocence. Innocent people may feel depressed and suicidal following an accusation of sexual misconduct, especially against a minor, and especially against a minor household member. They may also contemplate suicide because they are overwhelmed, or unable to confront a situation, or for any number of understandable reasons under these circumstances.
You should consider such evidence of contemplation of suicide alongside other presented evidence and give it the weight you believe it deserves, if any. You alone, the jury, may designate a weight to this evidence and it is your duty to do so, in conjunction with the rest of the evidence presented to you during this trial.
You are free to ignore any such evidence if you decide that such conduct was innocent in nature or was not reflective of a consciousness of guilt of the crime charged. You may also ignore this evidence if you cannot decide upon the defendant's motivation for the contemplation of suicide.
You are reminded that you may not find the defendant guilty purely on the basis of this evidence but it may be used by you in conjunction with other evidence to determine guilt or innocence.
The State objected to giving the entirety of the above instruction, and instead proposed that only the first three paragraphs be given to the jury. The first three paragraphs are a verbatim reproduction of AMI Crim. 2d 203-A, which pertains to an evidentiary instruction given pursuant to Ark. R. Evid. 404(b).
The trial court refused to give the entire eight-paragraph instruction proffered by Mr. Wallace. However, the trial court did give the first four paragraphs of Mr. Wallace's proposed instruction, thus instructing the jury as follows:
Members of the jury, you are instructed that evidence of other alleged crimes, wrongs or acts of Brandon Wallace may not be considered by you to prove the character of Brandon Wallace in order to show that he acted in conformity therewith.
This evidence is not to be considered to establish a particular trait of character that he may have, nor is it to be considered to show that he acted similarly or accordingly on the day of the incident.
This evidence is merely offered as evidence of consciousness of guilt. Whether any other alleged crimes, wrongs, or acts have been committed is for you to determine.
You are specifically cautioned that evidence of consciousness of guilt of a defendant may not be used as a substitute for proof of guilt. Contemplation of suicide does not create a presumption of guilt.
At the close of the case, the trial court gave additional jury instruction, and the jury heard closing arguments. The jury returned a guilty verdict against Mr. Wallace for committing second-degree sexual assault.
The sole argument raised by Mr. Wallace in this appeal is that the trial court abused its discretion in failing to give the full eight-paragraph version of his proposed jury instruction pertaining to consciousness of guilt. Mr. Wallace contends that by omitting the final four paragraphs of his proposed instruction, the jury was not informed that his threat to commit suicide and his effort to provoke the police into shooting him were not necessarily proof of Mr. Wallace's consciousness of guilt. Mr. Wallace complains that the instruction given by the trial court did not cover the possibilities of inferences other than Mr. Wallace's consciousness of guilt, which were set forth in his proffered instruction. Because inferences other than Mr. Wallace's guilt of second-degree sexual assault could reasonably be drawn from his suicidal conduct, Mr. Wallace argues that it was reversible error to refuse his proffered instruction.
As an initial matter, our supreme court has held that when evidence of another crime or wrong reflects consciousness of guilt of the commission of the crime charged, it is independently relevant and admissible under Ark. R. Evid. 404(b). Dimas-Martinez v. State , 2011 Ark. 515, 385 S.W.3d 238. More specifically, our supreme court has held that a defendant's attempt to commit suicide can be offered by the State at trial to prove the defendant's consciousness of guilt of the charged offense. Strong v. State , 372 Ark. 404, 277 S.W.3d 159 (2008).
Inclusion or exclusion of a jury instruction is a matter of discretion for the trial court, whose ruling will not be reversed in the absence of an abuse of discretion. Taylor v. State , 2013 Ark. App. 146, 2013 WL 765229. A party is entitled to a jury instruction if it is a correct statement of the law and there is some basis in the evidence to support giving the instruction. Id. Nonmodel instructions are to be given only when the trial court finds that an AMCI instruction does not accurately state the law or AMCI does not contain an instruction on the needed subject. Blaney v. State , 280 Ark. 253, 657 S.W.2d 531 (1983). Finally, our supreme court has stated that in determining whether the trial court erred in refusing a jury instruction in a criminal trial, the test is whether the omission infects the entire trial such that the resulting conviction violates due process. Branstetter v. State , 346 Ark. 62, 57 S.W.3d 105 (2001).
We conclude that the trial court did not abuse its discretion in refusing to give the entire jury instruction proffered by Mr. Wallace and instead giving the abbreviated version that it gave. The first three paragraphs of the jury instruction given by the trial court were taken directly from a model instruction, AMI Crim. 2d 203-A, and was a correct statement of the law concerning a defendant's consciousness of guilt under Ark. R. Evid. 404(b). In addition to the model instruction, at Mr. Wallace's request, the trial court permitted an additional paragraph, giving the jury the following cautionary instruction:
You are specifically cautioned that evidence of consciousness of guilt of a defendant may not be used as a substitute for proof of guilt. Contemplation of suicide does not create a presumption of guilt.
The instruction as given was a correct statement of the law and was proper.
Although a defendant's attempt to commit suicide can be offered to prove a defendant's consciousness of guilt, see Strong , supra , appellant has cited no Arkansas case, and we know of none, that stands for the proposition that the jury should be instructed that evidence of a defendant's suicide attempts might be proof of his innocence. Nor is there any such model jury instruction. The instruction as given cautioned the jury that although the evidence was offered as consciousness of guilt, such evidence may not be used as a substitute for proof of guilt and that contemplation of suicide creates no presumption of guilt. As acknowledged by the State in its closing argument to the jury, there are "absolutely reasons" other than guilt that people contemplate suicide. While the myriad of other possibilities for contemplating suicide might be appropriate for the defense to argue in closing argument, we conclude that there was no abuse of discretion by the trial court in limiting the consciousness-of-guilt jury instruction as it did in this case.
Affirmed.
Glover and Vaught, JJ., agree.
Mr. Wallace does not challenge on appeal the trial court's ruling that this testimony was admissible. | [
112,
-30,
-51,
-68,
43,
65,
42,
-100,
98,
-125,
111,
-13,
-83,
-41,
20,
123,
-85,
123,
69,
97,
-45,
-89,
3,
97,
-14,
115,
-6,
-45,
50,
79,
-12,
-76,
76,
96,
-54,
-35,
98,
-118,
-19,
92,
-122,
20,
-85,
-48,
80,
-128,
36,
39,
64,
7,
49,
-98,
-13,
43,
-68,
-61,
105,
44,
91,
-68,
64,
53,
-118,
7,
-49,
20,
-77,
52,
-97,
-85,
120,
62,
-40,
49,
0,
104,
115,
-74,
-122,
116,
121,
-103,
13,
96,
98,
16,
13,
-60,
105,
-120,
-65,
111,
-99,
-89,
-40,
97,
75,
45,
-73,
-35,
116,
84,
-82,
-6,
-6,
78,
116,
100,
46,
-53,
-74,
-71,
-51,
56,
22,
-80,
-29,
53,
0,
117,
-49,
-78,
84,
87,
120,
-33,
-98,
-74
] |
N. MARK KLAPPENBACH, Judge
Liset Araujo appeals the order of the Washington County Circuit Court adjudicating her one-year-old daughter, MM, dependent-neglected. Appellant argues that the circuit court erred in finding that MM was at substantial risk of serious harm. We affirm.
MM was removed from appellant's custody on August 16, 2018. Three days earlier, a hotline call was made reporting that MM's putative father, Sabino Miranda, had punched appellant in the face and back and later punched appellant while she was holding MM. Appellant told family service worker Miranda Collins that after Miranda assaulted her the second time, she ran to a friend's apartment, but Miranda followed her and tried to assault her friend. The friend called the police, and Miranda threatened to kill appellant and her friend and to take MM away. Miranda was arrested and charged with two counts of terroristic threatening, second-degree assault, second-degree domestic assault, and endangering the welfare of a minor in the third degree. Appellant told Collins that the abuse had been an "ongoing thing" and that on one occasion in December, Miranda punched her so hard while she was holding MM that he ended up punching MM in the face as well. Appellant said that both she and MM sustained marks on their faces from the punch.
Appellant told Collins that she did not want to be with Miranda anymore and was willing to do anything to get away from him. Appellant agreed to go to the Peace at Home Family Shelter with MM because they did not know when Miranda would be released from jail, and appellant said that she would use her savings to try to get her own apartment. On August 16, however, appellant called Collins to ask how she could drop the charges against Miranda. Appellant told Collins that she wanted all of this to go away and that she would be willing to go to counseling with Miranda. Appellant reported that the shelter had a bed available for her beginning August 14, but she did not go because she no longer felt that she was in danger. Collins testified that the Arkansas Department of Human Services (DHS) felt that appellant would not protect MM because MM had been hurt during a previous domestic dispute with Miranda, and appellant wanted to drop the charges against Miranda after the latest domestic dispute. MM was thus removed from appellant's custody, and DHS filed a petition for emergency custody and dependency-neglect.
Appellant testified at the September 26 adjudication hearing that she had been at the shelter since August 16. She denied telling Collins that she did not think she needed to go and said that she did not go on August 14 because the shelter did not send someone to pick her up as promised. She admitted that she had called and asked about dropping the charges against Miranda but said that she did not know what she was thinking and did not actually drop the charges. She filed a petition for an order of protection against Miranda on August 21 and was ultimately granted a final order of protection. Appellant said that she did not desire to reconcile with Miranda and that she had asked his attorney to tell Miranda to take her name off their apartment lease so she could rent her own apartment. Appellant testified that she could stay at the shelter until then and that MM could stay at the shelter with her.
Family service worker K.C. Oliver testified that MM was in a foster home and that DHS did not believe she could be returned to appellant's custody immediately. Although appellant's visits were going well and DHS wanted to increase them, Oliver said that appellant had not undergone counseling, and she was concerned about appellant's ability to protect MM if she went home. Miranda testified that he slapped appellant on August 12 when she was yelling at him, but he denied that any physical contact occurred later that night while they were arguing. He also denied the punching incident alleged to have occurred in December and said that he had never hit MM.
The circuit court ruled from the bench that it found by a preponderance of the evidence that MM was dependent-neglected. Pursuant to the adjudication order, MM was adjudicated dependent-neglected as a result of neglect and parental unfitness. Appellant now appeals the adjudication order.
Adjudication hearings are held to determine whether the allegations in a petition are substantiated by the proof. Ark. Code Ann. § 9-27-327(a)(1)(A) (Supp. 2017). Dependency-neglect allegations must be proved by a preponderance of the evidence. Ark. Code Ann. § 9-27-325(h)(2)(A)(2) (Supp. 2017). In reviewing a dependency-neglect adjudication, we defer to the circuit court's superior position to observe the parties and judge the credibility of the witnesses. Merritt v. Ark. Dep't of Human Servs. , 2015 Ark. App. 552, 473 S.W.3d 31. We will not reverse the circuit court's findings unless they are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id.
The juvenile code defines a dependent-neglected juvenile to include any juvenile who is at substantial risk of serious harm as a result of neglect or parental unfitness. Ark. Code Ann. § 9-27-303(18)(A) (Supp. 2017). The definition of neglect includes the failure to take reasonable action to protect the juvenile from abuse, neglect, or parental unfitness when the existence of this condition was known or should have been known. Ark. Code Ann. § 9-27-303(36)(A)(iii). An adjudication of dependency-neglect occurs without reference to which parent committed the acts or omissions leading to the adjudication; the juvenile is simply dependent-neglected. Merritt, supra .
Appellant argues that the facts do not support a conclusion that MM was at substantial risk of serious harm due to a failure to protect or parental unfitness. Instead, she argues that she discharged her parental responsibilities and acted to protect MM by obtaining the order of protection, staying at the shelter, and separating from Miranda. She claims that her actions completely negated any basis for the court to find that MM would be at substantial risk of harm in her care and thus do not support a finding of dependency-neglect and continued separation from her child.
We disagree and hold that the circuit court's finding that MM was dependent-neglected is not clearly erroneous. Appellant reported that Miranda punched her while she was holding MM; that he had punched her earlier the same day; that the abuse had been an "ongoing thing"; and that he had previously punched her so hard while she was holding MM that it resulted in MM's getting punched and sustaining a mark on her face. Despite all of this, appellant initially inquired about dropping the criminal charges against Miranda. The evidence that MM had been subjected to her parents' ongoing domestic abuse and had been placed in harm's way herself after having been previously injured shows that she was at substantial risk of serious harm as a result of neglect and parental unfitness. While appellant focuses on the actions she took after MM was removed from her custody, this does not negate her failure to act to protect MM while she was in her care. Whether her subsequent actions had sufficiently remedied the situation such that MM should be returned to her custody is a different question that is not properly before us. See Stoliker v. Ark. Dep't of Human Servs. , 2012 Ark. App. 415, 422 S.W.3d 123.
Affirmed.
Abramson and Brown, JJ., agree. | [
-47,
-30,
-4,
-20,
26,
97,
26,
56,
-45,
-29,
-14,
-13,
-21,
-28,
16,
105,
-85,
123,
100,
121,
67,
-73,
79,
97,
120,
-14,
56,
85,
-78,
109,
-19,
94,
76,
112,
-54,
81,
66,
-38,
-27,
-36,
-122,
1,
-85,
-4,
83,
-125,
40,
107,
26,
7,
49,
-82,
-14,
46,
60,
-54,
40,
110,
73,
-67,
-36,
47,
-49,
23,
-113,
2,
-93,
20,
-97,
-121,
80,
32,
-104,
56,
0,
-22,
114,
-74,
-126,
116,
71,
-69,
13,
116,
102,
-127,
44,
-57,
-32,
105,
46,
-66,
-99,
-90,
-40,
121,
75,
12,
-105,
-44,
124,
-108,
10,
-2,
99,
-52,
116,
76,
4,
-57,
84,
-71,
13,
40,
-34,
-80,
-29,
47,
112,
5,
-50,
-30,
84,
-127,
50,
-101,
-122,
-1
] |
The trial in the matter was held on December 20, 2017.
H.M. testified that appellant is his great uncle-his mother's uncle-and that appellant lived with H.M. and his mother in "like, 2009" when he was nine years old. Everyone had their own rooms. The situation "just went downhill really fast, though." H.M. testified to appellant coming into H.M.'s room, turning off his radio, sitting on his bed, and talking to him. What happened next followed:
[Appellant] would start touching my penis, like, after, like, my underwear was around my ankles. When this happened I was laying down in my bed. [Appellant] would be like in the middle, slash, like the foot kind of [sic]. My mom was home but she was asleep. I know because I could hear her snoring. Me and mom's door- our rooms were next to each other.
[Appellant] would touch my penis with my clothes off. They were around my ankles. I would put them down because he told me to. When I say he, that is [appellant]. He would use his hand to touch me. His hand would slightly go up and down slowly. He didn't say anything to me when he would touch me. When he touched me he has [sic] his clothes on. This happened [one] time that I can remember. He told me not to tell nobody or he would hurt me and my mom.
H.M. also testified to "other things that [he] was not okay with" such as when appellant "put his hand on [H.M.'s] leg" or when appellant "put [H.M.'s] penis in [appellant's] mouth and he would, like, go up and down, kind of, too[.]" Appellant put his mouth on H.M.'s penis only once. H.M. stated that his clothes were around his ankles whenever appellant did these things and that appellant would threaten to hurt H.M. and his mother if H.M. told anyone. H.M. "didn't tell anybody about [appellant] coming into [his] room until [he] was in Vista Hospital. [He] didn't tell anyone because [he] was scared [appellant] would actually hurt [H.M.] and his mom" but he told at Vista Hospital (Vista) because he "felt safer." Vista is a mental hospital where H.M. received treatment in 2010. The first person H.M. told what had happened was his therapist at Vista. H.M. was ten at that time and "wasn't able to see this case through because [he] was scared of seeing appellant."
H.M. became aware of A.H. coming forward about allegations involving appellant in 2014, but he did not learn it from A.H. He did not talk to A.H. about what appellant did to him; "[t]hat wasn't something that was talked about a lot in [his] family." A.H. is the son of H.M.'s sister, Sheena Mendoza. H.M. and his sister lived with their mother, along with Sheena's children, among whom A.H. was included. When H.M. learned about A.H. coming forward, he felt that he "needed to do something[,] but [he] didn't know what to do." He eventually went back to the Children's Advocacy Center (CAC).
H.M. also testified that he did not remember telling a Vista counselor that appellant touched his penis with his mouth, then qualifying that "[he] remember[ed] saying it, but [he didn't] think it happened to be honest." He "[didn't] believe" he told CAC workers that appellant performed oral sex on him though he did tell the same to the prosecutors. However, H.M. testified to having a "bad memory" and that he was "not able to remember exactly what [he] said in 2010 or 2014[,]" though H.M. unequivocally asserted that he remembered appellant touching H.M.'s penis with his hand and mouth in 2009. He "[did] not have any doubt" regarding those memories.
A.H. then testified. Appellant was someone A.H. would spend time with when A.H. went to his grandmother's house when he was in kindergarten. A.H. testified regarding his encounters with appellant that things happened to him that were "not okay with [A.H.]." Appellant would call A.H. over to appellant's lap, then appellant would "touch [A.H.'s] private part over [A.H.'s] clothes." Regarding the specifics, A.H. testified:
I said when I would sit on [appellant's] lap he would have a magazine. Like he would use, like, the magazine to, like, cover it up so that nobody would see it and then, like, just-I think, like, distract them or something, like, where nobody would notice him touching my private parts. When he touched my private parts he would use his hand. He was touching my penis. He touched me on top of my clothes. Sometimes there were other people in the room. They weren't able to see. They wouldn't see he was touching me because he was using a magazine, or, like, it was, like, a newspaper, sometimes a magazine. This happened a lot.... I never asked him to stop because I was, like, too young and I wasn't -- my brain wasn't, like, knowing, like, that's not good. I was in kindergarten and that young age. I didn't understand what was exactly happening.
I didn't tell anybody else about what [appellant] was doing at that time. I just didn't know, like, that it was, like, not good and not bad, but, like, it just wouldn't cross my mind.
A.H. did not disclose what happened to him until a couple years before the trial, after he learned about what appellant had done to H.M.; however, he and H.M. had not talked about what happened "in depth or in detail" as they "try to avoid" the topic. What appellant did "isn't something [his] family talks about very often." What appellant had done to A.H. "just came to him and [he] realized it." A.H. first told his grandmother, who then told A.H.'s mother, who spoke with A.H. when she arrived home from work. A.H. later talked to someone at the CAC. A.H. denied "[making] up this story so that [he] could get out of trouble" the night he first brought the allegations up.
Cynthia McAfee-niece of appellant, mother to H.M., and grandmother to A.H.-confirmed that H.M. was nine when she and H.M. moved in with appellant. She was only in the home "about a month" before she moved out. During the time she lived with appellant, she noticed a difference in H.M.'s behavior, actually before they moved in, "probably three, four months, into [appellant] coming visiting [sic]." She noticed that H.M. was leaving the house without telling her because "he was not wanting to come home." H.M. begged her "several times" not to let appellant live with them; she thought H.M. did not like that there was going to be a father figure in the house. She learned that appellant had sexually abused H.M. from the 2010 investigation. She had not discussed the circumstances of what happened between appellant and H.M. with A.H.; she "[didn't] want to know."
Cynthia observed A.H. getting into appellant's lap while appellant was holding a book; she had seen A.H. get into appellant's lap and look through magazines. She had had "suspicions" of sexual abuse between appellant and A.H., but A.H. would deny that anything had happened and run off whenever she had asked him about it. However, she recalled a particular argument between her and A.H.:
He yelled at me one time and said-me and him had got into an argument and he said, "You'll never understand me, mom." I said, "Why?" He goes, "It's all because of [appellant]." I said, "Why? What do you mean [appellant]?" He goes, "It's just because of [appellant]," then he ran out the door and was gone for about three hours. The argument was over he didn't do his chores. He was supposed to do his chores before he went out to play and he hadn't done them, and I was trying to stop him from leaving.
Cynthia never discussed A.H.'s allegations with H.M. H.M. "was not able to see [his 2011] case [against appellant] through." He had been strong, but started shaking and said he "just [could] not do it" when he learned that appellant would be in the same room as him during the trial.
Sheena Mendoza, mother to A.H., testified that A.H. was six years old in 2009 depending on what time of year it was. At that time, her mother-Cynthia-would take care of her children, including A.H., while she worked. Appellant lived with Cynthia during that time. At the time H.M. disclosed his allegations against appellant, Sheena "wasn't aware of anything involving" A.H. She questioned A.H., but his answer was always no and she did not want to pressure him. She reasoned that "[A.H.] was young, maybe he didn't understand, and then [she] just let it go." But she would ask again a few months later.
Sheena's testimony confirmed how and to whom A.H. disclosed as well as his going to speak with someone at the CAC. It also confirmed Cynthia's testimony about how long Cynthia and H.M. lived with appellant. Sheena "honestly [had] told A.H. that [she didn't] personally want to hear all the details"; she "[does not] ask a lot of questions." The allegations H.M. made were "never a big topic" of discussion between Sheena and Cynthia "because [they] didn't want to talk about it." They never talked about the allegations around the children.
Detective Brian Hanna, with the Rogers Police Department, testified that he investigated the hotline report of A.H.'s allegations against appellant. A.H. was interviewed at the CAC, which is a "neutral environment" where children are "typically" taken; children are not interviewed by law enforcement. Hanna observed the interview on video. He formulated appellant as a suspect based on A.H.'s interview. Hanna interviewed Sheena separately from A.H., as well as H.M. In 2014, H.M. said he performed oral sex on appellant, but not that appellant performed oral sex on H.M. During his investigation, he learned that Sheena had asked A.H. "repeatedly" about whether appellant had done anything to him-which he found to be normal-however, he asked her and Cynthia to refrain from talking to the kids about the allegations to "protect the integrity of the investigation[.]" Following Hanna's testimony, Torkleson testified virtually identically to his Rule 404(b) -hearing testimony.
After Torkleson's testimony, appellant moved for a directed verdict and dismissal of the charges against him. Regarding count one, sexual assault in the second degree, appellant argued that
[appellee had] not proven that [appellant] engaged in sexual conduct with A.H., who was less than 14 at the time of the alleged offense, and not his spouse. The only evidence presented has been the uncorroborated testimony of the alleged victim. The fact that he was living with [appellant] at the time of the alleged offense is only circumstantial, and the time frame is confusing because of his age at that time.
Regarding count two, appellant argued that
[appellee had] not proven that [appellant] engaged in deviate sexual behavior with H.M., who was less than 14 years of age at the time of the alleged offense. The only evidence presented has been his testimony; and, in fact, H.M. testified that he did not think that it happened and did not remember it happening when asked if [appellant] had touched him with his mouth.
The motion was denied. The appellant then testified.
Appellant stated that Cynthia was used to him "coming down on the weekends" and that he came down "all different days" once he retired, but asserted that "on average it was maybe every two months or so[,]" mainly for special occasions but "[a]ny excuse [he] could come up with to go down there and visit A.H." He denied talking to H.M. until he had made several trips down. He had not lived with children in his home since his divorce in 1979; however, he moved to Arkansas on April 1, 2009, and allowed Cynthia and H.M. to live with him. Sheena's children would be picked up by Cynthia and stay with her at appellant's home "between an hour or two hours" until Sheena got home from work. Sheena never came to the house; Cynthia always took the children to her.
Appellant testified to a litany of things he "never" did or which never occurred including: (1) he never ate dinner with Cynthia and the kids as a family, (2) he never sat in the living room with the children and watched TV; (3) A.H. "never sat in [his] lap after school"-that "never happened"; (4) he never babysat; and (5) he never allowed H.M. or A.H. to go in his bedroom to watch TV. He "absolutely, [he swore] to God he never touched A.H. on his penis" and that he did not keep magazines in his house because he "[didn't] believe in them" and was "totally against" them. He "absolutely [knew] of no reason" why A.H. would make his allegations up. There "wasn't ever a point that [he] went in H.M.'s room after Cynthia was in bed." Appellant stated that H.M. had "behavioral problems" when he moved in that Cynthia had told him about "from the first time [he] went down there." H.M. was already in counseling when appellant moved to Arkansas.
Regarding H.M.'s allegations, appellant testified, "[At] no point did I touch H.M. on the penis. Absolutely not on top of his clothes or under his clothes. As God as my witness I did not perform oral sex on him. I absolutely did not make H.M. perform oral sex on me." He further testified "[d]uring the five to six weeks or even before that when H.M. and Cynthia lived with me I never touched H.M. on the penis. I never touched A.H. on the penis. I never had H.M. touch my penis. I never put my mouth on H.M.'s penis." He denied that there was "any falling out with" H.M. or his mother, Cynthia. The "only reason" he could see was that H.M. was "mad over the waffle" and "was going to commit suicide because [Cynthia] told [H.M.] I made [H.M.] cut [the waffles] up so [H.M.] wouldn't be mad at [Cynthia]." He also referred to his making H.M. learn his multiplication tables as a reason H.M. would make up such allegations.
With regard to his encounter with Torkleson, appellant recalled the stop and "vaguely" recalled his "chat" with Torkleson. Appellant had been "pretty upset that day" because he "had just lost his family." He said that he was a lonely, gay man who thought he had found a new family, but he had not. Appellant testified that he was "experimenting" with a friend's suggestion during that stop since there were no "gay churches" as there had been in Kansas City and he was too old for the bars being in his sixties when he moved to Arkansas. He testified that he "didn't remember" making the statement that he was "sexually frustrated because [he missed] his boys." However, he immediately followed up by saying, "I do remember saying that about my boys, but when I was talking about my boys I was talking about I would be ashamed if they knew I was getting a ticket for this but none-had nothing to do with sexual arousal." His boys were currently in their forties but were two- and five-and a half years old when he last had any contact with them.
Following appellant's testimony, appellant rested his case. He then renewed his motion for directed verdict asserting that appellee failed to prove that appellant engaged in sexual conduct with A.H. on count one of sexual assault in the second degree and failed to prove that appellant engaged in deviate sexual behavior with H.M. on count two of rape. He specifically argued that H.M. "gave uncorroborated and inconsistent testimony and he, in fact, testified that he did not think it happened or it did not happen, or he didn't remember it happening that [appellant] had touched him with his mouth." The renewed motion was denied. The jury subsequently found appellant guilty as charged, sentencing him to twenty years' imprisonment on the charge of sexual assault in the second degree and thirty years' imprisonment on the charge of rape, to be served consecutively. The circuit court entered a sentencing order reflecting the same on January 5, 2018. This timely appeal followed.
This court treats a motion for directed verdict as a challenge to the sufficiency of the evidence. In reviewing a challenge to the sufficiency of the evidence, we determine whether the verdict is supported by substantial evidence, direct or circumstantial. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. The credibility of witnesses is an issue for the jury and not the court. The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence.
Appellant's first argument on appeal is that appellee failed to prove that he committed sexual assault in the second degree against A.H. He argues that "it is not clear that [A.H.] stayed and was 'sitting' in [appellant's] lap ... [that] neither A.H. nor the grandmother's testimony is even consistent with lap sitting." He asserts that "there was no indication by any of the [appellee's] witnesses that a kindergartener sitting in a lap reading a book after school (the facts viewed in the most favorable light to the [appellee] ) is wrong or inappropriate." Accordingly, he argues that appellee failed to prove the sexual-gratification element of sexual assault in the second degree. This court does not agree.
Sexual assault in the second degree is committed when a person who is eighteen years of age or older engages in sexual contact with another person who is less than fourteen years old and not the person's spouse. Sexual contact is defined as any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female. Sexual gratification is not defined by the statutory code, but the two words have been interpreted according to their plain meaning.
Testimony revealed that A.H. was in kindergarten at the time of the occurrences with appellant, well below the fourteen-year-old threshold for the charged crime. It is undisputed that appellant was not married to A.H. A.H. testified that appellant (1) touched him through his clothes on multiple occasions-sometimes in the presence of others-by placing A.H. on appellant's lap and using a magazine to shield appellant's hand touching A.H.'s penis through A.H.'s clothes. A sexual-assault victim's testimony may constitute substantial evidence to sustain a conviction for sexual assault. The victim's testimony need not be corroborated, and the victim's testimony alone, describing the sexual contact, is enough for a conviction. In any case, Cynthia testified to seeing A.H. sitting on appellant's lap. The credibility of witnesses is a matter for the jury's consideration. Even where the defendant denies the allegations, the credibility and weight of the evidence are issues properly left to the fact-finder. The jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the victim's account of the facts rather than the defendant's. It is clear that the jury chose to believe A.H. and Cynthia; however, A.H.'s testimony was substantial evidence to support the conviction by itself.
Appellant's second argument is that appellee did not prove that he committed rape against H.M. While acknowledging that the uncorroborated testimony of a rape victim that shows penetration is sufficient evidence for a conviction, appellant argues that H.M.'s testimony is not sufficient to support a finding of penetration.
A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. "Deviate sexual activity" is defined, in pertinent part, as any act of sexual gratification involving the penetration, however slight, of the anus or mouth of a person by the penis of another person.
H.M. testified that appellant's mouth was on H.M.'s penis and that he would "go up and down" and that he placed his hand on H.M.'s penis and that "his hand would slightly go up and down slowly." The uncorroborated testimony of a child-rape victim is sufficient evidence to sustain a conviction. In Lowe v. State , this court held that "[i]t did not require speculation for the trial court to conclude that some portion of each person's penis entered the other person's mouth to at least some minimal degree" where a child victim testified that he and the appellant had placed their mouths on each other's penises. This court does not agree with appellant's thinly veiled argument that, essentially, he cannot be convicted of rape because he was penetrated (in the mouth) and not the victim. Furthermore, to the extent that appellant makes an argument regarding the consistency of H.M.'s testimony, any inconsistencies in H.M.'s testimony were for the jury to resolve; it is not an issue for the appellate court.
Appellant's third argument is that it was reversible error for the circuit court to admit the testimony of Nick Torkleson. Appellant argues that the evidence was not admissible because (1) it was bad character evidence; (2) the pedophile exception does not apply; (3) there was no "other purpose" for which the evidence could be used; (4) the evidence was not independently relevant pursuant to Rule 403; alternatively, (5) the evidence was more prejudicial than probative; and (6) inclusion of the evidence was not harmless error.
Pursuant to Arkansas Rule of Evidence 404(b), "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." Such evidence is permissible for other purposes, however, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Under Arkansas Rule of Evidence 404(b), evidence of other crimes will be admitted if it has independent relevance, and its relevance is not substantially outweighed by the danger of unfair prejudice. Evidence is independently relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.
Rule 403 states that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Evidence offered by the State is often likely to be prejudicial to the accused, but the evidence should not be excluded unless the accused can show that it lacks probative value in view of the risk of unfair prejudice.
The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the circuit court, and we will not reverse absent a showing of manifest abuse of discretion. Additionally, prejudice must have resulted. Likewise, the balancing mandated by Rule 403 is also a matter left to a circuit court's sound discretion, and an appellate court will not reverse the circuit court's ruling absent a showing of manifest abuse. Abuse of discretion is a high threshold that does not simply require error in the circuit court's decision, but requires that the circuit court act improvidently, thoughtlessly, or without due consideration.
This court addresses together appellant's first, third, and fourth sub-arguments-that Torkleson's testimony was bad character evidence, there was no "other purpose" for which the evidence could be used, and the evidence was not independently relevant pursuant to Rule 403, respectively. The circuit court admitted the evidence on the very limited finding that the statement was "sufficiently similar" to "show sexual proclivity towards missing or towards boys and sexual frustration by not being around them." It made no reference in its ruling to appellant's sexuality or method of attracting partners. The circuit court even excluded any evidence of the outcome of the September 28, 2009 encounter. We cannot hold that the circuit court admitted the evidence as bad character evidence.
Secondly, the timing of the statement aligned with the timing of appellant's sexual encounters with A.H. and H.M., and the jury could have found it to form the basis for a purpose other than conformity with bad character, such as intent or proof of motive or intent to sexually assault and/or rape young boys. Finally, because appellant's statement referenced sexual frustration involving boys at a time when other testimony revealed that he was having sexual encounters with little boys, the statement was independently relevant. No error occurred.
Appellant's second argument is that the pedophile exception does not apply as said exception "has not been expanded to include evidence of a defendant's similar acts with an adult." This argument misunderstands the circuit court's ruling for it did not admit appellant's statement to Torkleson because he was driving while masturbating to pick up consenting adult men, but solely because appellant voluntarily made a statement linking his sexual frustrations with being unable to see boys.
The "pedophile exception" to Rule 404(b) allows evidence of prior sexual conduct with children to show the defendant's proclivity for a specific act with a person and helps show the depraved sexual instinct of the accused. Under the pedophile exception, we look at factors such as the time interval between the incidents, the similarity of the incidents, and whether the defendant had an intimate relationship with the victim. There are two requirements for this exception to apply: (1) a sufficient degree of similarity between the evidence to be introduced and the charged sexual conduct, and (2) evidence of an "intimate relationship" between the defendant and the victim of the prior act. The "intimate relationship" requirement can be satisfied when a defendant lives in the same home as the victim or otherwise has access to the victim. Additionally, evidence admitted under Rule 404(b) must be temporally proximate, and we apply a reasonableness standard to determine whether a prior crime remains relevant despite the passage of time.
The admitted statement was made by appellant, of his own volition, in 2009, which was around the same time he began his sexual encounters with A.H. and H.M., according to their testimony. His stated sexual frustration stemmed from not seeing his "boys," a term which appellant testified he used to refer to his own sons with whom he had a close relationship prior to his divorce from their mother. When he last encountered his "boys", they were "little" with one son being five and a half years old when he last saw him, around the same age as A.H. when appellant began assaulting him. While the circuit court did not expressly state that it was ruling for appellee under the pedophile exception, its reference to appellant's sexual proclivity as the basis for admitting the evidence demonstrates that it ruled pursuant to said exception. This court holds that there was no abuse of discretion; we find no error.
Appellant's final arguments are that the evidence was more prejudicial than probative and that inclusion of the evidence was not harmless error. Appellant cites this court to Purdie v. State and Cox v. State for the premise that an expert witness's testimony cannot be allowed to determine whether a victim is telling the truth in his or her testimony. He then goes on to admit that this case "does not necessarily turn on a credibility assessment by a witness" but argues that because H.M.'s testimony was inconsistent, Torkleson's testimony that appellant's 2009 statement was a "red flag" was "essentially saying that [appellant's] statements equal a child molester." He further asserts that, like in Purdie and Cox , the evidence against appellant was not "overwhelming" where the only evidence was the testimony of the respective victims so that the circuit court's admission of the statement was not harmless error. We cannot agree.
Beyond the victims' testimony was appellant's own testimony, which at best, could be seen as not helpful to his case. The fact-finder need not lay aside its common sense in evaluating the ordinary affairs of life and may consider and give weight to any false, improbable, and contradictory statements made by the defendant to explain suspicious circumstances when determining criminal knowledge and intent. Additionally, there was testimony from other witnesses that they had seen A.H. on appellant's lap behind a magazine on at least one occasion-as testified to by A.H. and contrary to appellant's testimony-and that H.M.'s behavior issues increased around the time appellant entered his life and H.M. had stopped wanting to come home once he was living with appellant. If any error had occurred, and we find that it did not, we would hold that it was harmless.
Affirmed.
Gruber, C.J., and Hixson, J., agree.
H.M. had gone to the CAC after he first reported his encounters with appellant to his therapist in 2010.
He also testified that he lied to the people at Vista to "try to get them to do what [he] wanted" after speaking of a lie he told about hearing voices in an attempt to get released from Vista, which led to a longer stay.
A.H. was in the middle of an argument with his grandmother when he first told what happened between him and appellant.
Appellant had been visiting regularly-"every other weekend"-before he, Cynthia, and H.M. moved in together.
In his testimony, appellant references A.H. and Sheena in these statements. However, he meant H.M. and Cynthia based on his immediately following statement regarding the waffle incident. All witness testimony involving the waffle incident, no matter the witness, made it clear that H.M. was involved in the waffle incident, not A.H., and Cynthia is H.M.'s mother, not Sheena. Appellant later testified that this reason referred to H.M. and not A.H.
Thompson v. State , 2015 Ark. App. 275, at 4, 461 S.W.3d 368, 372 (citing Tubbs v. State , 370 Ark. 47, 257 S.W.3d 47 (2007) ).
Id.
Id.
Id. at 4-5, 461 S.W.3d at 372.
Id. at 5, 461 S.W.3d at 372 (citing Morgan v. State , 2009 Ark. 257, 308 S.W.3d 147 ).
Id.
Gilton v. State , 2018 Ark. App. 486, at 5, 562 S.W.3d 257, 260 (citing Ark. Code Ann. § 5-14-125(a)(3) (Supp. 2017) ).
Id. (citing Ark. Code Ann. § 5-14-101(11) ).
Id. (citing Brown v. State , 374 Ark. 341, 288 S.W.3d 226 (2008) ).
Echoles v. State , 2017 Ark. App. 352, at 5, 524 S.W.3d 417, 420 (citing Brown v. State , 374 Ark. 341, 288 S.W.3d 226 (2008) ).
Id. (citing Colburn v. State , 2010 Ark. App. 587, 2010 WL 3582441 ).
Id. (citing Tryon v. State , 371 Ark. 25, 263 S.W.3d 475 (2007) ).
Id. at 5-6, 524 S.W.3d at 420 (citing Estrada v. State , 2011 Ark. 3, 376 S.W.3d 395 ).
Id. at 5, 524 S.W.3d at 420 (citing Van Winkle v. State , 2014 Ark. App. 591, 445 S.W.3d 542 ).
McPherson v. State , 2017 Ark. App. 515, at 4, 532 S.W.3d 96, 100 (citing Ark. Code Ann. § 5-1-103(a)(3) (Repl. 2013) ).
Id. (citing Ark. Code Ann. § 5-14-101(1) ).
Lowe v. State , 2016 Ark. App. 389, at 3, 500 S.W.3d 176, 178 (citing Matar v. State , 2016 Ark. App. 243, 492 S.W.3d 106 ).
Id. , at 5, 500 S.W.3d at 179.
Wiseman v. State , 2017 Ark. App. 371, at 5, 526 S.W.3d 4, 7 (citing Allen v. State , 2016 Ark. App. 537, 506 S.W.3d 278 ).
McDaniel v. State , 2018 Ark. App. 151, at 5, 544 S.W.3d 115, 118.
Id.
Id. at 5-6, 544 S.W.3d at 118 (citing Jones v. State , 349 Ark. 331, 339, 78 S.W.3d 104, 110 (2002) ).
Id. at 6, 544 S.W.3d at 118 (citing Cluck v. State , 365 Ark. 166, 175, 226 S.W.3d 780, 786 (2006) ).
McPherson v. State , 2017 Ark. App. 515, at 6, 532 S.W.3d 96, 101.
Dolson v. State , 2018 Ark. App. 440, at 7, 558 S.W.3d 899, 903 (citing Chunestudy v. State , 2012 Ark. 222, 408 S.W.3d 55 ).
Id. (quoting Turner v. State , 2018 Ark. App. 5, at 13-14, 538 S.W.3d 227, 238 (citing Dimas-Martinez v. State , 2011 Ark. 515, 385 S.W.3d 238 ) ).
Rayburn v. State , 2018 Ark. App. 84, at 3, 542 S.W.3d 882, 884 (citing Turner v. State , 2014 Ark. App. 428, 439 S.W.3d 88 ).
Dolson , 2018 Ark. App. 440, at 7, 558 S.W.3d at 903-04 (quoting Turner , supra (citing Croy v. State , 2011 Ark. 284, 383 S.W.3d 367 ) ).
Id. at 7, 558 S.W.3d at 904 (quoting Turner , supra (citing Lard v. State , 2014 Ark. 1, 431 S.W.3d 249 ; Craigg v. State , 2012 Ark. 387, 424 S.W.3d 264 ) ).
Rayburn v. State , 2018 Ark. App. 84, at 3, 542 S.W.3d 882, 884 (citing Chunestudy v. State , 2012 Ark. 222, 408 S.W.3d 55 ).
Id. (citing Parish v. State , 357 Ark. 260, 163 S.W.3d 843 (2004) ).
Hortenberry v. State , 2017 Ark. 261, at 10, 526 S.W.3d 840, 847 (citing Rohrbach v. State , 374 Ark. 271, 287 S.W.3d 590 (2008) ).
Henington v. State , 2010 Ark. App. 619, at 7, 378 S.W.3d 196, 200 (citing Kelley v. State , 2009 Ark. 389, at 10, 327 S.W.3d 373, 379 ).
Woods v. State , 2013 Ark. App. 739, at 7, 431 S.W.3d 343, 348 (citing Craigg v. State , 2012 Ark. 387, at 6, 424 S.W.3d 264, 268 ).
2010 Ark. App. 658, 379 S.W.3d 541.
93 Ark. App. 419, 220 S.W.3d 231 (2005).
Worsham v. State , 2017 Ark. App. 702, at 7, 537 S.W.3d 789, 794 (citing Hoodenpyle v. State , 2013 Ark. App. 375, at 9, 428 S.W.3d at 552-53 (citing Hicks v. State , 2012 Ark. App. 667, 2012 WL 5949103 ) ). | [
112,
108,
-87,
-69,
10,
97,
42,
-110,
118,
-125,
51,
-13,
-21,
66,
68,
111,
-112,
111,
84,
-15,
-3,
-77,
7,
33,
-14,
-5,
48,
-41,
-29,
-17,
-74,
-97,
73,
96,
-102,
49,
-62,
-54,
-17,
-36,
-114,
5,
-120,
-32,
17,
2,
36,
51,
69,
7,
49,
23,
-13,
42,
53,
-1,
9,
110,
119,
-66,
-48,
85,
-69,
23,
-3,
52,
-93,
6,
-98,
-115,
112,
62,
-99,
-111,
0,
-83,
115,
-74,
-126,
100,
78,
-82,
8,
98,
-30,
32,
77,
-73,
-4,
-56,
-81,
110,
-68,
-89,
-37,
96,
9,
45,
-65,
-103,
112,
80,
62,
-6,
-55,
-36,
52,
96,
42,
-113,
-124,
-127,
-51,
32,
28,
-70,
-29,
63,
36,
113,
-115,
-80,
84,
87,
122,
-77,
-66,
-78
] |
RAYMOND R. ABRAMSON, Judge
Appellant Jared Harper was convicted by a Miller County Circuit Court jury of rape, second-degree sexual assault, and sexual indecency with a child. The judgment entered on April 12, 2018, reflects that Harper was sentenced to an aggregate term of 360 months' imprisonment. On appeal, Harper argues that the circuit court erred by (1) permitting Missy Davidson to testify as an expert witness about victim recantation, (2) denying his motion for a continuance, and (3) denying his motion to produce the prosecutor's notes from an interview with the victim. For the following reasons, we affirm in part and remand for further proceedings.
In March 2015, Harper's eleven-year-old stepdaughter, K.S., disclosed that Harper had been sexually abusing her. On June 26, 2015, the State filed a criminal information charging Harper with rape, second-degree sexual assault, and sexual indecency with a child.
K.S., who was fourteen years old at the time of trial, testified that Harper had sexually abused her from ages seven to ten. K.S. stated that the first time was after she got out of the shower one day. Harper told her to leave her underwear off. Then he "rolled his finger around [her] private part" but did not put his finger inside her vagina. Other times when K.S. and Harper watched movies together on the couch, he touched her "private parts" with his fingers. K.S. testified that Harper attempted to insert his finger into her vagina, but "he never really got it in."
Harper would stop the inappropriate touching after K.S. told him that it hurt.
K.S. explained that Harper's fingers "went past just the outside." Besides touching K.S. with his fingers, Harper also licked K.S.'s vagina several times. Harper "tried to get [his penis] in [her] hole but it hurt too much so he couldn't." K.S. stated that only the tip of Harper's penis went inside her. K.S. testified that on one occasion when Harper was driving to E-Z Mart, he made her put her mouth on his penis. Harper told K.S. that if she put her mouth on his penis, he would buy her something from E-Z Mart.
K.S. described Harper's penis and semen in specific detail. She testified that she did not tell her mother about the abuse for fear of hurting her mother. She said her mother "was in love with [Harper]" and needed him financially to pay the bills at home. K.S. also testified that she still loves Harper and wants his love in return. She believed that letting Harper sexually abuse her would make him love her.
Missy Davidson interviewed K.S. about the sexual-abuse allegations at the Children's Advocacy Center (CAC) in Texarkana on March 27, 2015. Davidson is the CAC program director and also a licensed professional counselor and a forensic interviewer. K.S. told Davidson about some of the sexual abuse, but not all of it. At that point, Harper was no longer living in the house, and K.S. testified that she missed him and wanted him to come back home. She told Davidson that her family had "lost like everything" and that "[a]ll the money was gone." K.S. testified that she "felt guilty" and "responsible" for hurting her mom and her brothers.
In June 2015, K.S.'s mother took K.S. to meet with Randal Harris, an investigator hired by the defense. K.S. testified that she told Harris the sexual abuse did not happen because she "wanted [her] family back." A few weeks later, K.S. met with Davidson at the CAC and told her that the sexual-abuse allegations were not true. K.S. also wrote a three-page letter in late 2016 stating that she made up the sexual-abuse allegations against Harper because of the problems going on in her family.
Then in 2017, K.S. told Davidson that the allegations were true. She testified that at that time she did it because it had been a couple of years, the allegations were "true," and she was a "little older." K.S. testified that after she made the sexual-abuse allegations against Harper, she and her mom did not get along. But after she recanted, their relationship was "great."
Over Harper's objections at trial, Missy Davidson was qualified as an expert witness in forensic interviews. The circuit court allowed Davidson to testify about the phenomenon of recantation, but not specifically about K.S. or Harper. Davidson explained generally how she conducted child interviews at the CAC. When interviewing a child, Davidson asked "neutral open ended non-leading questions." Davidson looked for "sensory details" about what the child saw, heard, felt, tasted, and smelled.
Davidson also explained the five stages of disclosure that a child typically goes through when reporting abuse. Stage one is "denial" in which a child may deny the sexual abuse altogether or deny only portions of it. Stage two involves the "tentative" stage in which the child may give a few details of the abuse but minimize it. The third stage of disclosure is "active" in which the child may go into much more detail about the abuse. "Recantation" is the fourth stage, with a child recanting and saying the abuse never happened. Finally, the last stage is "reaffirmation" in which the child once again confirms the abuse.
Davidson testified that recantation is common. She also explained that some of the reasons for recantation are that the child loves the abuser and wants things to go back to the way they were before disclosure of the abuse. Davidson did not testify about the victim or the allegations in this case.
On appeal, Harper argues that the circuit court should not have permitted the State to present "profile and bolstering evidence to attempt to explain or excuse the accuser's changing stories." Specifically, Harper maintains that it was improper profile evidence, that Davidson should not have been permitted to testify as an expert, and that it was improper bolstering of the "accuser's testimony."
The standard of review on admissibility of expert testimony is abuse of discretion. Johninson v. State , 317 Ark. 431, 878 S.W.2d 727 (1994). Because the admission of testimony is a matter within the circuit court's sound discretion, we will not reverse that decision on appeal absent a manifest abuse of discretion and a showing of prejudice to the defendant. E.g. , Hajek-McClure v. State , 2014 Ark. App. 690, at 3, 450 S.W.3d 259, 261. Abuse of discretion is a high threshold that requires that the circuit court act improvidently, thoughtlessly, or without due consideration. E.g. , id. at 3, 450 S.W.3d at 261-62. The general test for admissibility of expert testimony is whether the testimony will aid the trier of fact in understanding the evidence or in determining a fact in issue. E.g. , id. at 3, 450 S.W.3d at 262.
Throughout the trial and again on appeal, Harper argues that Davidson's testimony was improper evidence because she testified about "a profile of persons who accuse, recant and then reaccuse." He further alleged that her testimony was an attempt to bolster K.S.'s credibility. We disagree.
Davidson did not offer "profile" evidence about the type of person who reports sexual abuse, recants, and then reaffirms. Nor did she attempt to "bolster" K.S.'s testimony. Davidson never mentioned K.S.'s name during her entire testimony. Davidson, instead, testified generally about how child-forensic interviews are conducted, the typical five stages of disclosure, and the reasons why a child may recant. Davidson did not attempt to explain why K.S. recanted or that K.S.'s sexual-abuse allegations were credible or that K.S. fit the "profile" of a person who would recant abuse allegations.
Our court has expressly held that expert witnesses may testify generally about forensic interviews and recantation. See Sweeten v. State , 2018 Ark. App. 590, 564 S.W.3d 575 ; see also Hill v. State , 337 Ark. 219, 225, 988 S.W.2d 487, 491 (1999) (holding that the DHS caseworker's testimony about the criteria DHS used to determine whether a child's sexual-abuse allegations warranted further investigation was proper and did not bolster the victim's credibility); Davis v. State , 330 Ark. 501, 508-09, 956 S.W.2d 163, 166 (1997) (holding that the circuit court did not abuse its discretion by allowing a family-service worker with DHS to give expert testimony that it was not unusual for child sexual-abuse victims to recant).
In a December 5, 2018 decision, our court specifically addressed Missy Davidson and her expert testimony in Sweeten , 2018 Ark. App. 590, 564 S.W.3d 575 :
The supreme court has said that it is erroneous for the circuit court to permit an expert, in effect, to testify that the victim of a crime is telling the truth. Hill v. State , 337 Ark. 219, 988 S.W.2d 487 (1999). This court reversed in Cox v. State , 93 Ark. App. 419, 220 S.W.3d 231 (2005), because the forensic interviewer testified repeatedly that she believed the victim to be highly credible. We also reversed in Purdie v. State , 2010 Ark. App. 658, 379 S.W.3d 541, because the interviewer reviewed the videotape of the interview with the jury and testified that she did not observe anything that led her to believe that the victim had been coached or that she was fabricating. Here, however, the videos of the interviews were not played for the jury, and Davidson did not testify about the victims or the allegations in this case. Davidson's testimony was more akin to that in Hill , supra , in which a witness testified about the criteria used by the Department of Human Services in evaluating a child's allegation of sexual abuse and the guidelines employed to determine whether the allegations warranted an investigation. The circuit court overruled Hill's objection, finding that the jury was entitled to understand the State's interview and investigation techniques, and the supreme court found no error in permitting the testimony. Based on similar testimony here, we hold that there was no abuse of discretion.
Id. at 5, 564 S.W.3d at 578-79.
Such is the case here. Davidson gave generalized testimony about forensic interviews and recantation and did not testify specifically about K.S. Such testimony is proper expert-witness testimony, and we cannot say that the circuit court abused its discretion in allowing Missy Davidson to testify as an expert.
Harper's second appellate point is that the circuit court erred in denying his motion for continuance. On March 21, 2018, two weeks before the April trial date, Harper filed an emergency motion for supplemental discovery requesting the search warrants the State issued to seize the cell phone of Regina Harper, K.S.'s mother. Six days later, on March 27, 2018, Harper filed a motion for a continuance and a supplement to his motion for a continuance. Harper alleged that the State had obtained the contents of his wife's cell phone from two search warrants issued on March 20, 2018. Within the week, the State gave him a thumb drive containing the contents of the cell phone. He was unable to access the material on the thumb drive. With the help of the Arkansas State Police, Harper gained access to the information on the thumb drive around 9:00 p.m. on March 27, 2018. Harper stated that "there were over 100,000 files to be downloaded from the thumb drive, at least 35 of which were audio recordings, some of considerable length." He alleged that due to the amount of information on the thumb drive, he would be "unable to make meaningful and beneficial use" of the information in the "three business days before trial."
The circuit court held a hearing on Harper's motion for continuance. After hearing from both sides, the circuit court denied the motion and held that the information from the cell phone was not grounds for a continuance. On appeal, Harper claims he was prejudiced by this denial because he was unable to make beneficial use of the contents.
A circuit court shall grant a motion for continuance only upon a showing of good cause and only for so long as is necessary. Thomas v. State , 370 Ark. 70, 257 S.W.3d 92 (2007). A circuit court must use sound discretion in granting or denying a motion for a continuance. E.g. , Sharp v. State , 2015 Ark. App. 718, at 11, 479 S.W.3d 568, 576. Our court will not reverse the circuit court's decision absent clear abuse of that discretion. E.g. , id. at 11-12, 479 S.W.3d at 576. On appeal, the appellant bears the burden of establishing that the circuit court abused its discretion and that he suffered prejudice amounting to a denial of justice. E.g. , id. at 12, 479 S.W.3d at 576. When the prosecutor fails to provide information, the burden is on the defendant to show that the omission was sufficient to undermine confidence in the outcome of the trial. E.g. , Figueroa v. State , 2016 Ark. App. 30, at 2, 480 S.W.3d 888, 890. Harper cannot meet this burden because he did not demonstrate prejudice from the denial of his motion to continue; accordingly, we must affirm.
On appeal, Harper fails to allege specific facts as to how he was prejudiced by the denial of his motion to continue; he simply makes conclusory statements. He does not state what evidence on his wife's phone would have been beneficial to him or how that evidence would have changed his defense, his cross-examination of witnesses, or the outcome of the trial. Because Harper has not demonstrated prejudice from the denial of his motion to continue, we must affirm the circuit court's decision to deny his motion to continue. See Arnold v. State , 2018 Ark. App. 22, at 7, 540 S.W.3d 298, 302 (holding that Arnold did not demonstrate prejudice from the circuit court's denial of his motion for continuance because he "failed to point to any specific information that the continuance would have garnered that would have impacted or changed his cross-examination of [a witness]"). Although we may disagree with the circuit court's decision to deny the motion to continue here, it is well settled that we will not reverse the circuit court's denial of a motion for continuance unless appellant demonstrates that the circuit court abused its discretion and proves prejudice that amounts to a denial of justice. See Hill v. State , 2015 Ark. App. 700, at 6-7, 478 S.W.3d 225, 230. Harper does not meet his burden of showing such prejudice that a denial of justice has occurred in his case, and as such, we affirm.
Harper's third and final point on appeal is that the circuit court erred by denying his request for the prosecutor's notes from an interview with K.S. that occurred on March 6, 2017. Because this issue presents a question of law, our standard of review is de novo. Gulfco of La. v. Brantley , 2013 Ark. 367, 430 S.W.3d 7.
After making the initial allegations of sexual abuse in March of 2015, K.S. recanted on several occasions. On the evening of March 6, 2017, the Miller County prosecutor and one of her deputy prosecuting attorneys met with K.S. at the prosecutor's office. The meeting lasted roughly two hours, and K.S.'s mother sat in the lobby while K.S. talked to the lawyers. On March 10, 2017, before the first trial in June 2017, Harper had filed a motion for the prosecutor to produce, among other things, a copy of her notes from the March 6, 2017 interview with K.S. Harper alleged that during this interview, K.S. re-alleged sexual-abuse allegations against him. Harper maintained that because K.S. initially made sexual-abuse allegations against him on March 27, 2015, and then subsequently recanted those allegations, he was requesting a copy of the prosecutor's notes from the March 6 interview to determine "[w]hat was said to make K.S. change her story, and what K.S. said prior to changing her story."
The circuit court conducted a hearing on Harper's motion to produce on March 13, 2017. Harper claimed that the prosecutor's notes were not work product and explained that K.S.'s "motivat[ion] to fabricate the allegations" was "going to be key in this case." The prosecutor responded, explaining that K.S. came to her office on March 6, 2017, to discuss whether K.S. wanted to proceed with the allegations against Harper because she had previously recanted. The prosecutor further said that during the meeting, K.S. made no statement which would have to be disclosed to Harper. The prosecutor stated that she "did not write down verbatim what [K.S.] said." Rather, she argued, the notes were work product because they contained "opinions, observations of the child's behavior, and demeanor throughout the meeting."
The circuit court found that the prosecutor's notes were not something that had to be turned over to Harper and that they were taken in anticipation of trial. The circuit court also noted that the prosecutor had already given Harper the substance of K.S.'s interview, and it told the State to disclose to Harper any new details from K.S.'s interview that it planned on using at trial.
Before the first trial, Harper requested that the circuit court place the prosecutor's notes from her interview with K.S. under seal for appellate review. Harper also asked that the circuit court review the prosecutor's notes in camera to determine if they contained material the prosecutor was obligated to disclose under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The circuit court stated that the notes were taken in preparation for trial and denied Harper's request for the court to review the notes.
After K.S.'s direct examination at the first trial, Harper once again requested the prosecutor's notes from her interview with K.S. and for the circuit court to place the notes under seal for appellate review. The circuit court denied his request and, without conducting an in camera hearing, found that the notes were not discoverable. This is troubling. Before the start of the second trial, the circuit court noted that its previous "rulings would remain in effect."
On appeal, Harper argues that the circuit court erred by denying his request for the prosecutor to disclose her notes from an interview with K.S. Harper avers that the notes potentially contained Brady material and that the prosecutor was required to disclose them. He argues that he was prejudiced by the State's failure to disclose the notes because K.S. recanted and then re-alleged sexual-abuse allegations only after meeting with the prosecutor. He further claims that the circuit court should have held an in camera hearing to review the notes and/or should have placed them under seal for appellate review. We agree.
Arkansas Code Annotated section 16-89-115(b) (Repl. 2005) provides that after a witness called by the State has testified on direct examination, the court on motion of the defendant shall order the State to produce any statement, as defined in subsection (e) of this section, of the witness in the possession of the State which relates to the subject matter as to which the witness has testified. If the entire contents of the statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his or her examination and use.
Pursuant to this statute, a "statement" means:
(1) A written statement made by the witness and signed or otherwise adopted or approved by him or her; or (2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by the witness to an agent of the state and recorded contemporaneously with the making of the oral statement.
Ark. Code Ann. § 16-89-115(e) (Repl. 2005) (emphasis added).
Harper relies heavily on Winfrey v. State , 293 Ark. 342, 738 S.W.2d 391 (1987), to allege that he is entitled to the notes the prosecutor took during her interview with K.S. In Winfrey , after the first victim had completed her direct testimony, Winfrey moved for the State to produce the reports that one of the prosecutor's employees made concerning his interview with the victim. Id. at 344, 738 S.W.2d at 392. The employee explained during questioning by the circuit court that his written report contained key phrases and direct quotes of what the victim said in her own words. Id. at 345-46, 738 S.W.2d at 392-93. The circuit court denied Winfrey's request for the reports because it ruled that the reports were work product. Id. at 345, 738 S.W.2d at 392. On appeal, the Arkansas Supreme Court explained that the State was obligated under what is now codified at Arkansas Code Annotated section 16-89-115(b) and (e) to give the defense any prior statement of a witness that was "substantially verbatim." Id. The high court reversed the circuit court's ruling because the employee's written report "contained a substantially verbatim, and contemporaneously made, recital of the victims' statements." Id. at 347, 738 S.W.2d at 393.
The State argues that Winfrey is in contrast to the instant case because there is no evidence that the prosecutor's notes contained direct quotes from K.S. The prosecutor stated that she "did not write down verbatim what [K.S.] said." The notes contained "opinions, observations of the child's behavior, and demeanor throughout the meeting." Consequently, the State maintains, the prosecutor's notes were not "substantially verbatim" and were not required to be disclosed to Harper under Arkansas Code Annotated section 16-89-115(b).
This case presents an unusual situation because the circuit court did not conduct an in camera review or place the notes under seal for appellate review. This leaves us with nothing to review on appeal. While the circuit court was not required to hold an in camera hearing to review the prosecutor's notes, it should--at the very least--have placed the notes under seal for appellate review.
Rule 19.6 of the Arkansas Rule of Criminal Procedure provides:
The court may permit any showing of cause in whole or in part for denial or regulation of disclosures to be made in camera. A record shall be made of such proceedings. If the court enters an order granting relief following a showing in camera, the entire record of such showing shall be sealed and preserved in the records of the court, to be made available to the appellate court in the event of an appeal.
Ark. R. Crim. P. 19.6.
We are unable to reach a decision on Harper's third point since there has been no preservation of the contested material for appellate review. Because the circuit court did not conduct an in camera hearing or place the notes under seal for our court's review, we are left with an absence of material and therefore must remand for further proceedings consistent with this opinion. We are aware that an in camera review is discretionary under Rule 19.6, but because we do not have the proper material before us in order to make a decision regarding Harper's final appellate point, we believe both the Supreme Court of the United States case, Pennsylvania v. Ritchie , 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), and the Arkansas Supreme Court case, Taffner v. State , 2018 Ark. 99, 541 S.W.3d 430 provide guidance here.
In Taffner , our supreme court, citing to Ritchie wrote:
The United States Supreme Court determined that the circuit court should have at least reviewed the file to determine the materiality of its content. The Supreme Court did not agree with Ritchie's argument that he was entitled to access to the entire file. The Court concluded that Ritchie's rights could be protected by remanding to allow the trial court to review the file to determine whether it contained information that probably would have changed the outcome of the trial. Specifically, the court held:
We therefore affirm the decision of the Pennsylvania Supreme Court to the extent it orders a remand for further proceedings. Ritchie is entitled to have the CYS file reviewed by the trial court to determine whether it contains information that probably would have changed the outcome of his trial. If it does, he must be given a new trial. If the records maintained by CYS contain no such information, or if the nondisclosure was harmless beyond a reasonable doubt, the lower court will be free to reinstate the prior conviction.
Taffner , at 436-37, (citations omitted).
We find the holdings in both Taffner and Ritchie to be persuasive regarding the case before us. In sum, we affirm the circuit court's rulings qualifying Missy Davidson as an expert and allowing her to testify as well as its decision to deny Harper's motion for a continuance. On remand, the circuit court is instructed to conduct an in camera review of the prosecutor's notes to determine if the notes were "substantially verbatim" and if, based on the circuit court's review, the notes were required to be disclosed to Harper under Arkansas Code Annotated section 16-89-115(b).
Pursuant to Taffner and Ritchie , if the notes contain "information that probably would have changed the outcome" of the trial, Harper should receive a new trial unless "the nondisclosure was harmless beyond a reasonable doubt." See Taffner v. State , 2018 Ark. 99, 541 S.W.3d 430 (quoting Pennsylvania v. Ritchie , 480 U.S. 39, 58, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) ). If the file contains no evidence likely to change the outcome of the trial, or if the notes are not substantially verbatim of the victim's interview, or if the nondisclosure is harmless beyond a reasonable doubt, the circuit court should leave the verdicts undisturbed, as prescribed by Ritchie.
Affirmed in part; remanded for further proceedings.
Virden, J., agrees.
Hixson, J., concurs.
Harper was originally tried on June 26, 2017, but the jury was unable to reach a unanimous verdict; thus, the circuit court declared a mistrial in that case, and he was retried the following April.
K.S. recanted (1) on June 10, 2015, to investigator Randall Harris; (2) on June 24, 2015, to Missy Davidson at the Child Advocacy Center; (3) on June 26, 2015, to DHS workers and/or Miller County sheriff's deputies; and (4) in November 2016 in a three-page letter she wrote. | [
-80,
-18,
-116,
-68,
25,
97,
-22,
52,
26,
-29,
-69,
-13,
-85,
-42,
4,
123,
-85,
127,
84,
97,
-47,
-13,
7,
-63,
-78,
-69,
-16,
95,
-77,
75,
-92,
-75,
72,
-16,
-34,
113,
98,
-54,
-27,
84,
-122,
-124,
-71,
-16,
18,
-62,
36,
123,
66,
7,
49,
-97,
-109,
46,
28,
-57,
105,
110,
83,
-65,
90,
43,
-77,
5,
79,
52,
-93,
-90,
-97,
2,
112,
58,
-104,
49,
0,
-23,
114,
-90,
-126,
-12,
79,
-118,
-88,
32,
98,
32,
13,
-41,
13,
-55,
-82,
126,
-99,
-25,
-104,
104,
64,
45,
-73,
-35,
112,
86,
40,
-22,
107,
76,
53,
100,
-119,
-49,
-124,
-119,
-115,
56,
-42,
50,
-13,
25,
-127,
101,
-49,
-30,
84,
-42,
122,
-45,
-33,
-13
] |
DAVID M. GLOVER, Judge
Carrie Holdcraft appeals the Pulaski County Circuit Court's termination of her parental rights to her daughter, SH (DOB 5-23-12). She argues it was not in SH's best interest for her parental rights to be terminated. We affirm the termination of Holdcraft's parental rights.
The Arkansas Department of Human Services (DHS) exercised a seventy-two-hour hold on SH on November 3, 2016, after receiving a child-maltreatment report that methamphetamine was within easy reach of SH in Holdcraft's home and alleging Holdcraft was not an adequate caregiver due to her use of drugs. While investigating the report, the DCFS worker observed that Holdcraft appeared to be under the influence of an unknown substance, was fidgety, and was constantly moving. While Holdcraft denied using any illegal substances, she admitted others in the house had done so; the DCFS worker could smell alcohol on Holdcraft, who admitted she had been drinking throughout the day. Holdcraft tested positive for methamphetamine, amphetamines, and marijuana; cocaine and drug paraphernalia were discovered in the house; and a marijuana plant was found growing in the laundry room. Holdcraft was arrested on drug charges, and SH was taken into DHS custody due to neglect and parental unfitness. On November 7, 2016, DHS filed a petition for emergency custody and dependency-neglect; an order granting emergency custody was filed on that same day.
On November 14, a probable-cause hearing was held, and the circuit court entered an order finding that based on the stipulation of the parties, there was probable cause to continue custody of SH with DHS. The circuit court found DHS had made reasonable efforts to prevent removal. At the time of the probable-cause hearing, Holdcraft was incarcerated in the Pulaski County jail. On December 19, an adjudication hearing was held, and the circuit court entered an order finding SH was dependent-neglected. The parties stipulated to the finding of dependency-neglect based on parental unfitness, specifically Holdcraft's drug use, which affected her ability to parent SH. The goal of the case continued to be reunification, with a concurrent goal of adoption, and the circuit court found that DHS had made reasonable efforts to provide services and achieve the goal of the case.
On April 24, 2017, a review hearing was held. The circuit court entered an order finding Holdcraft had made substantial progress since the last hearing by completing her psychological examination; attending outpatient therapy as recommended; participating in therapy; testing negative on all drug screens; visiting SH on a consistent basis; and being employed. The circuit court noted Holdcraft was considering divorcing SH's father, David Holdcraft. The goal of the case remained reunification with Holdcraft. DHS was found to have made reasonable efforts to provide services and achieve the goal of the case.
On October 9, a permanency-planning hearing was held. The circuit court entered an order finding Holdcraft had made no measurable progress and was only paying "lip service" to the case plan. Specifically, evidence was presented that Holdcraft had a positive drug screen on September 27, 2017, for methamphetamine and amphetamines, and she had tested positive for alcohol on August 16. Holdcraft had also been arrested on May 31, 2017, in Saline County for driving while intoxicated; she had her sixteen-year-old son in the car with her at that time. She pleaded guilty to DWI and child endangerment and was placed on probation and fined. The circuit court found Holdcraft had not remained sober, and if she wanted to raise SH, she had to make SH a priority over alcohol and drugs. The goal of the case was changed to adoption and termination of parental rights. DHS was found to have made reasonable efforts to provide services.
On December 5, 2017, DHS filed a petition for termination of parental rights; that petition was voluntarily withdrawn on February 12, 2018, and the hearing was instead converted to a review hearing. In the review-hearing order, the court found the goal of the case was tentative reunification with Holdcraft. It was also found that DHS had made reasonable efforts to provide services. While SH remained in DHS custody, the circuit court found Holdcraft's visitation could be expanded if it did not interfere with SH's therapies and school, and Holdcraft could participate in SH's counseling and therapy as recommended. The circuit court further found Albert Popp, Holdcraft's significant other, could attend visitation but was subject to drug-and-alcohol screens.
On May 2, 2018, a permanency-planning order was filed in which the circuit court changed the case goal to adoption and authorized DHS to file a petition to terminate Holdcraft's parental rights. Holdcraft had tested positive for alcohol on February 28 and March 14, 2018; at the March 21 staffing, Holdcraft appeared to be suffering from withdrawals; she entered detox at Baptist Hospital and was discharged March 23; she entered inpatient treatment on March 26; and after she was released, Holdcraft was able to return to work. The circuit court found Holdcraft had continued to drink throughout the case; she lived with Mr. Popp, who also had a history of alcohol abuse but still worked at a liquor store; they abused alcohol together; Holdcraft had lied and cheated her way through the case and merely checked off boxes without any real change; and although Holdcraft had a bond with SH, her bond with alcohol and addiction was stronger.
On May 21, 2018, DHS filed a second petition to terminate Holdcraft's parental rights alleging three bases applicable to her: (1) SH had been adjudicated dependent-neglected and had continued out of Holdcraft's custody for a period of twelve months, and despite a meaningful effort by DHS to correct the conditions causing removal, the conditions had not been remedied ( Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a ) )(Supp. 2017); (2) other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate placement of SH in Holdcraft's custody is contrary to her health, safety, or welfare and that, despite the offer of appropriate family services, Holdcraft had manifested the incapacity or indifference to remedy the subsequent issues or factors or to rehabilitate the circumstances preventing placement of the juvenile in Holdcraft's custody ( Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a ) ); and (3) SH was subjected to aggravated circumstances ( Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a )(3 )(A ) ).
At the termination hearing, Dr. George DeRoeck, a psychologist, testified Holdcraft suffered from substance abuse of methamphetamine, cannabis, and alcohol, and she had an adjustment disorder with mixed disturbance of emotions and conduct. He believed Holdcraft needed more intensive residential treatment, with the possibility of chemical-free living with SH after treatment. It was his opinion Holdcraft needed to enter a ninety-day program after leaving residential treatment.
Mary Moore, a therapist for substance and chemical dependency, testified she had performed Holdcraft's drug-and-alcohol assessment, and the results of Holdcraft's assessment indicated severe amphetamine-use disorder and cannabis-use disorder. She saw Holdcraft nine times for individual therapy, and Holdcraft attended eighteen group sessions, which constituted a successful completion of Holdcraft's course of treatment. Moore did not know why Holdcraft was not recommended for inpatient treatment, but she recalled Holdcraft was not in a position to attend inpatient treatment.
Jessica Warren, a DHS adoption specialist, testified the data-matching tool indicated 167 adoption resources for SH. She believed SH was an adoptable child, and SH's behavioral issues would not be a barrier to adoption. Warren was aware SH and Holdcraft were bonded and SH did not easily bond with others.
Shanesha Arbor, the family-service worker for SH's case, testified the case had been open for approximately twenty months; the major issues in the case were drugs and alcohol; those addictions prevented SH from returning to Holdcraft's custody; and while Holdcraft had periods of sobriety, there were always relapses or positive tests. Arbor acknowledged Holdcraft had received a number of services from DHS, including a psychological evaluation; individual counseling; a drug-and-alcohol assessment; and parenting instruction, and there were no court-ordered services Holdcraft had not completed. However, Arbor believed Holdcraft's parental rights should be terminated despite completing the services because alcohol and drug issues had been present throughout the case. Arbor explained that while Holdcraft had periods of sobriety, she had also tested positive for alcohol, methamphetamine, and amphetamines throughout the case, including shortly after completing outpatient substance-abuse treatment.
Arbor also testified Holdcraft had arrived at the March 21, 2018 staffing with shakes and tremors; Holdcraft said she was having withdrawals; was admitted into a detox program; and entered an inpatient facility. Arbor said while Holdcraft now stated she was sober after completing inpatient treatment, Arbor was still unsure if Holdcraft's addictions were under control because while Holdcraft claimed to be sober during the case, she was lying and hiding her relapses. Arbor noted Holdcraft was arrested for DWI during the same time she was asserting she was sober. Arbor also related that on one occasion, she could smell alcohol on Holdcraft; when she attempted to test Holdcraft, Holdcraft prevented the swab from coming into contact with her saliva; when the test was properly performed, Holdcraft tested positive for alcohol. It was Arbor's opinion Holdcraft was not credible about her sobriety, and Arbor did not believe SH could be safely returned to Holdcraft due to Holdcraft's history and limited period of sobriety. Arbor also expressed concerns about Holdcraft being romantically involved with a man who has his own drug and alcohol issues.
On cross-examination, Arbor admitted Holdcraft's home was clean and appropriate; Holdcraft and Popp had been living together for a period of time without any police intervention; and Holdcraft had maintained her job for a year, had received a raise, and had completed all the services ordered for her. Arbor also noted Holdcraft was participating in SH's counseling, she was learning how to deal with SH's issues and behavior, and SH and Holdcraft had a good relationship.
Holdcraft testified she intended to divorce David Holdcraft but did not know where he was living and was saving money to obtain the divorce. She said her date of sobriety was March 21, 2018; she had a sponsor; she was on the fourth step of her twelve-step program; the inpatient treatment gave her more one-on-one counseling; and the inpatient treatment provided her the tools she needed to live a sober life. She acknowledged her relationship with Albert Popp, and she admitted they were both in recovery. Holdcraft believed it was in SH's best interest for custody to be returned to her.
On cross-examination, Holdcraft stated she had completed two rounds of alcohol-and-drug therapy through Recovery Centers of Arkansas; the inpatient treatment was more intensive than outpatient treatment; and she was attending twelve-step meetings five times a week. After first testifying that she did not recall asking about inpatient treatment after she completed her outpatient services, Holdcraft then stated she remembered inpatient treatment was approved on October 20, 2017, but she declined the inpatient treatment because she did not want to lose her job. She testified the inpatient services worked for her, and she was through with drugs and alcohol; however, she admitted she had lied both to Arbor and to the circuit court during the pendency of her case, noting she had received a DWI with another one of her children in the car with her. Holdcraft explained that if she began drinking she would call her sponsor and have her sister take SH; however, she admitted she had not discussed this plan with her sister. Holdcraft asserted that while she and Popp had a history of using drugs together, she was now sober; she also saw no problem with Popp being employed at a liquor store while attempting to remain sober. She emphasized she had been sober for four months, which was the length of time she had been out of inpatient treatment.
In closing, DHS argued Holdcraft's claims of sobriety could not be believed because she had lied about her sobriety throughout the case, and eleventh-hour efforts were not enough to prevent termination of her parental rights. Holdcraft argued she had been sober for four months; she had a bond with SH, who had difficulty bonding with people; she had a stable home, job, and relationship; and while she had some relapses, she was now ready to take care of SH.
The circuit court terminated her parental rights on all three bases pled by DHS, finding the termination was in SH's best interest. A termination order was entered on August 22, 2018.
Standard of Review
Termination of parental rights is a two-step process requiring a determination that the parent is unfit and that termination is in the best interest of the children. Griffin v. Arkansas Dep't of Human Servs. , 2017 Ark. App. 635, 2017 WL 5762415. The first step requires proof of one or more statutory grounds for termination; the second step, the best-interest analysis, includes consideration of the likelihood that the juveniles will be adopted and of the potential harm caused by returning custody to the parent. Id. Each of these requires proof by clear and convincing evidence, which is the degree of proof that will produce in the finder of fact a firm conviction regarding the allegation sought to be established. Id.
We review termination-of-parental-rights cases de novo, but we will not reverse the circuit court's ruling unless its findings are clearly erroneous. Gonzalez v. Arkansas Dep't of Human Servs. , 2018 Ark. App. 425, 555 S.W.3d 915. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, we have noted that in matters involving the welfare of young children, we will give great weight to the circuit court's personal observations. Id.
Argument
Holdcraft makes no argument regarding any of the grounds relied on by the circuit court for termination. She has therefore abandoned any sufficiency argument pertaining to the statutory grounds used to terminate her parental rights. Holdcraft's sole argument is termination of her parental rights was not in SH's best interest. We disagree.
A best-interest finding must be based on the circuit court's consideration of at least two factors: (1) the likelihood of adoption if parental rights are terminated and (2) the potential harm caused by continuing contact with the parent. Baxter v. Arkansas Dep't of Human Servs. , 2017 Ark. App. 508, 2017 WL 4399676. It is the overall evidence-not proof of each factor-that must demonstrate termination is in the child's best interest. Id.
Adoption specialist Jessica Warren testified at the termination hearing that SH was an adoptable child and there were numerous potential adoption matches; this testimony was unrebutted. Holdcraft makes no argument SH is not adoptable. Her argument focuses on the potential-harm prong. A potential-harm analysis must be conducted in broad terms, with the circuit court considering the harm to the children's health and safety that might occur from continued contact with the parent. Barnes v. Arkansas Dep't of Human Servs. , 2017 Ark. App. 525, 2017 WL 4666814. There is no requirement to find actual harm would result or to identify the potential harm. Id.
Holdcraft readily admits the primary impediment in her case has been her drug addiction, but she points to her new-found sobriety of four months as a testament to her stability, as opposed to an eleventh-hour effort to prevent termination of her parental rights. She faults DHS for her failure to obtain lasting sobriety earlier, arguing DHS failed to ensure she received appropriate services-specifically, inpatient treatment-for her addiction. This is untrue. By Holdcraft's own admission in her testimony at the termination hearing, DHS approved inpatient treatment for her in October 2017-nine months prior to the termination hearing-but she made a conscious decision not to take that opportunity at that time. Therefore, her argument blaming DHS for her late-found sobriety rings hollow. Additionally, DHS was found to have provided appropriate services throughout the pendency of the case. Nevertheless, whether DHS provided or failed to provide a service has no bearing on whether SH would suffer potential harm if returned to Holdcraft, as DHS is not required to provide any services under the potential-harm analysis.
Holdcraft, citing Prows v. Arkansas Department of Human Services , 102 Ark. App. 205, 283 S.W.3d 637 (2008), argues that even though her sobriety was only for a period of four months, the circuit court was required to consider her improvement and weigh it in relation to all the other evidence of improvement. The circuit court did consider Holdcraft's periods of sobriety in making its determination to terminate her parental rights. It is true Holdcraft had stable employment and an appropriate home for SH. However, the case was open for approximately twenty months prior to termination of Holdcraft's parental rights. During that time, Holdcraft had periods of sobriety, but she also had periods during which she lied to the circuit court about her sobriety, she tested positive for alcohol and illegal drugs, and she was even arrested for driving while intoxicated with her teenage son in the vehicle with her. DHS voluntarily withdrew the first termination petition it filed in December 2017 due to her progress in the case, but Holdcraft continued to drink and arrived at a staffing in the throes of withdrawal, necessitating entry into a detox program. In determining potential harm, the circuit court may consider past behavior as a predictor of likely potential harm should the child be returned to the parent's care and custody. Scott v. Arkansas Dep't of Human Servs. , 2018 Ark. App. 347, 552 S.W.3d 463. Holdcraft was unable to maintain her sobriety for an extended period of time, and the circuit court did not find her testimony that she was now sober and would remain so to be credible.
Furthermore, Holdcraft's argument that she was bonded to SH and that SH did not bond well with other people cannot prevent the termination of her parental rights. Even full compliance with the case plan is not determinative; the issue is whether the parent has become a stable, safe parent able to care for his or her child. Id. The circuit court's determination that SH would suffer potential harm if returned to Holdcraft's custody was not clearly erroneous; we affirm the termination of Holdcraft's parental rights.
Affirmed.
Harrison and Klappenbach, JJ., agree.
The parental rights of David Holdcraft, SH's father, were also terminated in this order; however, he is not a party to this appeal. | [
-80,
-18,
-20,
108,
42,
97,
48,
28,
67,
-41,
97,
-13,
-81,
-28,
21,
105,
43,
75,
113,
121,
-45,
-73,
83,
33,
-46,
-13,
56,
-57,
-69,
79,
108,
-36,
94,
112,
-118,
-3,
66,
-64,
-9,
88,
-126,
17,
-117,
105,
83,
-126,
44,
43,
26,
14,
49,
-98,
-42,
46,
25,
-50,
45,
110,
73,
-68,
88,
-32,
-38,
23,
-49,
22,
-95,
52,
-104,
-89,
88,
126,
-100,
48,
9,
-24,
51,
54,
-126,
100,
67,
-39,
-123,
33,
-30,
-93,
28,
-25,
-75,
-120,
-82,
-66,
-99,
-26,
-40,
121,
67,
14,
-74,
-76,
108,
16,
12,
-6,
107,
12,
101,
108,
-124,
-50,
50,
-127,
12,
-127,
84,
35,
-29,
111,
48,
85,
-57,
-94,
84,
-57,
113,
-101,
-50,
-6
] |
DAVID M. GLOVER, Judge
The issue in this case is whether the parties reached a full and complete settlement agreement of their claims. The Faulkner County Circuit Court determined the parties did and entered an order compelling execution of the settlement agreement. On appeal, appellants argue that the court's determination is clearly erroneous, is a misapplication of Arkansas contract law relating to settlement agreements, and should be reversed and remanded. We agree.
I. Litigation History
In 2008, appellant Terra Land Services, Inc. ("Terra"), whose shareholders were Samantha Smith ("Smith") and Jim Tom Bell ("Bell"), entered into a partnership with McVesting, LLC ("McVesting"), whose sole member was Jerry McIntyre ("McIntyre"), to purchase and lease mineral interests. The parties agreed McVesting would own legal title to the property the partnership purchased.
In August 2012, McIntyre informed Terra he no longer recognized Terra's ownership interest in the partnership; Terra sued both McIntyre and McVesting for breach of the partnership agreement. In an amended complaint, Terra alleged McVesting's "Articles of Organization" were amended in September 2008 to add Terra as a member of McVesting (with Terra owning 70% and McIntyre owning 30%); asserted McIntyre had assumed possession of all McVesting's books, records, funds, and other property in contravention of Terra's rights as majority owner; and requested a full accounting and damages for any monetary losses due to McIntyre's actions. In July 2013, the circuit court enjoined McIntyre and McVesting from disposing of any assets in which any of the parties had a beneficial interest. In September 2014, McIntyre and McVesting filed a counterclaim against Terra and a third-party complaint against Smith and Bell individually alleging Terra, Smith, and Bell had breached the partnership agreement with McIntyre and McVesting, had conspired to defraud McIntyre and McVesting, had converted McIntyre and McVesting's property, and had committed fraud.
In the summer of 2016, the circuit court ordered McVesting to execute authorizations to obtain its business records regarding receipt and payment of funds and payment of expenses and ordered McIntyre to provide Terra with any information needed to access McVesting's accounts. The circuit court appointed Tom Dailey as special master and entered a separate order (1) directing McIntyre and McVesting to provide Dailey with McVesting's tax returns and related information since its inception, as well as any written document relating to the organization and governance of McVesting; (2) instructing Terra to make its best effort to obtain all bank records relating to McVesting; and (3) ordering the parties to cooperate with Dailey in obtaining any other necessary information or in having any telephone conferences. The circuit court's order also dissolved McVesting as of August 12, 2016, subject to rescission or modification for good cause shown by either party or Dailey if the circuit court determined a different termination date was proved or agreed to by the parties.
In March 2017, Dailey provided his determinations to the circuit court. In his report, Dailey found McVesting never had an operating agreement; he was unable to value the property (mineral) interests; there was approximately $ 337,225.55 in cash and receivables to be divided; the income and tax-liability allocations between Terra and McIntyre had varied over the years and could not be reconciled in the absence of an operating agreement; and in Dailey's opinion, the only way Terra could establish entitlement to more than 50% of McVesting was to establish McVesting originally had three members and Terra succeeded two of those members.
In October 2017, Terra filed a second amended complaint adding Martha Niece, McVesting's accountant, as a defendant. The second amended complaint alleged that Smith, Bell, and McIntyre formed McVesting in September 2008; that in 2010, Smith and Bell assigned their respective interests in McVesting to Terra; that McVesting's "Articles of Organization" were amended to reflect Terra's interest in McVesting; and that the parties intended Terra's ownership interest in McVesting to reflect and remain the same as that assigned to Terra by Smith and Bell, with Terra owning 70% and McIntyre owning 30%. The second amended complaint also alleged that McIntyre and Niece willfully and fraudulently breached their duties to Terra by making material misrepresentations and omissions; had converted McVesting's funds; had made false representations and concealed material facts with the intent to deceive and mislead Terra; were unjustly enriched at Terra's expense; and knowingly and willfully conspired to deceive Terra and wrongfully take control of McVesting's assets at Terra's expense.
On October 6, 2017, McIntyre and McVesting filed an offer of judgment. The offer of judgment provided Terra and McIntyre would each have a 50% interest in McVesting; the assets and liabilities would be dissolved, with each member receiving a 50% undivided interest in the mineral rights and oil wells and 50% of the cash held in the court registry and in McVesting's bank accounts; each party would have a preferential-purchase right if the other chose to sell its undivided mineral-interest share; Terra would assign its 70% interest back to McVesting; Terra would reimburse McVesting for payments made to Terra by SWN; and McVesting's tax returns would be amended to allocate profits equally between Terra and McVesting. The offer of judgment stated it was unconditional, made to fully and finally resolve all claims asserted by Terra against McVesting, and open and irrevocable for ten days after service on Terra, after which it would be deemed withdrawn. There was no acceptance of this offer of judgment by Terra.
On October 26, 2017, a hearing was held before the circuit court. Terra requested copies of McVesting's income-tax returns from the IRS to compare with those returns McVesting had already produced and bank statements from another company owned by McIntyre to verify McIntyre's funds had not been commingled. McVesting stated all relevant information had been turned over to Terra's prior attorney, and McIntyre had provided Dailey with all authorizations needed. Terra's attorney, Scott Scholl, claimed authorizations had not been given for the tax information. McVesting's attorney, Victoria Leigh, asserted McIntyre had signed releases for the tax returns; she objected to the release of the tax returns for McIntyre's other company or McIntyre's personal tax returns. The circuit court ruled Terra was entitled to access these records but limited the scope of such information by a protective order.
On October 18, 2017, McVesting filed a motion for partial summary judgment, requesting dismissal of all five counts alleged in the second amended complaint, arguing (1) there was no proof from which to conclude McIntyre was grossly negligent or engaged in willful misconduct; (2) Smith and Bell were not members of McVesting and had no standing to pursue claims against McIntyre; and (3) McVesting's assets were to be split equally between McIntyre and Terra. Terra resisted this motion, on the record, responding:
They [Terra] further state in the affirmative that the parties have agreed to certain terms for a full and final settlement of the issues arising herein, and therefore this reply is being filed to ensure that a timely response to the motion for partial summary judgment is filed of record. However, they reserve the right to file an amended reply, a brief in support of their reply, or to present additional arguments and citation to authority at the hearing if, for whatever reason, a party withdraws from the settlement agreement and a motion to enforce settlement is not pursued or granted.
McVesting filed its reply to Terra's response, arguing Terra's response did not purport to meet proof with proof or provide any substantive argument but rather the response was filed as a "placekeeper" in the event a party reneged on the settlement agreement, which Terra verbally indicated an intent to do on November 7, 2017.
Of significance to the factual determination of whether the parties reached a full and complete settlement agreement are the rapid-fire emails, faxes, and telephone calls from October 27 to November 7, 2017, between the parties' separate counsel, contrasted against related electronic communications between appellants' counsel, Scott Scholl, and one of his clients, Samantha Smith, within the same time period.
A. Communications Between Counsel
On November 8, 2017, McVesting, through counsel, Victoria Leigh, filed a motion to enforce settlement. McVesting alleged that on November 2, 2017, the parties came to an agreement resolving all issues and claims after the parties' attorneys negotiated via telephone and emails on October 27, 30, and 31, and November 1 and 2; that at approximately 8:00 p.m. on November 2, the parties' attorneys confirmed via text message a final agreement with the understanding that both the formal settlement agreement and a release would be finalized in the coming days. Terra, in its response to McVesting's motion for summary judgment, also acknowledged the parties' settlement by stating, "They [Terra] further state in the affirmative that the parties have agreed to certain terms for a full and final settlement of the issues arising herein, and therefore their [Terra's] reply is being filed to ensure that a timely response ... is filed of record. However, they [Terra] reserve the right to file an amended reply, ..., or to present additional arguments ... at a hearing if, for whatever reason, a party withdraws from the settlement agreement and a motion to enforce settlement is not pursued or granted." McVesting alleged that on November 7, 2017, Terra's counsel, Scott Scholl, informed McVesting's counsel, Victoria Leigh, that Terra would not honor the settlement agreement absent additional discovery. McVesting attached as exhibits text messages and emails between the attorneys. The text messages between the attorneys indicated that Scholl stated,
Okay, settle for $ 215,000, both sides release any claims or potential claims against the other, you draft the settlement agreement and deeds. Tomorrow I will file a barebones reply to the motion for summary judgment as a cya but reserve the right to file a supplemental brief or further pleadings if for some reason someone pulls out of the agreement and a motion to enforce settlement agreement is not successful.
Leigh replied, "That's fine. Agreement on everything else?" and Scholl texted, "We can do that. We can advise the court of settlement after we have everyone's signature on paper." McVesting also attached emails dated November 7 between Scholl and Leigh in which Scholl stated, "In order to finalize settlement in this matter, please forward the latest bank statements for McVesting as well as the latest revenue/expenditure reports." Leigh replied, "Why? We have a deal at $ 215K based on all disco[very] that has been exchanged. We represented to the court that all disco[very] was complete. This is inappropriate based on the agreement we have. Are your clients reneging?" Leigh then sent Scholl another email later in the afternoon on November 7 asking for insight on Terra's latest request, as Scholl had indicated in phone calls with her they were not disagreeing on the terms of settlement as reflected in the last settlement agreement she sent to him; in her email she said the only purpose of requesting additional documentation was to reopen settlement negotiations; and she asserted McIntyre would not agree to payment of more than $ 215,000, as they had already agreed.
A letter from Dailey to the circuit court dated November 13, 2017, stated Leigh had emailed him on November 3 informing him the matter had been settled and the parties wanted Dailey's assistance in drafting documents to effectuate the settlement and to secure the release of suspended revenue from SWN Energy Company. Dailey asserted that later in the day on November 3, Scholl confirmed the agreement in an email to him but that, beginning on November 7, Smith, through Scholl, requested Dailey obtain additional information from SWN; that there were also further requests Dailey obtain additional information on multiple other wells. Dailey revealed that on November 9, he received a copy of an email Smith sent to the chief counsel and deputy director of the Arkansas Oil and Gas Commission detailing numerous complaints against McVesting and Dailey in this matter. Dailey advised the circuit court he did not intend to take further action in the matter unless directed to do so by the court or unless both parties agreed and requested further action.
A short hearing was held on November 13, 2017. The circuit court declined to rule on the pending summary-judgment motion and allowed Scholl twenty days from the time Leigh filed the motion to enforce settlement agreement to respond before the circuit court stepped in and enforced what had been represented as an agreed settlement with all parts fleshed out and with both attorneys having the authority to bind their clients. The record does not indicate that either Smith or Bell were present for this hearing.
Terra resisted the motion to enforce settlement, arguing there was no meeting of the minds as to all terms of the settlement agreement; therefore, a contract did not exist for the circuit court to enforce. In reply to Terra's response to the motion to enforce settlement, McVesting alleged there was no dispute about any of the terms, essential or otherwise, of the settlement; there were no elements missing in the terms of the settlement agreement, and although Terra alleged there were essential elements of the settlement missing, Terra did not indicate which elements were missing; Terra's counsel possessed actual and apparent authority to engage in settlement negotiations on behalf of Terra and to bind Terra, Smith, and Bell to a final written agreement; the text message clearly and explicitly indicated a full and final settlement; and McVesting stood ready to execute the settlement agreement, but Terra changed its mind and requested to engage in further discovery after all parties represented to the circuit court that all discovery was completed.
On December 14, 2017, the circuit court entered an order granting McVesting's motion to enforce settlement, finding the settlement agreement entered into between the parties was a valid and enforceable settlement agreement, which fully and finally resolved all issues in the matter.
B. Communications Between Scholl and Smith
With new counsel, Terra filed a motion for new trial on December 21, 2017, asserting the parties were still negotiating and had not given their attorney authority to settle the case. Affidavits from Smith and Bell were filed with the motion for new trial, stating they had agreed to negotiate but not to settle the case, and both of them refused to sign a general outline agreeing on final settlement. The affidavits detailed the reasons Smith and Bell refused to sign a general outline agreeing on a final settlement, including the fact that Scholl was told by them that a full disclosure of funds and assets had to be given before a final settlement would be agreed upon and signed. Also attached to the motion for new trial was an October 31, 2017 email from Smith to Scholl stating that Dailey needed to provide "an updated revenue report on all revenue that had been deposited into the suspense report and the expenditures charged to the working wells," as it was impossible to arrive at figures without true numbers. In the email, Smith told Scholl that while Leigh and McIntyre knew the true numbers, she and Bell did not have that information. Also attached to Terra's motion was a copy of the draft settlement agreement, which was unsigned. Likewise, an email sent from Leigh to Scholl on November 3, 2017, at 12:47 p.m. was attached, stating: (1) Leigh would not have the final agreement completed that day but was enclosing a draft; (2) she told Scholl to get in writing from Smith that Smith agreed to the $ 215K; and (3) she had it in writing from McIntyre. Later that day at 1:27 p.m., Scholl sent the draft of the settlement document to Smith. Then, attached were the flurry of emails between Scholl and Smith. At 3:16 p.m., Scholl emailed Smith a copy of the general outline of the settlement agreement and instructed Smith to sign the outline and have Bell also sign the outline. At 4:20 p.m., Smith emailed Scholl informing him Bell was not going to sign the general outline; there was no full disclosure of the money and assets of McVesting; some expenses needed to be assumed by McVesting; and both Smith and Bell questioned what else was being "hidden" from them. At 4:49 p.m., Scholl emailed Smith, telling her the document was a work in progress and the actual settlement agreement probably would not be drafted until the next week; the general outline was a "CYA" to ensure everyone was committed to a settlement "so that nobody is caught with their pants down when someone denies there is a settlement and people are facing motions of going into a 3-day trial not prepared." Scholl also informed Smith he had spoken with Bell and would have a provision added in which McIntyre would be responsible for well expenses. On November 8 at 11:36 a.m., Scholl sent Smith a draft of the settlement agreement in an email, marked as a draft for client review. At 7:05 p.m. that night, Smith emailed Scholl, stating the figures were not current, updated figures were needed, and individual well revenue and expenditures had not been received. Neither Smith nor Bell ever signed a general outline or a settlement agreement.
On January 4, 2018, the circuit court entered an order denying the motion for new trial. Terra filed a timely notice of appeal.
II. Standard of Review
On appeal, a circuit court's findings of fact will not be reversed unless they are clearly erroneous. DaimlerChrysler Corp. v. Smelser , 375 Ark. 216, 289 S.W.3d 466 (2008). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. Disputed facts and determinations of the credibility of witnesses are within the province of the factfinder. Id.
III. Argument and Analysis
The law favors amicable settlement of controversies, and courts have a duty to encourage rather than discourage compromise as a method of resolving conflicting claims. Williams v. Davis , 9 Ark. App. 323, 659 S.W.2d 514 (1983). Nevertheless, a settlement is contractual in nature, and in order to be legally valid, it must possess the essential elements of a contract. Id. The essential elements of a contract are (1) competent parties; (2) subject matter; (3) legal consideration; (4) mutual agreement; and (5) mutual obligation. DaimlerChrysler, supra. A court cannot make the parties' contract, but instead can only construe and enforce that contract the parties have made. Id. There must be a meeting of the minds in order to have a valid contract, using objective indicators; if there is no meeting of the minds, there is no contract. Id. Whether there is a meeting of the minds is a question of fact, and the circuit court's findings of fact will not be reversed on appeal unless they are clearly erroneous. Id.
Terra (which is inclusive of Smith and Bell) argues no full and complete settlement was ever approved or agreed to by them, as they could agree on neither the material terms nor the scope of their contemplated agreement. Terra points out it was still seeking further updated financial information on McVesting, and while Scholl and Leigh might have had "an agreement to agree," Terra had agreed to nothing, including a general outline for the settlement agreement. Terra further asserts that while McVesting represented to the circuit court on October 18, 2017, discovery in the case had already been completed, such could not possibly be true because in a hearing held on October 26, 2017, the circuit court had ordered McIntyre to sign releases for financial information. Terra contends it is "incredulous" to believe Terra had given authority to Scholl, actual or apparent, to settle the case without the tax information that had been ordered to be turned over a few days earlier.
In support of its argument, Terra cites Billingsley v. Benton NWA Props., LLC , 2015 Ark. 291, 2015 WL 3929592. There, the parties reported to the circuit court prior to trial they had reached a settlement. The settlement terms included an agreed amount of damages to be paid by appellee; an agreement appellee would not contest appellants' applications to place fill on their property in the future; appellants would dismiss their claims against appellee with prejudice after the settlement agreement was signed; appellants would withdraw or not submit a proposed revision of the floodway or floodplain to the Federal Emergency Management Administration; and the settlement agreement would have mutual general releases. However, when appellee's counsel emailed a proposed settlement agreement to appellants' counsel, it contained a provision that appellants would release all claims of any kind against appellee, whether known or unknown, that they have had, presently have, or may have in the future. Appellants' counsel objected to the release of claims based on future acts; appellee's counsel refused to remove the language; and appellants refused to agree to release any future claims. Appellee filed a motion to enforce settlement agreement, noting the parties had agreed to a settlement with the exception of the scope of release. The circuit court entered an order to enforce the settlement agreement, finding it effected a release by appellants of all claims against appellee and its successors. Our supreme court reversed, holding it was clear from the record there was no agreement between the parties as to the scope of release.
Here, it is patently clear Smith and Bell made no agreement to settle. Smith was emailing Scholl on October 31 requesting more financial information, and she was adamant that neither she nor Bell would sign a general outline or draft agreement without more financial information. There was never a meeting of the minds on the part of Terra as to the buyout amount. With knowledge of Smith and Bell's wishes, on November 3, Scholl entered into a settlement agreement with Leigh to settle for $ 215,000, at which time both Scholl and Leigh represented to the circuit court and to Dailey that the matter had been settled.
The question then becomes whether Scholl had the authority to bind Terra. The answer to that question is no. "The authority of an agent must be shown by positive proof or by circumstances that would justify the inference that the principal has assented to the acts of his agent." Mack v. Scott , 230 Ark. 510, 513-14, 323 S.W.2d 929, 931-32 (1959). "Apparent authority in an agent is such authority as the principal knowingly permits the agent to assume or which he holds the agent out as possessing, such authority as he appears to have by reason of the actual authority which he has, such authority as a reasonably prudent man, using diligence and discretion, in view of the principal's conduct, would naturally suppose the agent to possess." Id. at 514, 323 S.W.2d at 931-32. Whether an agent is acting within the scope of his actual or apparent authority is a question of fact. Walker v. Stephens , 3 Ark. App. 205, 626 S.W.2d 200 (1981). However, neither agency nor the extent of an agent's authority can be shown by the agent's own declaration in the absence of the party to be affected. Dixie Ins. Co. v. Joe Works Chevrolet, Inc. , 298 Ark. 106, 766 S.W.2d 4 (1989). "An attorney is not permitted to compromise his client's cause of action or judgment without permission." Turner Furnishing Goods Co. v. Snyder , 201 Ark. 699, 146 S.W.2d 913, 914 (1941). In Veasey v. Joshlin , 257 Ark. 422, 423, 516 S.W.2d 596, 596-97 (1974) (citations omitted), our supreme court cited McKenzie v. Boorhem , 117 F.Supp. 433 (1954), "Under Arkansas law, an attorney has no implied authority to enter into a compromise agreement. However, when a client gives his attorney specific authority to enter into a compromise agreement, such an agreement, if entered into by the attorney, is valid and binding." Clearly, Scholl had no actual authority to bind Terra without agreement from Smith and Bell. At least three days prior to Scholl's entering into the agreement with Leigh, Smith was asking for more financial information from McVesting, and she told Scholl it was not possible to make a decision without true numbers. Smith consistently refused to sign any acknowledgement of an agreement of any sort. Scholl knew at least three days prior to entering into the settlement agreement with Leigh that he had no authority to determine a buyout amount at that time. Without specific authority, Scholl could not bind Terra, and the circuit court was clearly erroneous in enforcing the settlement agreement.
Reversed and remanded.
Gladwin and Vaught, JJ., agree.
Bell was a shareholder of Terra when this action was commenced in 2012, but he is no longer a shareholder.
A motion to dismiss the claims against Niece was filed on October 16, 2017, and an order dismissing Niece without prejudice was entered on October 18, 2017. The dismissal of a party to an action, with or without prejudice, is sufficient to obtain finality and invest jurisdiction in an appellate court. Driggers v. Locke , 323 Ark. 63, 913 S.W.2d 269 (1996). Therefore, the dismissal of Niece from the case does not create a finality issue. | [
112,
124,
-27,
-115,
8,
-32,
58,
-102,
71,
-30,
102,
83,
-1,
-18,
24,
19,
-32,
123,
65,
104,
114,
-78,
3,
98,
65,
-45,
-69,
71,
-71,
79,
-4,
-58,
77,
0,
-54,
85,
-58,
-62,
-17,
88,
-86,
1,
-117,
100,
89,
65,
60,
11,
0,
79,
17,
-92,
-14,
41,
53,
75,
73,
46,
127,
57,
73,
-40,
-101,
5,
127,
21,
1,
36,
-102,
67,
88,
26,
-48,
49,
32,
-56,
114,
54,
-106,
116,
73,
-101,
13,
38,
99,
1,
-64,
-17,
56,
-84,
47,
-66,
-115,
-89,
-64,
8,
83,
110,
-97,
-107,
118,
86,
-122,
-10,
-28,
13,
90,
109,
3,
-18,
-42,
-127,
13,
-24,
-100,
3,
-7,
-121,
52,
80,
-51,
-30,
93,
7,
58,
-33,
15,
-15
] |
N. MARK KLAPPENBACH, Judge
Appellant Jeremy Louis Huskey was tried before a Drew County Circuit Court jury and convicted of aggravated residential burglary and manslaughter. Appellant was sentenced to an effective prison term of fifty-five years plus a $ 10,000 fine. On appeal, appellant challenges (1) the sufficiency of the evidence to support that he was the person who committed these crimes; (2) the admission of the deceased victim's statement under the excited-utterance exception to the rule against hearsay; (3) the admission of that statement in violation of appellant's right to confront the witness against him; and (4) the admission of a prior bad act under Rule 404(b). We affirm.
We first consider the sufficiency-of-the-evidence argument. The victim, sixty-seven-year-old George Flowers, was in his residence when someone broke in and beat him severely. George later died from the blunt-force trauma to his head. Appellant challenges whether the State presented sufficient evidence to identify him as the perpetrator.
The standard of appellate review is well settled. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Estrada v. State , 2011 Ark. 3, 376 S.W.3d 395. Substantial evidence is evidence forceful enough to reach a conclusion one way or the other beyond suspicion or conjecture. Smith v. State , 352 Ark. 92, 98 S.W.3d 433 (2003). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State, and only evidence supporting the verdict will be considered. Moore v. State , 355 Ark. 657, 144 S.W.3d 260 (2004). We examine all the evidence including evidence allegedly admitted erroneously. Barron-Gonzalez v. State , 2013 Ark. App. 120, 426 S.W.3d 508. The jury has the sole authority to evaluate the credibility of evidence and to apportion the weight to be given to the evidence. Starling v. State , 2016 Ark. 20, 480 S.W.3d 158.
The evidence in this case is reviewed in the light most favorable to the State. Christy Johnson had allowed George to live with her for about a year, but she wanted him to move. Christy's brother John Etheridge lived in a house about seventy-five yards away from Christy's house. Christy moved to John's house while she waited for George to find somewhere else to live. Christy was dating thirty-eight-year-old appellant, and John had seen appellant drive a small blue car when he came over to visit Christy. John had heard Christy complaining about George to appellant, who told Christy that "if you want him out, I'll get him out." John remembered that appellant had gone over to confront George, during which encounter appellant "b* *ch slapped" George.
About two weeks later, at around 10:30 at night, John saw the same car being driven up the driveway and stopping at Christy's house; the car departed less than ten minutes later. John and his son went outside and saw George on the ground between the two houses; they helped him up and to John's house, where John's mother tended to George's bloody wounds. George had a deep cut on his left elbow; his nose was cut and appeared nearly torn off; he had a head injury behind his left that looked like he had been hit with a tire tool; his bottom lip appeared to be fileted; his hands were torn up. George was upset and crying, and John asked George what happened.
George told John that appellant had come to the door, stormed inside, hit him in the face, knocked him against the entertainment center, caused him to fall on the floor, and kicked him repeatedly. George knew it was appellant because, although his attacker had a shirt wrapped around his face, he recognized appellant's voice; appellant had told George to "get the f* *k out of Christy's house." John called 911 and reported that appellant had beaten up George. Law enforcement officers responded to the call and took pictures of George's injuries, but George refused medical treatment. A sheriff's deputy affirmed that George told him who had assaulted him. A few days later, George's condition deteriorated, he was hospitalized, and he ultimately died. An autopsy revealed all the injuries to George's thin body and the damage to his head. His death was ruled a homicide because he died as a result of blunt-force head trauma.
Christy admitted that she had initially lied to the police, telling them that she and appellant had been at his aunt's house, but in truth, appellant had gone to see George to convince him to move out. Appellant, who had been drinking, came back about fifteen minutes later and told Christy that George "would leave now." She said that appellant wanted to get rid of George so he could move in with Christy. Christy later asked appellant why he had done that to George, and appellant replied, "You wanted him out of your house." Christy said that she initially lied because appellant told her to, and she was afraid of him.
Appellant challenges the State's proof by arguing that there were no witnesses to the attack, there was no DNA to connect him to the attack, and the victim identified appellant only by his voice and not by his face. This argument is unpersuasive. The victim positively identified appellant as the man who had severely beat him, and appellant admitted to Christy that he had attacked George to get him to move. We consider only the evidence that supports the verdict, and credibility findings are for the jury to make. We hold that there is substantial evidence to support the jury's finding that appellant was guilty of aggravated residential burglary and manslaughter.
The remaining three points on appeal challenge the admission of certain testimony. On appellate review of evidentiary rulings, we recognize that a circuit court has broad discretion, and we will not reverse an evidentiary ruling absent an abuse of discretion. Hopkins v. State , 2017 Ark. App. 273, 522 S.W.3d 142. Abuse of discretion is a high threshold that does not simply require error in the circuit court's decision but requires that the circuit court act improvidently, thoughtlessly, or without due consideration. Owens v. State , 2017 Ark. App. 109, 515 S.W.3d 625. In addition, we will not reverse absent a showing of prejudice, as prejudice is not presumed. Edison v. State , 2015 Ark. 376, 472 S.W.3d 474.
Appellant first challenges the circuit court's finding that George's statement to John identifying appellant as the perpetrator fell within the excited-utterance exception to the rule against hearsay. Arkansas Rule of Evidence 803(2) provides that an "excited utterance" is a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Factors to consider are the lapse of time, the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement. Wright v. State , 368 Ark. 629, 249 S.W.3d 133 (2007). For the exception to apply, there must be an event that excites the declarant. Id. It must appear that the declarant's condition at the time was such that the statement was spontaneous, excited, or impulsive rather than the product of reflection and deliberation. Id. The statements must be uttered during the period of excitement and must express the declarant's reaction to the event. Id. It is for the circuit court to determine whether the statement was made under the stress of excitement. Id. The thrust of appellant's argument is that George's statement was not spontaneous, excited, or impulsive but was rather an answer to John's direct question. Appellant has not demonstrated an abuse of the circuit court's discretion.
Minutes after George, a sixty-seven-year-old man, had been severely beaten, he was upset and crying, lying on the ground, bleeding, trying to reach his neighbor's house. George required physical assistance to get up and move. When asked what happened, George immediately reported what appellant had done to him and why he knew it was appellant. Whether a declarant makes statements in response to questions is not dispositive of whether they are the product of the exciting event. Bates v. State , 2017 Ark. App. 123, 516 S.W.3d 275. The relevant inquiry is whether the statement was made under the stress of excitement or was made after the declarant had calmed down and had an opportunity to reflect, which is a matter within the circuit court's sound discretion. Id. Admissibility is not to be measured by any precise number of minutes, hours, or days but requires that the declarant is still under the stress and excitement caused by the event. Id. We hold that George's statement identifying appellant as his attacker is precisely the kind of excited utterance contemplated by Rule 803(2). The circuit court, therefore, did not abuse its discretion on this evidentiary ruling.
Appellant next contends that the circuit court abused its discretion in permitting George's statements to John to be relayed to the jury because he was deprived of his constitutional right to confront this witness against him. Appellant fails to persuade. The circuit court did not address the confrontation-clause argument, and defense counsel did not request a ruling on that aspect of his argument. Because appellant failed to obtain a ruling on this argument, it is not preserved for appellate review. See Bertrand v. State , 363 Ark. 422, 214 S.W.3d 822 (2005). Even if the confrontation clause had been violated in this instance, which we do not decide, any such alleged error would be harmless beyond a reasonable doubt because George's statements were cumulative to other testimony and evidence before this jury. Evidence that is merely cumulative or repetitious of other evidence admitted without objection cannot be prejudicial.
Edison v. State , 2015 Ark. 376, 472 S.W.3d 474. Christy testified to appellant's admission that he had attacked George; the photographs and autopsy report substantiated the severity of George's extensive injuries; a deputy also confirmed that George identified appellant as his attacker. Thus, George's statements were merely cumulative and cannot support reversal.
Lastly, appellant contends that the circuit court abused its discretion in permitting John to testify about appellant "b* *ch slapp[ing]" George a couple of weeks prior to the attack. He asserts that this testimony was impermissible under Arkansas Rule of Evidence 404(b). This rule provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith, but it may admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Alternatively, he argues that pursuant to Rule 403, any probative value of the testimony was substantially outweighed by the danger of unfair prejudice or confusion of the issues. In sum, appellant argues that the slapping incident was too dissimilar to the subsequent attack to be relevant here and was used only to portray appellant as a bad person, resulting in unfair prejudice. Appellant has not demonstrated an abuse of discretion.
Any evidence that is relevant to explain the act, show a motive, or illustrate the accused's state of mind may be independently relevant and admissible. Lard v. State , 2014 Ark. 1, 431 S.W.3d 249. The theory of this case was that appellant wanted to move in with Christy and that he took extreme measures to get George to move out. The State alleged that appellant first intimidated and slapped George, and when that did not work, appellant more viciously attacked George. Appellant's defense rested on his assertion that the State could not prove that he was the person who attacked George. This testimony about slapping George was relevant and probative to support the State's evidence that appellant had the motive to commit the crimes and that he was, in fact, the perpetrator. The circuit court did not abuse its wide discretion in finding this to be admissible and finding its probative value not to be outweighed by unfair prejudice. See Turner v. State , 2018 Ark. App. 5, 538 S.W.3d 227.
Affirmed.
Harrison and Glover, JJ., agree. | [
113,
-18,
-19,
-67,
40,
96,
58,
56,
96,
-93,
112,
-13,
45,
-64,
5,
123,
-74,
63,
85,
112,
-59,
-105,
39,
67,
-70,
-77,
-69,
-47,
115,
75,
-12,
-4,
13,
-16,
-22,
-43,
70,
106,
-89,
88,
-114,
-120,
-87,
80,
91,
80,
38,
127,
112,
7,
-11,
-106,
-17,
43,
30,
-49,
-55,
44,
91,
-81,
74,
-103,
-118,
-121,
-33,
20,
-77,
-108,
-66,
6,
88,
46,
28,
53,
1,
-24,
114,
-106,
-122,
-12,
79,
-101,
12,
98,
98,
1,
24,
-123,
44,
-103,
47,
118,
-103,
-90,
-104,
105,
73,
45,
-105,
-1,
124,
20,
14,
-6,
-11,
92,
89,
108,
-93,
-121,
-110,
-109,
29,
32,
22,
-6,
-13,
-91,
20,
113,
-52,
-30,
92,
101,
80,
-37,
-38,
-110
] |
ROBERT J. GLADWIN, Judge
Juanita Noble appeals the Sebastian County Circuit Court's April 18, 2018 order appointing administrator of the estate of Earl Leon Neal (decedent). On appeal, she argues that the circuit court erroneously recognized appellee Earl L. Neal, Jr., as decedent's sole heir. We affirm.
I. Facts
On October 17, 2017, Clyde A. Neal filed a petition for administration of the estate of decedent-Juanita and Clyde's brother, who died on September 16, 2017. Listed in the petition as heirs of decedent were four sisters, including Juanita; Clyde; two nieces; and a nephew. On November 9, 2017, Earl L. Neal, Jr. ("Butch"), filed a response alleging that he was decedent's illegitimate son and only child. He cited Arkansas Code Annotated section 28-9-209(d) (Repl. 2012) and claimed that decedent had made a written acknowledgment of him in the form of the Whirlpool Corporation "Beneficiary Designation-Retirement Death Benefit," dated July 1, 2016 thus allowing him to inherit from decedent's estate. He alleged that the designation, which was attached to his response, was prepared by decedent, completed and signed by him, and describes Butch by name, Social Security number, relationship as "son," address, phone number, birth date, and gender. Butch also filed an affidavit to claim against the estate on November 9, asserting that as decedent's only child, he is entitled to inherit all of decedent's real and personal property.
On March 20, 2018, Butch filed a brief in support of his claim against the estate, and on April 18, Juanita filed her objection. She argued that pursuant to section 28-9-209(d), Butch had 180 days from the date of decedent's death to commence and conclude his claim. She relied on Bell v. McDonald , 2014 Ark. 75, 432 S.W.3d 18, which she argued stands for the proposition that within the allotted 180 days, not only must the claim be filed but must also be judicially determined within said 180 days. Juanita also disputed that the beneficiary-designation form was a "written acknowledgment" in terms of the statute because it was not witnessed, notarized, or "acknowledged."
At the hearing on the competing claims, Juanita testified that she and decedent were five years apart in age and were close, having grown up together. She said that she was not aware of any children of decedent and had seen Butch only once in her lifetime, at decedent's funeral. Clyde testified that he too had been close to decedent and had daily communication with him for fifteen years prior to his death. He said he had seen Butch three times-one time being at the funeral.
Butch testified that he is fifty years old and had lived in Texarkana, Arkansas, for the last forty years. He said that his birth certificate lists decedent as his father, but it was not signed by decedent. He said that the beneficiary-designation form from Whirlpool displays his Social Security number and correct date of birth. He said that at no time did he believe someone other than decedent was his father. He said that he was twenty-two years old when he first met decedent in 1990, and he had been in touch with him occasionally since that time.
On April 18, 2018, the circuit court appointed Butch as administrator of decedent's estate, finding that he was decedent's illegitimate son under the requirements of section 28-9-209(d)(2), having asserted a claim against the estate within 180 days and met the condition requiring a written acknowledgment stating that decedent is Butch's father. The circuit court found that Butch was the sole heir and entitled to the entirety of decedent's estate. This appeal timely followed.
II. Applicable Law
Although we review probate proceedings de novo, we do not reverse the circuit court's findings unless they are clearly erroneous. Burns v. Estate of Cole , 364 Ark. 280, 219 S.W.3d 134 (2005). We also review issues of statutory interpretation de novo and are not bound by the circuit court's interpretation of a statute. Id. However, in the absence of a showing that the circuit court erred, its interpretation will be accepted as correct on appeal. Id.
Arkansas Code Annotated section 28-9-209(d) provides:
An illegitimate child or his or her descendants may inherit real or personal property in the same manner as a legitimate child from the child's mother or her blood kindred. The child may inherit real or personal property from his or her father or from his or her father's blood kindred, provided that at least one (1) of the following conditions is satisfied and an action is commenced or claim asserted against the estate of the father in a court of competent jurisdiction within one hundred eighty (180) days of the death of the father:
(1) A court of competent jurisdiction has established the paternity of the child or has determined the legitimacy of the child pursuant to subsection (a), (b), or (c) of this section;
(2) The man has made a written acknowledgment that he is the father of the child;
(3) The man's name appears with his written consent on the birth certificate as the father of the child;
(4) The mother and father intermarry prior to the birth of the child;
(5) The mother and putative father attempted to marry each other prior to the birth of the child by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid; or
(6) The putative father is obligated to support the child under a written voluntary promise or by court order.
In analyzing this statute, our court held:
This statute creates a right unknown at common law, and the right is created for only the 180 days, i.e., the 180-day period is a condition qualifying the right of action, and not a mere limitation on the remedy. Boatman v. Dawkins , 294 Ark. 421, 743 S.W.2d 800 (1988). As the United States Supreme Court said in Walsh v. Mayer , 111 U.S. 31, 37, 4 S.Ct. 260, 28 L.Ed. 338 (1884), "[t]he provisions requiring it to be asserted in a particular mode and within a fixed time, are conditions and qualifications attached to the right itself, and do not form a part of the law of the remedy. If it is not asserted within the permitted period, it ceases to exist and cannot be claimed or enforced in any form."
Rasberry v. Ivory , 67 Ark. App. 227, 229-30, 998 S.W.2d 431, 433 (1999). More recently, our supreme court stated:
[T]his court has previously interpreted section 28-9-209(d) as requiring that at least one of the conditions listed in the subsection be satisfied within the 180-day time period. See Burns , supra. In Burns , an illegitimate child filed a petition for appointment of administrator of his putative father's estate. While this petition was filed within 180 days, this court held that the petition did not constitute an action commenced or claim asserted against the estate because he had never been determined a legitimate heir of the decedent. Id. at 284, 219 S.W.3d at 137. We also addressed Burns's second point on appeal, which was virtually identical to appellant's argument in this case, that he was not required to satisfy one of the six conditions set out in section 28-9-209(d) within 180 days. Id. We rejected Burns's argument, stating that the plain language of the statute indicated that both requirements, the filing of the claim and the satisfaction of one of the conditions, must be satisfied within the 180-day time frame. Id. at 285, 219 S.W.3d at 138.
Bell , 2014 Ark. 75, at 6-7, 432 S.W.3d at 22.
III. Argument
Juanita contends that the circuit court was clearly erroneous in recognizing Butch as the sole heir of decedent's estate. She admits that Butch made a claim against the estate within 180 days of decedent's death. However, she argues that the claim of heirship was not concluded or established within the required 180 days. She alleges that six months from the date of death, September 16, 2017, was March 16, 2018, which is before the circuit court's April 18, 2018 order. She contends that one of the six requirements under Arkansas Code Annotated section 28-9-209 for establishing paternity must have occurred within 180 days of decedent's death. She argues that Bell stands for the proposition that within the allotted 180 days, a claim must be filed and judicially determined. She claims that under Boatman , supra , an illegitimate child must start and conclude a paternity action within 180 days of the putative father's death. Thus, she argues that Butch did not satisfy the requirements of the statute.
She contends that the beneficiary-designation form does not fulfill the requirements of subsection 209(d)(2). She asserts that the form is a copy and that the signature is not witnessed, notarized, or acknowledged. She argues that the statute relied upon requires a "written acknowledgement." She urges that in Defir v. Reed , 103 Ark. App. 319, 288 S.W.3d 711 (2008), the putative child provided the lower court with a written acknowledgement in the form of a deed, which clearly contained an acknowledgement in the presence of a notary.
She then relies on Burns , supra , Rasberry , supra , and Boatman , supra , for the proposition that Arkansas Code Annotated section 28-9-209(d) creates a new right, and the right is created for only 180 days. She contends, therefore, that Butch's claim expired 180 days following the death of decedent, and he was no longer entitled to pursue his claim of heirship.
Butch argues that the circuit court was not clearly erroneous in determining that he is the sole heir because he made a valid claim against the decedent's estate within 180 days of death and provided a written acknowledgment in satisfaction of subsection 209(d)(2). We agree. Butch relies on Defir , 103 Ark. App. at 320-21, 288 S.W.3d at 711-13, wherein
Langdon died intestate on May 24, 2001.... On April 11, 2005, Reed filed a petition to quiet title in the land purportedly conveyed by that deed. She asserted that she was Langdon's "sole heir" and that the deed was a forgery....
We believe that the trial court clearly erred in finding that Reed was Langdon's heir. That legal status depended on her satisfying the requirements of Arkansas Code Annotated section 28-9-209, which she clearly did not do. The 1998 deed whereby Langdon conveyed twenty acres of land to Reed for "the love and affection I have for my daughter, Verna Langdon Reed," may have, at best, arguably satisfied the requirement under the statute that Langdon make "a written acknowledgment that he is the father of the child." However, there is no dispute that Reed failed to commence an action or assert a claim against Langdon's estate within 180 days of his death. Accordingly, she cannot inherit property from Langdon through intestate succession, and consequently, her claim to the disputed real estate is unsubstantiated.
In Defir , even though this court found that the illegitimate child's claim failed because she had not filed her claim within 180 days of the death of the decedent, we noted that the deed acknowledged the child by stating, "the love and affection I have for my daughter," and stated that the language "may have, at best, arguably satisfied the requirement under the statute[.]" Id.
Here, the beneficiary-designation form depicts that decedent clearly wrote "son" in the space labeled "Relationship to Employee." He also provided Butch's proper name, Social Security number, date of birth, address, phone number, and gender on the form. This designation was meant to be relied and acted on by Whirlpool. Butch argues that decedent acknowledged, under the ordinary meaning of the word, that he was decedent's son. See Merriam-Webster Learner's Dictionary (2018) ("acknowledgment" is the action of showing that you know, admit, or accept that something exists or is true). Accordingly, the circuit court was not clearly erroneous in ruling that he satisfied the written-acknowledgment condition under subsection 209(d)(2).
Further, the 180-day limit was satisfied by the beneficiary-designation form because the form was completed prior to decedent's death:
[W]e find under a plain reading of the language in the statute that one of the six conditions must have been satisfied and an action commenced or a claim asserted against the estate prior to the expiration of the 180-day time period. We note that five out of the six statutory conditions may only be satisfied prior to the putative father's death and that the remaining condition found in subsection (d)(1), on which appellant relies, uses the past tense and states that "[a] court of competent jurisdiction has established the paternity of the child...." Ark. Code Ann. § 28-9-209(d)(1) (Repl. 2012) (emphasis added).
Bell , 2014 Ark. 75, at 7, 432 S.W.3d at 22. Accordingly, the requirement contained in subsection (d)(1), a court's establishment of paternity, is the particular statutory condition that must be met within 180 days following decedent's death. As stated in Bell , a decedent's acknowledgment, as found herein, must have been accomplished prior to the decedent's death, allowing an illegitimate child 180 days following a putative father's death to make a claim based on the decedent's written acknowledgment.
Affirmed.
Glover and Vaught, JJ., agree.
The petition was later amended to substitute Juanita for Clyde as the proposed administrator. | [
-12,
108,
-19,
28,
-120,
-32,
26,
40,
67,
-61,
99,
83,
-17,
-38,
16,
127,
-13,
75,
117,
123,
-30,
-77,
19,
96,
90,
-13,
-21,
-41,
51,
73,
-9,
-10,
9,
32,
-86,
-43,
70,
2,
-19,
-48,
-122,
3,
9,
109,
-55,
65,
54,
-31,
20,
77,
53,
-82,
-11,
43,
57,
74,
104,
110,
121,
58,
72,
-104,
-118,
5,
-18,
23,
49,
-123,
-101,
-127,
72,
10,
-112,
49,
0,
-24,
51,
-74,
-122,
116,
75,
25,
8,
118,
-14,
16,
29,
-9,
-96,
-118,
-121,
110,
-99,
-89,
-102,
57,
75,
109,
-106,
29,
123,
-44,
3,
-4,
-26,
-60,
76,
108,
-96,
-50,
-42,
-95,
4,
-56,
-100,
3,
-29,
71,
112,
113,
-35,
-62,
85,
70,
53,
-101,
-121,
-16
] |
N. MARK KLAPPENBACH, Judge
Appellant Lesley Bridges appeals the June 20, 2018 order of the Saline County Circuit Court that terminated her parental rights to her three-year-old son, LL. Bridges does not challenge the circuit court's finding that there were statutory grounds on which to terminate her parental rights. On appeal, Bridges challenges the circuit court's finding that termination of her parental rights is in LL's best interest, specifically contesting that there was potential harm to LL if returned to his mother's custody. Bridges asserts that the circuit court clearly erred and that the termination order must be reversed. We affirm.
We review termination-of-parental-rights orders de novo but will not reverse the circuit court's findings of fact unless they are clearly erroneous. Harjo v. Ark. Dep't of Human Servs. , 2018 Ark. App. 268, 548 S.W.3d 865. A finding is clearly erroneous when, although there is evidence to support it, the appellate court is left on the entire evidence with the firm conviction that a mistake has been committed. Id. We must also defer to the superior position of the circuit court to weigh the credibility of the witnesses. Ewasiuk v. Ark. Dep't of Human Servs. , 2018 Ark. App. 59, 540 S.W.3d 318. On appellate review, this court gives a high degree of deference to the circuit court, which is in a far superior position to observe the parties before it. Id. Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id.
Pursuant to Arkansas Code Annotated section 9-27-341(b)(3) (Repl. 2017), an order forever terminating parental rights shall be based on a finding by clear and convincing evidence that it is in the best interest of the juvenile, including consideration of the likelihood that the juvenile will be adopted if the termination petition is granted and the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. The order must also find by clear and convincing evidence one or more grounds. Ark. Code Ann. § 9-27-341(b)(3)(B).
The purpose of the termination-of-parental-rights statute, Ark. Code Ann. § 9-27-341(a)(3), is to provide permanency in a juvenile's life in all instances in which the return of a juvenile to the family home is contrary to the juvenile's health, safety, or welfare, and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time, as viewed from the juvenile's perspective. Even full compliance with the case plan is not determinative; the issue is whether the parent has become a stable, safe parent able to care for his or her child. Blasingame v. Ark. Dep't of Human Servs. , 2018 Ark. App. 71, 542 S.W.3d 873. A parent's past behavior is often a good indicator of future behavior. Ewasiuk , supra .
In this case, the circuit court found that there were multiple statutory grounds on which to terminate the mother's parental rights. Appellant does not contest the sufficiency of the evidence of statutory grounds. The circuit court also found that it was in LL's best interest to terminate parental rights. Under the umbrella of the child's best interest, the circuit court specifically considered that LL was "highly adoptable" with hundreds of families interested in adopting LL or a child sharing his characteristics. Appellant does not contest whether there was sufficient consideration of LL's adoptability.
The other factor that must be considered when deciding what is in the child's best interest is whether the child would be subjected to potential harm if returned to his parents. Appellant asserts on appeal that the circuit court clearly erred in its best-interest finding because of a lack of potential harm to LL if returned to his mother. In sum, appellant contends that she complied with the case-plan requirements, that she had appropriately cared for her son during unsupervised visitations, that she eventually admitted she needed drug treatment, and that she was doing well ever since she embraced treatment and sobriety. We disagree that she has demonstrated clear error in the circuit court's best-interest finding.
A more amplified recitation of the evidence is necessary to explain our decision. In November 2016, the Department of Human Services (DHS) sought emergency custody of LL, who was then eighteen months old, based on severe injuries that his two-month-old sibling JL had suffered. Appellant took JL to the emergency room, but this was apparently several hours after JL had been injured. The history of injury did not match JL's conditions, so DHS was notified. JL died from his extensive brain injuries. The father was arrested, ultimately convicted of murder, and sentenced to prison.
In March 2017, appellant stipulated that LL was dependent-neglected, in part due to the delay in seeking medical treatment for JL. Appellant was given a case plan and ordered to complete certain services. In June 2017, appellant was deemed compliant with her case plan, having maintained stable housing and employment, having participated in counseling, and having had successful unsupervised visitation. After a review hearing in September 2017, the circuit court found that appellant had continued her pattern of compliance with the case plan.
A permanency-planning hearing was conducted in November 2017. At that time, the circuit court was encouraged by appellant's compliance but remained concerned about her emotional stability, which affected her ability to properly protect LL from harm. Appellant's visitation was ordered to be gradually increased if recommended by her therapists.
In February 2018, a fifteen-month permanency-planning hearing was conducted. At that point, appellant was no longer diligently working toward reunification. Appellant had lost a job, and she had tested positive for methamphetamine. Appellant admitted that she had been hiding her use of methamphetamine over the previous year. The circuit court noted that appellant attended only two domestic-violence support-group meetings and that domestic violence had brought LL into DHS's custody. The circuit court changed the goal of this case to termination of parental rights and adoption.
DHS filed a petition to terminate alleging in part that LL's best interest would be served if termination was granted because appellant continued to use drugs and that drug use affected her ability to safely parent her son. The termination hearing was conducted in May 2018, eighteen months after LL had come into DHS's custody.
The evidence showed that a caseworker became concerned about appellant in October 2017 because of appellant's recent rapid weight loss and sores on her face. The caseworker visited appellant's home in early 2018, but the home was in disarray and not environmentally appropriate, so LL's visit was cancelled. The caseworker described appellant as nervous and emotional, and she said that appellant spilled the cup of urine that was supposed to be used for a drug test. Appellant submitted to a hair-follicle test that was positive for methamphetamine. Appellant was referred for drug treatment in February 2018, but she was discharged for noncompliance in March 2018. Appellant restarted treatment in April 2018, and at that time she was given a urine drug test that was positive for methamphetamine. Thereafter, appellant began to work the drug-treatment protocol.
Appellant testified at the termination hearing and admitted that she had been using drugs intermittently, meaning several times a month, since March 2017, but she thought she could stop on her own and she was too ashamed to admit it to DHS until March 2018. She claimed that she never used while LL was with her nor would she ever do that, and she said that she had absolutely benefitted from all the other therapies she had attended. Appellant's sponsor was supportive of appellant, testifying that appellant had worked the initial sobriety steps and had been very diligent in her efforts to be sober for the last three months. Appellant's counselor, who had treated appellant for more than a year, believed that appellant had been "super engaged" with her individual therapy and had made great strides in her parenting skills. Appellant's caseworker believed that termination of parental rights was proper because appellant had been so deceitful and had achieved only short-term sobriety.
The circuit court rendered its decision from the bench. The circuit court remarked that appellant was a thirty-seven-year-old intelligent woman who was to be commended for her attempts to address her addiction problem "in the last month or so." The circuit court nonetheless weighed this against LL's having been in foster care for so long, LL's need for permanency, and the detriment of further delay. The circuit court stated that it was unconvinced that it could rely on appellant's recent sobriety to continue, that her deceptive behavior was stopped only because she was about to be caught and not because she was ashamed of her drug use, that she had put her own interests before her son's for more than a year, and that it was "clearly" in LL's best interest to grant the petition to terminate her parental rights.
An order was subsequently filed to memorialize all the circuit court's findings relative to the termination of appellant's parental rights. Concerning "potential harm," the circuit court found that LL's father had murdered LL's infant sibling; that appellant did not appropriately address the issues of domestic violence; that appellant had a serious drug-abuse issue that she intentionally hid; and that appellant's recent sobriety was undercut by her "many months of deceit." The circuit court concluded that LL had been in foster care for well beyond a year and that three more months to work on sobriety was not warranted in this case. This timely appeal followed.
Appellant argues on appeal that the evidence was wholly insufficient to support the court's findings on potential harm, even considering the late discovery of appellant's drug use, and that, at a minimum, she should have been given three more months to firmly establish her sobriety. She argues that she actively participated in all the services offered to her, she improved greatly, she worked and had a suitable home, and she had taken care of LL during her unsupervised visits without incident. We disagree that appellant has demonstrated reversible error.
In considering potential harm caused by returning the child to the parent, the circuit court is not required to find that actual harm would result or affirmatively identify a potential harm. Gulley v. Ark. Dep't of Human Servs. , 2016 Ark. App. 367, 498 S.W.3d 754. Potential harm must be viewed in a forward-looking manner and in broad terms, including the harm the child suffers from the lack of stability the child receives in a permanent home. Jackson v. Ark. Dep't of Human Servs. , 2016 Ark. App. 440, 503 S.W.3d 122. The risk for potential harm is but one factor for the court to consider in its best-interest analysis. Abdi v. Ark. Dep't of Human Servs. , 2018 Ark. App. 173, 544 S.W.3d 603. This court has consistently noted that continuing drug use demonstrates potential harm to children. Jackson , supra . Moreover, credibility determinations are for the circuit court to make, not this court. Id.
In this case, the circuit court was unconvinced that appellant had made significant material progress toward lasting sobriety. See Hollinger v. Ark. Dep't of Human Servs. , 2017 Ark. App. 458, 529 S.W.3d 242. The circuit court was not required to, and did not, believe appellant's self-serving testimony that she deceived DHS about her drug use only because she was ashamed. Past actions of a parent over a meaningful period of time are good indicators of what the future may hold. Sharks v. Ark. Dep't of Human Servs. , 2016 Ark. App. 435, 502 S.W.3d 569. The circuit court considered appellant's newfound efforts toward being drug free and applauded her efforts in that regard, yet this simply did not outweigh LL's need for permanency after eighteen months in foster care. Appellant apparently started using drugs after DHS had begun providing reunification services to her. Appellant's drug use continued throughout the remainder of this DHS case, and she tested positive for methamphetamine in April 2018, one month before the termination hearing. While the circuit court was certainly not required to terminate parental rights eighteen months into this case, the circuit court was likewise not required to extend the case three more months. We are not left with a distinct and firm impression that the circuit court made a mistake in its findings on LL's best interest. We therefore affirm the termination of appellant's parental rights.
Affirmed.
Virden and Whiteaker, JJ., agree. | [
-48,
-18,
-12,
124,
42,
97,
91,
10,
82,
-117,
111,
-13,
-85,
-62,
20,
107,
-113,
-53,
97,
113,
-45,
-73,
87,
97,
84,
-14,
-13,
-62,
-77,
89,
100,
-36,
72,
112,
-118,
85,
70,
-63,
-57,
-48,
-114,
3,
11,
-7,
73,
-59,
60,
59,
16,
6,
49,
-66,
-69,
47,
24,
-62,
-84,
78,
95,
-71,
88,
-78,
-101,
7,
95,
23,
-79,
4,
-102,
-124,
72,
-73,
-100,
56,
-127,
-4,
115,
54,
-114,
116,
75,
89,
-120,
112,
-17,
-126,
8,
-25,
-71,
8,
-18,
-68,
-99,
-90,
-104,
121,
3,
7,
-73,
-76,
76,
4,
15,
-2,
98,
-113,
87,
108,
0,
-117,
80,
-127,
28,
8,
20,
19,
-29,
99,
49,
117,
-37,
-12,
84,
-61,
51,
-101,
-2,
-74
] |
RITA W. GRUBER, Chief Judge
This case returns to us after we ordered rebriefing. Lewis v. State , 2018 Ark. App. 433, 2018 WL 4610802. Ronald Lewis was found guilty by a Benton County Circuit Court jury of one count of rape and two counts of second-degree sexual assault for sexual misconduct with two minor boys. The jury sentenced him to forty years' imprisonment for the rape and five years' imprisonment for each count of sexual assault, to be served consecutively to each other and to the rape conviction. Lewis does not challenge the sufficiency of the evidence but brings two points on appeal challenging the testimony of one witness, Det. Travis Monson. Lewis argues that Detective Monson's testimony regarding appellant's right to remain silent violated his right against self-incrimination and his testimony by remote video violated appellant's right to confrontation. We hold that there is no error requiring reversal, and we affirm his convictions.
Because appellant does not challenge the sufficiency of the evidence, only a brief recitation of the facts is necessary. Appellant was close friends with Shannon and Tim Barnhart, parents of CB, one of the victims in this case. The Barnharts considered appellant, and appellant considered himself, to be a surrogate grandfather to CB. The second victim, BD, was CB's best friend. Appellant lived in Missouri, but he performed construction work for Tim Barnhart in and around Springdale, Arkansas, where the Barnharts lived.
Sometime in 2013, appellant discovered that CB, who was around nine or ten years old at the time, played baseball, and appellant told the Barnharts that he would like to come see the games. Shortly thereafter, appellant began attending CB's games and later started spending the night with the Barnharts when there were early morning games or weekend-long tournaments, at first on the living room couch and later on a mattress on the floor in CB's room. CB and appellant began spending more and more time together fishing, bowling, miniature golfing, and pursuing other similar sporting activities. This went on for several years, and appellant continued to spend more and more nights in the Barnharts' home. Sometime in 2015, CB's brothers moved out of the house, and CB moved into the vacated room. Appellant, who by then spent most nights at the Barnharts' home, stayed in CB's old room. In the summer of 2016, the Barnharts noticed that CB's attitude toward appellant had changed. They testified that he did not want to be around appellant; he did not want to sit by him; and he no longer laughed at his jokes. When the Barnharts questioned him, CB initially denied that appellant had ever touched him inappropriately; however, that summer he eventually admitted to them that appellant had touched him inappropriately.
CB later disclosed in an interview with a Springdale Police Department detective that he had known appellant for several years, trusted him, and considered him a "best friend." He described the incidents of sexual abuse to the Arkansas State Police child investigator and to the detective. CB also told the detective that BD had spent the night and that appellant had also touched BD inappropriately. BD admitted to the investigator and to the detective that appellant had touched him inappropriately. After a trial at which both of CB's parents, CB's uncle, BD's mother, two detectives, CB, BD, and appellant testified, a jury convicted appellant of one count of rape and two counts of second-degree sexual assault. Appellant filed this appeal.
I. Fifth Amendment Right
For his first point on appeal, appellant contends that his Fifth Amendment right against self-incrimination was violated by Detective Monson's comments during the detective's testimony on appellant's silence. The State had sought and obtained a search warrant to search appellant's phone for data, including text messages, photos, emails, files, internet history, and other information. Detective Monson performed the data extraction on appellant's phone. As this raises an issue of constitutional interpretation, our review is de novo. Swain v. State , 2015 Ark. 132, at 5, 459 S.W.3d 283, 285.
At trial, Detective Monson testified that he is a forensic officer with the Springdale Police Department and was assigned to the Internet Crimes Against Children Task Force in Fayetteville. He said that his primary function was to do forensic examinations and reports on cell phones, computers, and other digital devices from which data could be extracted. He then explained the three methods he used in extracting the information-including a logical extraction, a file-system extraction, and a physical extraction-depending on the phone's make, model, and software. He testified that he had performed an "advanced logical" on appellant's iPhone and was able to retrieve some videos and photos but no text messages. He testified that once the report was completed, it prompted for the "encryption passcode." At that point, defense counsel asked to approach the bench, explaining that he was concerned the witness was going to violate appellant's Fifth Amendment right not to self-incriminate by testifying that appellant refused to provide the passcode associated with his iPhone. The prosecutor said that she did not intend to ask the witness whether he asked appellant to provide the passcode, and examination of the witness continued. Detective Monson explained that it was possible that he had not been able to view all the information on the phone because it prompted him for an encrypted password, which he did not have. He said that he was able to extract over 100 images of CB from the phone. The State introduced six of those photos into evidence. They included photos of CB doing homework, CB sleeping, and a close-up of CB's face. At that point, the following colloquy occurred:
PROSECUTOR : I want to talk just a little bit about we talked about [appellant's] phone and how it's possible that you may not be able to get deleted messages off of the phone. Is that true for all iPhones?
WITNESS : No. I mean, there is-there is a chance, a small possibility. But in the case with [appellant's] phone, and without giving up the encryption password, I was only-
Defense counsel objected, at which point both counsel approached the bench.
DEFENSE COUNSEL : Your Honor, similar to what-he just said it. He said without [appellant] giving up his password.
PROSECUTOR : I wasn't trying to elicit that.
DEFENSE COUNSEL : Oh, no. I'd like to move to strike what he said.
THE COURT : Look, here's the thing. In opening statement, you talked about the only testimony, the only evidence this jury is going to hear is the testimony from these boys. Okay. And for him to not have the data I guess my point is I don't see a I think you're saying a Fifth Amendment right to not do that.
PROSECUTOR : Your Honor, the search warrant-
THE COURT : That's why we got a search warrant. I guess I am having difficulty with-
DEFENSE COUNSEL : Your Honor, I think we were fine with before. There is more to it but this time.
THE COURT : You are asking me to strike what he just said. My point is I have difficulty striking it because it explains what Detective Monson had to do and he did it by a magistrate going over the probable cause, granting the search warrant, and doing so.
DEFENSE COUNSEL : Your Honor, he-he didn't have to get a search warrant because [appellant] wouldn't give him the password. He had to get a search warrant because [appellant] wouldn't give him the phone.
PROSECUTOR : I think, Your Honor, there will be testimony that-we don't know his testimony, what he would say. And so I think it is imperative that we show that we tried to do what we could to get this.
THE COURT : I'm going to overrule your objection. I think-I think it explains what he's able to do. If you need to go through cross-examination explain he's got a constitutional right to do so. I will certainly admonish the jury that he has a constitutional right. I'll be glad to do that now.
DEFENSE COUNSEL : I think at the very least, that would help.
THE COURT : Do you want me to do that?
DEFENSE COUNSEL : Yes, Your Honor.
Whereupon the proceedings at the bench were concluded, and the court gave the following admonishment to the jury.
THE COURT : All right, folks, I am going to go ahead and just give you what is called an admonishment. And what it is, is Detective Monson had said something about the passcode and that [appellant] had not provided the passcode. Okay. You need to understand [appellant] has an absolute, constitutional, guaranteed by both the United States Constitution and the Arkansas Constitution, to not incriminate himself under the Fifth Amendment. He has that absolute right to not provide that information. Do you all understand?
The State resumed direct examination of Detective Monson and admitted a photo of CB taken from appellant's phone that appeared to have been posted on Facebook, but the State did not ask any questions about the extraction process or appellant's passcode.
On appeal, appellant argues that he had the absolute right under the Fifth Amendment not to provide the State with the passcode to his iPhone and that Detective Monson's reference to his exercise of that right was an improper comment on his right to remain silent. In support of his argument, he cites the United States Supreme Court's decision in Griffin v. California , 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and our supreme court's opinion in Jones v. State , 340 Ark. 390, 10 S.W.3d 449 (2000). Griffin , and Jones in reliance on Griffin , prohibits comment on a defendant's failure to testify at trial and is thus not relevant here. Appellant testified at trial, and any comments by Detective Monson related to silence before the trial, not during. But as the State properly asserts, the Supreme Court has held that the Fifth Amendment also prohibits certain uses of a defendant's postarrest silence to later impeach him at trial. Doyle v. Ohio , 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).
In Doyle , prosecutors cross-examined defendants about their post-Miranda silence and asked why they told an exculpatory story for the first time at trial. The Supreme Court held that this was reversible error because it "would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial. " Id. at 618, 96 S.Ct. 2240 (emphasis added). Doyle does not, however, prohibit all comments on a defendant's postarrest silence. When a comment on a defendant's postarrest silence is not an attempt to impeach the defendant, it is not the type of comment prohibited by the Court in Doyle . Sylvester v. State , 2016 Ark. 136, at 11, 489 S.W.3d 146, 152-53 ; see also Ferrell v. State , 325 Ark. 455, 463, 929 S.W.2d 697, 703 (1996) ; Davis v. State , 345 Ark. 161, 176, 44 S.W.3d 726, 735 (2001). Further, a witness's inadvertent reference to, rather than a prosecutor's direct comment on, a defendant's postarrest silence does not implicate the protections afforded by Doyle . Robinson v. State , 348 Ark. 280, 290, 72 S.W.3d 827, 834 (2002) ; see also Tarkington v. State , 313 Ark. 399, 55 S.W.2d 306 (1993) (holding that there was no Doyle violation when there was no comment or question by the prosecutor about a defendant's postarrest silence but rather an inadvertent reference to the defendant's silence by a witness).
In this case, the prosecution did not comment on appellant's failure to turn over his iPhone passcode in either its opening statement or its closing argument. The only mention of this failure was by a witness, Detective Monson, in response to a question about his process in extracting information from a phone. He said that there was a small chance that he could recover deleted messages from a phone but "not without giving up the encryption password." After defense counsel moved to strike the statement, the court offered-and defense counsel accepted the offer-to admonish the jury that appellant had a constitutional right not to provide the passcode to his phone. This incident was in no way an impeachment of some explanation appellant had offered at trial as in Doyle , and it was not a manifest intent to comment on appellant's silence. Rather, it was an inadvertent comment by a witness in explaining to the jury his work to extract information from appellant's phone. Moreover, following the court's admonishment to the jury, the prosecutor did not dwell on the reference or elicit any further comment about it. We hold this was not an improper comment on appellant's silence contemplated by Doyle , and the court's refusal to grant appellant's motion to strike the comment was not reversible error
II. Sixth Amendment Right
For his second point on appeal, appellant contends that his Sixth Amendment right to confront the witnesses against him was violated by Detective Monson's remote testimony through two-way live video. Detective Monson was not available to testify at trial because he was at a week-long work conference in Las Vegas. Appellant objected to the court's allowing Detective Monson to testify by live remote through GoTo Meeting. The court overruled appellant's objection, reasoning as follows:
THE COURT : I understand your objection, Mr. Faught. This is going to be the Court's ruling on this. The Sixth Amendment of the United States Constitution and the Arkansas Constitution guarantees that all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him. This confrontation clause applies to both federal and state prosecutions. Here, Officer Travis Monson is unavailable to appear in person because he's attending I want to call it a required continuing legal education, but it's required for his job as a person who extracts information from phone and technical apparatuses. But Detective Monson is able to appear live via a remote access. In fact, I think we're using GoToMeeting. He will be subject to the Defendant's cross-examination.
Furthermore, as I am looking on the screen I see Detective Monson very clearly.... [The screen] is huge and can be seen by both the defendant, the defendant's counsel, and by the jury. In fact, I have an HDTV that is right in front of the jury box that's for them to also see that. So, the jury, the defendant, the defendant's counsel will all be able to observe, in real time, Detective Monson's tones, his demeanor, his body language, his facial expressions all in real time. Thus, this court rules that it is protection of the defendant's absolute constitutional right to confront witnesses against him. So, your objection is denied or overruled.
The Confrontation Clause in the Sixth Amendment to the United States Constitution states: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." U.S. Const. amend. VI. Article 2, section 10 of the Arkansas Constitution repeats that same right of confrontation. We have consistently interpreted both clauses to provide identical rights. Smith v. State , 340 Ark. 116, 119, 8 S.W.3d 534, 536 (2000). The United State Supreme Court held in Coy v. Iowa , 487 U.S. 1012, 1016, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), that "the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact." Two years later, in a case involving the use of one-way video testimony of a child who was a victim of sexual abuse, the Court held that the Confrontation Clause does not guarantee criminal defendants an absolute right to a face-to-face meeting with witnesses against them. Maryland v. Craig , 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). The Court emphasized, however, that the preference is a strong one and that a defendant's Sixth Amendment confrontation right "may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." Id. at 850, 110 S.Ct. 3157.
Neither the United States Supreme Court nor the appellate courts in Arkansas have addressed whether Craig applies to a situation not involving a child victim of sexual abuse and involving the use of two-way video rather than one-way video. The Eighth Circuit held that the holding in Craig controls two-way systems as well as one-way systems. United States v. Bordeaux , 400 F.3d 548 (8th Cir. 2005). In affirming its earlier holding on the issue, the Eighth Circuit reasoned:
It is true that a two-way closed-circuit television creates an encounter that more closely approximates a face-to-face confrontation than a one-way closed-circuit television does because a witness can view the defendant with a two-way system. But two-way systems share with one-way systems a trait that by itself justifies the application of Craig : the "confrontations" they create are virtual, and not real in the sense that a face-to-face confrontation is real.
The virtual "confrontations" offered by closed-circuit television systems fall short of the face-to-face standard because they do not provide the same truth-inducing effect. The Constitution favors face-to-face confrontations to reduce the likelihood that a witness will lie. "It is always more difficult to tell a lie about a person 'to his face' than 'behind his back.' " Coy v. Iowa , 487 U.S. 1012, 1019, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). Given the ubiquity of television, even children are keenly aware that a television image of a person (including a defendant in the case of a two-way system) is not the person[.] [S]omething is lost in the translation. Thus, a defendant watching a witness through a monitor will not have the same truth-inducing effect as an unmediated gaze across the courtroom. ... Admittedly, the "confrontation" offered by a one-way system is, for lack of a better phrase, even more virtual because it depends on the witness envisioning the defendant to create the "confrontation." And one can imagine that this incremental step away from face-to-face confrontations results in a further diluted truth-inducing effect. That said, the touchstone for deciding whether a "confrontation" satisfies the Constitution is whether it is likely to lead a witness to tell the truth to the same degree that a face-to-face confrontation does, and in this respect two-way systems are like one-way systems: they both fall short.
Id. at 552.
We find the reasoning of the Eighth Circuit persuasive and that Craig governs the situation here. Craig makes clear that video testimony is an exceptional procedure to be used only in exceptional circumstances. In the case at bar, the circuit court appeared to make a finding that the reliability of the testimony was "otherwise assured" under Craig . The circuit court did not, however, state clearly what important public policy justified violating appellant's Sixth Amendment right to confront the witnesses against him, so we can only speculate. And while we are not prepared to expound on what might constitute such an important public policy, other than the testimony of a child victim of sexual abuse, we do not believe that the situation here rises to the exceptional circumstance contemplated by the Court in Craig . We hold that the remote testimony of Detective Monson violated appellant's rights under the Confrontation Clause.
Trial error, however, even involving the Confrontation Clause, is subject to a harmless-error analysis. Sparkman v. State , 91 Ark. App. 138, 208 S.W.3d 822 (2005). To conclude that a constitutional error is harmless and does not mandate a reversal, our court must conclude beyond a reasonable doubt that the error did not contribute to the verdict. Id. When determining whether the denial of a party's right to confront witnesses is harmless error, our court must consider factors such as the importance of the witness's testimony, whether the testimony was cumulative, whether there was corroborating or contradicting evidence, and the overall strength of the State's case. N.W. v. State , 2015 Ark. App. 57, at 11, 454 S.W.3d 271, 278.
Detective Monson had no personal interactions with either of the victims in this case or with appellant. His only role was to extract information from appellant's iPhone. At trial, Detective Monson principally testified about the procedures generally used to extract such information and about the procedures he used on appellant's phone specifically. He also said that he retrieved numerous pictures of CB from appellant's phone, but only six of those photos were admitted into evidence, in addition to one photo of CB with a caption that was posted on appellant's Facebook account. Neither his testimony about the photos nor the photos themselves involved sexual misconduct or inappropriate behavior.
Mr. Barnhart testified about the close relationship between CB and appellant from 2012 through 2015. He said that CB's attitude changed in 2016 and that CB did not want to be around appellant. Mr. Barnhart said that in August 2016, CB told him appellant had "touched" him. Mrs. Barnhart testified that she had been concerned about CB's relationship for a while before CB finally admitted to her that appellant had touched him inappropriately. She said that she could tell something was wrong with CB and that she had noticed changes in his demeanor and behavior. The State admitted one photo of CB through her testimony. She also identified CB in all the photographs that were later admitted in Detective Monson's testimony. Of the six photos admitted through Detective Monson, Mrs. Barnhart testified that she had taken two of the photos, which she had posted on her social media accounts.
CB's uncle, Brandon Klein, testified that he had known appellant for twenty years as a family friend and had worked with him for several years. He said that he was appellant's friend on Facebook and had seen appellant's post of a photo of CB on July 28, 2016. The caption with the post stated: "This is my best friend. I've known him for about three years, and I miss him so much. It has been the biggest misunderstanding in my whole life." Although the Facebook post and photo had already been admitted through Detective Monson's testimony, the State also admitted it through Mr. Klein's testimony.
Finally, both victims testified in detail about their relationship with appellant. BD testified that appellant had given him a back rub when he spent the night at CB's house and that appellant had "tried to grab [his] penis" when he turned over onto his back. He said that appellant "touched my penis with his hand, I had clothes on, and he went under my clothes." BD said he told appellant to stop, which he did, and appellant told BD the next morning that he was sorry and it would not happen again.
CB testified that appellant would often rub his back when he was sleeping and sometimes he would go lower "and touch my butt." He also said that a "couple of times" appellant would grab his stomach and then go "lower" and "rub my penis with his hand." He said appellant never pulled CB's pants down at night but he "would pull my pants down at other times, during the day." He said when appellant pulled CB's pants down, his penis would be out of his clothing. CB also testified that appellant put CB's penis inside his mouth. Appellant told CB that if he told anyone they would put appellant in jail. CB testified that initially he did not admit this to his mother when she asked if appellant had done anything to make him feel uncomfortable because he liked appellant and did not want him to go to jail.
Det. Thomas Wooten with the Springdale Police Department testified that he had interviewed both boys and that both had told him appellant had touched them inappropriately. He said that he specifically asked BD if appellant had touched his penis inside his underwear, and BD said yes. He also interviewed appellant, who told Detective Wooten that he was close friends with the Barnharts, had been sleeping on CB's floor on a mattress right next to CB, and had often rubbed CB's back to get him to sleep at night. Detective Wooten asked appellant if he had ever accidentally touched CB's penis, and appellant answered that if he had, he must have been asleep. Detective Wooten testified that he obtained a warrant to search appellant's phone and that Detective Monson had performed an extraction on the phone. Detective Wooten said that he saw a lot of photos of CB and a few photos of other boys he did not know from Detective Monson's report on the extraction.
In light of both victims' detailed testimony of the sexual misconduct, which is sufficient to support the convictions, coupled with the additional testimony of both victims' mothers, Mr. Barnhart, Detective Wooten, CB's uncle, and the additional photos that were introduced outside of Detective Monson's testimony, we hold that the violation of appellant's right to confront Detective Monson was harmless error.
Affirmed.
Hixson and Brown, JJ., agree. | [
48,
-24,
-83,
-100,
27,
33,
10,
60,
58,
-89,
115,
-13,
-85,
-34,
4,
125,
43,
111,
93,
97,
-46,
-73,
7,
99,
-14,
-77,
-69,
-57,
-80,
-49,
44,
-84,
91,
112,
-54,
-39,
34,
-56,
-59,
20,
-126,
2,
-117,
-64,
81,
70,
52,
62,
92,
-101,
53,
-98,
-93,
47,
28,
-53,
73,
110,
91,
63,
88,
25,
-38,
23,
-113,
52,
-93,
36,
-102,
5,
112,
57,
-36,
49,
8,
104,
115,
-106,
-128,
116,
107,
-103,
-84,
32,
102,
14,
29,
-41,
-87,
-119,
19,
-10,
-103,
-89,
-40,
97,
1,
109,
-73,
-35,
78,
116,
14,
-6,
-17,
78,
121,
100,
38,
-49,
-76,
-111,
-123,
108,
86,
-78,
-61,
37,
112,
117,
-49,
-26,
87,
31,
122,
-101,
-98,
-80
] |
KAREN R. BAKER, Associate Justice
On November 15, 2016, a Benton County Circuit Court jury convicted appellant, Mauricio Alejandro Torres, of capital murder and first-degree battery in the death of his six-year-old son Maurice "Isaiah" Torres. The jury was presented with two alternative theories of capital murder: (1) felony murder with the underlying felony of rape (rape felony murder); or (2) child-abuse murder. Torres was sentenced to death for the murder and to twenty years' imprisonment and a $ 15,000 fine for the battery. Torres raises nine points on appeal: (1) the circuit court should have directed a verdict on the rape felony murder formulation because of failure of proof of the predicate felony; (2) Torres was entitled to separate verdict forms in order for the jury to specify which formulation or formulations of capital murder the jury had convicted him of; (3) the circuit court erred in refusing to correct the prosecutor's erroneous comments about jury unanimity; (4) the formulation "under the circumstances manifesting extreme indifference to the value of human life" is unconstitutionally vague because of shifting and conflicting interpretations; (5) the circuit court erred in denying jury instructions for the affirmative defense to felony murder that appropriately allocate the burden of proof; (6) the circuit court should have suppressed Torres's statements, and if not, the circuit court should have required admission of another Torres statement under authority of Arkansas Rule of Evidence 106 ; (7) the circuit court erred in permitting aggravating circumstances for which Torres was never convicted and for which the statute of limitations had expired; (8) the circuit court erred in refusing a jury instruction correctly stating Arkansas law as to the grant of mercy; and (9) the circuit court must reverse the death sentence because of the improper double counting.
I. Points on Appeal
A. Rape Felony Murder
1. Standard of review
The State charged Torres with capital murder under alternate theories pursuant to Ark. Code Ann. § 5-10-101 (Supp. 2017), rape felony murder and child-abuse murder. For his first point on appeal, Torres contends that the circuit court should have directed a verdict on the rape-felony-murder formulation because of failure to prove the underlying felony. Torres contends that the rape conviction is legally insufficient, and because a general verdict form was used, it is unclear which theory the jury convicted upon; and therefore, we must reverse and remand this case for a new trial. In addressing Torres's argument, we first review the applicable standards of review.
a. Jurisdictional sufficiency
First, territorial jurisdiction over a criminal defendant is controlled by statute. Arkansas courts have jurisdiction to convict a person under this state's laws when a crime is committed by a person if "[e]ither the conduct or a result that is an element of the offense occurs within the state." Ark. Code Ann. § 5-1-104(a)(1) (Repl. 2013); see also Kirwan v. State , 351 Ark. 603, 616, 96 S.W.3d 724, 731 (2003). "We have stated that 'when reviewing the evidence on a jurisdictional question, [we] need only determine whether there is substantial evidence to support the finding of jurisdiction.' [ Kirwan , 351 Ark. 603, 96 S.W.3d 724 ]; Dunham v. State , 315 Ark. 580, 581, 868 S.W.2d 496, 497 (1994)." Ridling v. State , 360 Ark. 424, 435, 203 S.W.3d 63, 70 (2005).
b. Factual sufficiency
Second, we treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Whitt v. State , 365 Ark. 580, 232 S.W.3d 459 (2006). When reviewing a challenge to the sufficiency of the evidence, this court assesses the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Gillard v. State , 366 Ark. 217, 234 S.W.3d 310 (2006). We will affirm a judgment of conviction if substantial evidence exists to support it. Id. Substantial evidence is evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Ricks v. State , 316 Ark. 601, 873 S.W.2d 808 (1994).
c. Legal sufficiency
Third, we must review the legal sufficiency of Torres's conviction. In Stromberg v. California , 283 U.S. 359, 367-68, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), the Supreme Court addressed the use of a general verdict form when the statute at issue could be violated under three distinct theories. In Stromberg , one of the possible bases of conviction was unconstitutional. In reversing the conviction, the Court explained: "The verdict against the appellant was a general one. It did not specify the ground upon which it rested. As there were three purposes set forth in the statute, and the jury was instructed that their verdict might be given with respect to any one of them, independently considered, it is impossible to say under which clause of the statute the conviction was obtained. If any one of these clauses, which the state court has held to be separable, was invalid, it cannot be determined upon this record that the appellant was not convicted under that clause."
Next, in Yates v. United States , 354 U.S. 298, 312, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), overruled on other grounds by Burks v. United States , 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). The Supreme Court extended the Stromberg rule to cases in which one possible basis for conviction was illegal due to a statutory time-bar. In that case, Yates appealed from a conviction of (1) conspiring to organize the Communist Party of the United States with the intent of causing the overthrow of the government and (2) conspiring to advocate the violent overthrow of the government. The two charges were submitted together to the jury, but it could not be determined on which charge the defendants had been convicted. The Supreme Court was then presented with the issue of two different legal theories to support Yates's conviction. The Supreme Court held that the charge of conspiring to organize the Communist Party of the United States with the intent of causing the overthrow of the government was barred by the statute of limitations. Because that charge was submitted to the jury, along with the charge of conspiring to advocate the violent overthrow of the government, the Supreme Court held that the convictions could not be supported on the basis of the conspiring-to-advocate charge as it could not be determined on which charge the jury had convicted the defendants. The Supreme Court explained:
In these circumstances we think the proper rule to be applied is that which requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected. Stromberg v. California , 283 U.S. 359, 367-368, [51 S.Ct. 532, 535, 75 L.Ed. 1117] ; Williams v. North Carolina , 317 U.S. 287, 291-292, [63 S.Ct. 207, 209-210, 87 L.Ed. 279] ; Cramer v. United States , 325 U.S.1, 36, n. 45 [325 U.S. 1, 65 S.Ct. 918, 935, n. 45, 89 L.Ed. 1441].
Id.
In Griffin v. United States , 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991), the Supreme Court limited the application of Yates to circumstances in which one of the alternatives was legally insufficient-not simply factually insufficient. In explaining the distinction between factually and legally insufficient, the Court stated:
Finally, petitioner asserts that the distinction between legal error ( Yates ) and insufficiency of proof ( Turner [v. United States , 396 U.S. 398, 420, 90 S.Ct. 642, 654, 24 L.Ed.2d 610 (1970) ] ) is illusory, since judgments that are not supported by the requisite minimum of proof are invalid as a matter of law-and indeed, in the criminal law field at least, are constitutionally required to be set aside. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Insufficiency of proof, in other words, is legal error. This represents a purely semantical dispute. In one sense "legal error" includes inadequacy of evidence-namely, when the phrase is used as a term of art to designate those mistakes that it is the business of judges (in jury cases) and of appellate courts to identify and correct. In this sense "legal error" occurs when a jury, properly instructed as to the law, convicts on the basis of evidence that no reasonable person could regard as sufficient. But in another sense-a more natural and less artful sense-the term "legal error" means a mistake about the law, as opposed to a mistake concerning the weight or the factual import of the evidence. The answer to petitioner's objection is simply that we are using "legal error" in the latter sense.
That surely establishes a clear line that will separate Turner from Yates , and it happens to be a line that makes good sense. Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law-whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence, see Duncan v. Louisiana , 391 U.S. 145, 157, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968).
Griffin , 502 U.S. at 58-59, 112 S.Ct. 466.
Accordingly, the Supreme Court has identified a distinction between legally insufficient alternatives and alternatives that may not be supported by sufficient evidence. The former cannot be upheld in a general verdict, but the latter can, provided at least one charged alternative is supported by sufficient evidence.
d. Capital-felony-murder standard
Fourth, in reviewing our standards, we note that the parties agree that because the State charged Torres with capital murder pursuant to capital felony murder, the State must prove the underlying felony as it becomes an element of the murder charge. "Under capital-felony murder, the State must first prove the felony, so the felony becomes an element of the murder charge. Ross v. State , 346 Ark. 225, 57 S.W.3d 152 (2001). Proof of each felony was presented separately, and each felony may be examined separately." Williams v. State , 347 Ark. 728, 744, 67 S.W.3d 548, 557 (2002). Accordingly, to sustain Torres's capital-murder conviction, the State must prove either the rape felony murder or the child-abuse-murder.
B. Law and Analysis
1. Felony murder: Ark. Code Ann. §§ 5-10-101 & 5-14-103
With these standards in mind, we now turn to Torres's argument. The State charged Torres with capital murder under two alternate theories pursuant to Arkansas Code Annotated § 5-10-101(a)(1)(A)(ii), the rape-felony-murder provision, and § 5-10-101(a)(9), the child-abuse-murder provision. The statute provides in pertinent part:
(a) A person commits capital murder if:
(1) Acting alone or with one (1) or more other persons:
(A) The person commits or attempts to commit:
...
(ii) Rape, § 5-14-103 ; ... and
...
(B) In the course of and in furtherance of the felony or in immediate flight from the felony, the person or an accomplice causes the death of a person under circumstances manifesting extreme indifference to the value of human life;
...
(9)(A) Under circumstances manifesting extreme indifference to the value of human life, the person knowingly causes the death of a person fourteen (14) years of age or younger at the time the murder was committed if the defendant was eighteen (18) years of age or older at the time the murder was committed.
(B) It is an affirmative defense to any prosecution under this subdivision (a)(9) arising from the failure of the parent, guardian, or person standing in loco parentis to provide specified medical or surgical treatment, that the parent, guardian, or person standing in loco parentis relied solely on spiritual treatment through prayer in accordance with the tenets and practices of an established church or religious denomination of which he or she is a member.
The Arkansas rape statute, Ark. Code Ann. § 5-14-103, provides in pertinent part that "[a] person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person ... who is less than fourteen (14) years of age; who is a minor and the actor is the victim's ... guardian."
2. Ark. Code Ann. section 5-1-104"Extraterritorial Jurisdiction"
Turning to the merits of Torres's first basis for reversal, Torres asserts that the circuit court erred in denying his motion for directed verdict on rape felony murder for two reasons. First, the circuit court erred because the alleged acts did not meet the elements of rape as rape was defined in Missouri when the alleged offense occurred. Second, the alleged acts did not occur in Arkansas; therefore, Arkansas law could not have applied. We will focus on Torres's second argument. The crux of his argument is that the State did not have jurisdiction over the alleged rape. Accordingly, Torres contends that because the rape felony murder is legally insufficient, and we are unable to discern whether the jury convicted Torres of rape or child abuse, or both, we must reverse and remand the case for a new trial.
The State responds that the circuit court correctly denied Torres's motion for directed verdict and contends that there is a statutory presumption that the state in which the charges are filed has jurisdiction and that there is substantial evidence to support the circuit court's territorial jurisdiction pursuant to Ark. Code Ann. § 5-1-104. The State further responds that the death was the result of the rape, which establishes a sufficient connection for the State to establish jurisdiction.
a. Statutory interpretation
Torres's argument on appeal requires us to interpret the statute at issue. This court reviews issues involving statutory construction de novo, as it is for this court to decide the meaning of a statute. State v. Britt , 368 Ark. 273, 244 S.W.3d 665 (2006). We also adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. Newman v. State , 2011 Ark. 112, 380 S.W.3d 395 ; State v. Havens , 337 Ark. 161, 987 S.W.2d 686 (1999). "[T]he first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language." Potter v. City of Tontitown , 371 Ark. 200, 209, 264 S.W.3d 473, 481 (2007). Further, penal statutes are to be strictly construed, and all doubts are to be resolved in favor of the defendant. Williams v. State , 364 Ark. 203, 217 S.W.3d 817 (2005). However, even a penal statute must not be construed so strictly as to defeat the obvious intent of the legislature. Id. Additionally, in construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. Singleton v. State , 2009 Ark. 594, 357 S.W.3d 891 ; Bush v. State , 338 Ark. 772, 2 S.W.3d 761 (1999).
We now apply these principles to the statute under review. Arkansas Code Annotated section 5-1-104, "Extraterritorial Jurisdiction," states in its entirety:
(a) A person may be convicted under a law of this state of an offense committed by his or her own or another person's conduct for which he or she is legally accountable if:
(1) Either the conduct or a result that is an element of the offense occurs within this state;
(2) Conduct occurring outside this state constitutes an attempt to commit an offense within this state;
(3) Conduct occurring outside this state constitutes a conspiracy to commit an offense within this state and an overt act in furtherance of the conspiracy occurs within this state;
(4) Conduct occurring within this state establishes complicity in the commission of, or an attempt, solicitation, or conspiracy to commit, an offense in another jurisdiction that is also an offense under the law of this state;
(5) The offense consists of the omission to perform a legal duty imposed by a law of this state based on domicile, residence, or a relationship to a person, thing, or transaction in the state; or
(6) The offense is defined by a statute of this state that expressly prohibits conduct outside the state and the conduct bears a reasonable relation to a legitimate interest of this state and the person knows or should know that his or her conduct is likely to affect that legitimate interest of this state.
(b) When the offense is homicide, either the death of the victim or the physical contact causing death constitutes a "result" within the meaning of subdivision (a)(1) of this section.
Torres concedes that the State had jurisdiction to try him for murder pursuant to subsection (b) because the death occurred in Arkansas. However, Torres contends that the statute is void of language that would authorize a rape prosecution. The plain language of subsection (a)(1) provides that a person may be convicted under Arkansas law of an offense committed by his own conduct for which he is legally accountable if either the conduct or a result that is an element of the offense occurs within this state. In other words, based on the plain language of the statute, to establish jurisdiction over the predicate felony of rape, there are two options:
Option One: Either the conduct-the alleged rape-occurs within Arkansas, or
Option Two: A result that is an element of the offense-the alleged rape-occurs within Arkansas.
Here, it is undisputed that the "conduct" alleged to have supported rape occurred entirely in Missouri; thus, the first option fails. The second option is if "a result" that is an element of the offense-the alleged rape-occurs within this state. The "result" here was death, and death is not an element of rape. Accordingly, based on the plain language, the extraterritorial-jurisdiction statute does not extend to the alleged rape.
However, the State urges us to affirm the circuit court and contends that territorial jurisdiction as defined in Ark. Code Ann. § 5-1-104 does not restrict jurisdiction to those crimes committed entirely within the territory of the state and argues that there is a sufficient connection between Arkansas and the death to support the circuit court's jurisdiction over the rape. Relying on Kirwan v. State , 351 Ark. 603, 96 S.W.3d 724 (2003), and Findley v. State , 307 Ark. 53, 818 S.W.2d 242 (1991), the State contends that our case law supports its interpretation of section 5-1-104. In Kirwan , the defendant, a Texas resident, sent to Arkansas sexually explicit pictures depicting children. We held that the conduct and the result of the conduct occurred in Arkansas and we therefore had jurisdiction. In Findley , a robbery was planned in Arkansas, but it led to a murder in Tennessee. There, we said that "it is generally accepted that if the requisite elements of the crime are committed in different jurisdictions, any state in which an essential part of the crime is committed may take jurisdiction." Findley , 307 Ark. at 59-60, 818 S.W.2d at 246. Thus, in Findley , the robbery scheme that was initiated in Arkansas was an element of the capital murder that occurred in Tennessee. Accordingly, neither Kirwan nor Findley supports the State's position.
Finally, in oral argument, the State contended that Cousins v. State , 202 Ark. 500, 151 S.W.2d 658 (1941), supports the jury's verdict. In Cousins , C.H. Cousins was alleged to have knowingly written checks from a Missouri bank account that had insufficient funds to cover the checks and then deposited them in a bank in Arkansas. The Logan County Circuit Court convicted Cousins of issuing an insufficient-funds check. We reversed and dismissed Cousins's convictions, explaining that "our statute is violated when an overdraft is drawn on a bank in this state. To construe it otherwise is to give it extraterritorial effect." Id. at 503, 151 S.W.2d at 660. We went on to explain that
[a] case illustrative of this principle, and one frequently cited, is that of State v. Chapin , 17 Ark. 561, 65 Am. Dec. 452, in which Chief Justice English said: "For example, if a man standing beyond our boundary line, in Texas, were, by firing a gun, or propelling any other implement of death, to kill a person in Arkansas, he would be guilty of murder here, and answerable to our laws, because the crime is regarded as being committed where the shot, or other implement propelled, takes effect."
At § 134 of the chapter on Criminal Law, 22 C.J.S., page 219, it is said: "If a crime covers only the conscious act of the wrongdoer, regardless of its consequences, the crime takes place and is punishable only where he acts; but, if a crime is defined so as to include some of the consequences of an act, as well as the act itself, the crime is generally regarded as having been committed where the consequences occur, regardless of where the act took place, and under a statute so providing a person who commits an act outside the state which affects persons or property within the state, and which, if committed within the state, would be a crime, is punishable as if the act were committed within the state."
This, we think, is a sound statement of the law, and is the law of this state[.]
Id. at 502-03, 151 S.W.2d at 660.
Therefore, Cousins does not support the State's position, but it does support our interpretation of Ark. Code Ann. § 5-1-104 -our extraterritorial jurisdiction does not encompass the alleged rape that occurred entirely outside this state. If rape was defined to include death as a consequence, Cousins would support Arkansas' jurisdiction. As discussed above, it does not. In sum, the State's reliance on these cases and its interpretation of the statute are misplaced. Further, the State conceded in oral argument that it could not have charged Torres with rape in Arkansas. If Torres could not have been charged in this state, that necessarily means that the elements of rape could not have been met in this state. If the elements of rape cannot be met, rape cannot serve as an element of capital murder.
Based on our discussion above, we are unpersuaded by the State's position. Simply put, based on the plain language of the statute, extraterritorial jurisdiction does not extend to the alleged rape that occurred in Missouri. Here, the death is the consequence or result of the rape, but death is not an element of the rape offense. The flaw in the State's argument is that regardless of whether Torres was charged with rape, pursuant to our law regarding felony-murder, the State must prove that an element of the underlying felony occurred in this state. The State cannot establish that Arkansas had jurisdiction to reach the conduct alleged to have been rape. Because of this, the rape felony murder is insufficient, which in turn taints the entire verdict because the jury completed a general verdict form. Stated differently, as in Griffin , because of the general-verdict-form formulation, we are unable to determine which formula-rape felony murder or child-abuse-murder-the jury based its conviction on.
Because we find merit in Torres's first point and reverse and remand for a new trial, we do not reach Torres's remaining points on appeal.
Reversed and remanded for a new trial.
Hart, J., concurs.
Kemp, C.J., and Wood and Womack, JJ., dissent.
Josephine Linker Hart, Justice, concurring.
I agree with the conclusions reached in the majority opinion. However, that opinion addresses only three of the nine issues Appellant raises on appeal. At least some of Appellant's six remaining issues are both potentially meritorious and likely to reoccur on remand. Even so, I write expansively to address just one of them: the use of uncharged alleged crimes, for which the statute of limitations would have since expired, as the basis for an aggravating factor at sentencing in a death penalty case. The allegations at issue here are condemnable, but the ugliness of a given allegation cannot supersede the most basic due process principles guaranteed to all citizens by our constitution.
During the penalty phase of the trial, the State called as witnesses five of Appellant's grown biological children and stepchildren who testified that Appellant had committed offenses against them in the 1990s and early 2000s that would fit within the aggravating factors set forth in Ark. Code Ann. § 5-4-604(3) :
(3) The person previously committed another felony, an element of which was the use or threat of violence to another person or the creation of a substantial risk of death or serious physical injury to another person;
Appellant objected to the use of this evidence on the ground that he was never charged with, or convicted of, any of these allegations and that the statute of limitations for each allegation had since expired. Moreover, Appellant argued that these allegations were reported to the authorities at the time they would have occurred, but the prosecution elected not to file charges.
Appellant also entered into the record investigative reports concerning these allegations; these reports were generated by the Crimes Against Children Division of the Arkansas State Police (CACD). As they relate to these allegations, at least some of the reports reflect favorably on Appellant. For example, regarding B.M.'s allegations, the report summarized the CACD investigation as follows:
The Crimes against Children Division recommends an unsubstantiated finding of Oral Sex and Sexual Penetration as there was not a preponderance of evidence that sexual abuse occurred to [B.M.] by her stepfather, Maurice Torres. [B.M.] did not disclose any sexual abuse to Investigator after 2 separate interviews. [B.M.] was examined at Arkansas Children's Hospital for any evidence of sexual abuse, but no evidence was found. Maurice denied all allegations.
[End of excerpt.]
At trial and on appeal, Appellant argues that the use of these allegations to supply an aggravating factor at sentencing violates due process. For this court to allow such a practice would be to disregard the very purpose of the statute of limitations, which is "to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past." Toussie v. United States , 397 U.S. 112, 114, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970). Citing the excerpt above from Toussie , Appellant asserts:
That is precisely what happened here. Torres was investigated. Reports were made to the prosecuting attorney. No charge was filed. His ability to defend himself on the allegations dissipated over the years. Then these accusations were used to sentence him to death.
Appellant is correct. The use of uncharged crimes--for which the applicable statute of limitations would have since expired--to supply a basis for an aggravating factor at sentencing in a death-penalty case violates due process.
I concur.
"We have repeatedly held that we will not read into a statute language that was not included by the legislature. E.g. , [Keep our Dollars in Independence Cty. v. ] Mitchell , [2017 Ark. 154, 518 S.W.3d 64 ]; Scoggins v. Medlock , 2011 Ark. 194, 381 S.W.3d 781 ; Potter v. City of Tontitown , 371 Ark. 200, 264 S.W.3d 473 (2007)." Ark. Dep't of Corr. v. Shults , 2017 Ark. 300, at 7, 529 S.W.3d 628, 632. "We must also presume that the General Assembly did not intend to pass an act without purpose. See Clark v. State , 308 Ark. 84, 308 Ark. 453 [motion to stay mandate], 824 S.W.2d 345 (1992)." Reed v. State , 330 Ark. 645, 649, 957 S.W.2d 174, 176 (1997). We also note that Ark. Code Ann. § 5-1-104(a)(6) provides the General Assembly with the authority to enact legislation to address conduct outside the State: "The offense is defined by a statute of this state that expressly prohibits conduct outside the state and the conduct bears a reasonable relation to a legitimate interest of this state and the person knows or should know that his or her conduct is likely to affect that legitimate interest of this state." We further note that in reviewing the entire Code, the General Assembly has enacted laws-such as our habitual-offender statute, Arkansas Code Annotated 5-4-501, which specifically allows consideration of crimes committed in another jurisdiction, but the felony-murder statute does not contain this provision. | [
112,
-18,
-12,
-68,
24,
65,
26,
-72,
67,
-61,
-32,
-45,
-81,
-53,
4,
121,
35,
127,
117,
-23,
-43,
-73,
23,
97,
-78,
-13,
-79,
-41,
50,
-55,
-4,
-12,
79,
96,
-22,
-47,
66,
10,
-59,
90,
-114,
-119,
-39,
-48,
19,
7,
52,
46,
26,
15,
53,
-82,
-77,
43,
31,
-21,
73,
44,
89,
-65,
8,
-69,
58,
7,
-50,
20,
-93,
-90,
-101,
2,
90,
52,
-36,
49,
8,
104,
115,
-106,
-126,
-44,
109,
-103,
-116,
100,
102,
1,
20,
-57,
-88,
-87,
47,
126,
25,
-89,
-104,
121,
75,
13,
-105,
-11,
46,
54,
8,
-1,
-27,
-25,
120,
108,
-128,
-51,
-108,
-127,
-116,
108,
-108,
122,
-37,
47,
16,
101,
-50,
-30,
116,
87,
120,
-101,
-51,
-74
] |
BRANDON J. HARRISON, Judge
In May 2016, Earl Betts and Amy Betts bought a new 2016 Jeep Wrangler from a dealership in Springdale, Arkansas. When they did so they signed a retail-installment sales contract that gave Ally Financial a secured interest in the jeep in exchange for lending them $ 39,137.26. The Bettses insured the jeep through a policy with USAA General Indemnity Company (USAA). They also bought additional coverage for it through a guaranteed asset-protection (GAP) contract with the dealership.
Not long after they had bought the jeep, the Bettses were involved in a collision that totaled the jeep. USAA paid Ally Financial $ 32,273.19, and the breakdown of that sum was as follows: $ 30,243 for the jeep's actual cash value; $ 2,015.80 for sales tax; $ 10 for a title fee; $ 2.89 for the validation decal fee; $ 0.50 for the lien filing fee; and $ 1 for the registration fee. The GAP provider paid Ally $ 3,764.26. After these payments, the Bettses still owed Ally $ 2,003.65. Ally has sued the Bettses for the remaining amount, plus interest.
After filing the insurance claim, the Bettses demanded that USAA pay the sales-tax amount, the transfer fee, the validation decal fee, and the registration fee directly to them, not to their creditor Ally. When USAA refused to do so, the Bettses sued the company in January 2017 in the Benton County Circuit Court. USAA answered the complaint. Four months later, the Bettses amended their complaint to allege that they were members of a similarly situated class of insured USAA customers or former customers. They alleged that USAA's failure to issue direct payment to the plaintiffs for the sales tax and fees violated Arkansas law.
USAA filed a notice of removal, but the United States District Court for the Western District of Arkansas remanded the case in late June 2017. A certified copy of the federal order and docket was filed in the Benton County Circuit Court the same day.
In October 2017, USAA filed a counterclaim against the Bettses for a declaratory judgment. USAA also filed a third-party complaint against the lienholder Ally Financial, Inc. and against the dealership that had sold the jeep to the Bettses (Everett CDJR, LLC). In addition to its declaratory-judgment request against the two third-party defendants, USAA claimed unjust enrichment. It requested that if the circuit court determined that USAA must pay the $ 2,030.19 in taxes and fees directly to the plaintiffs, then the defendants should return that money to USAA. In November 2017, Ally answered the third-party complaint and filed a cross-claim against the Bettses for the deficiency balance on the installment contract. Everett also answered USAA's third-party complaint.
In February 2018, USAA moved for summary judgment against the plaintiffs. It argued, among other things, that it had properly paid the vehicle sales tax and fees to Ally under the terms of the USAA automobile-insurance contract and Arkansas law. A flurry of responses and motions ensued. Everett said that it had assigned its contractual rights under the GAP policy to Ally, so it was not a necessary party to the litigation.
In June 2018, the circuit court granted summary judgment to USAA. The summary-judgment order states, "USAA GIC is entitled to judgment as a matter of law on Plaintiffs' claims and on the claim for declaratory judgment set out in its [c]ounter claim against Plaintiffs; and Plaintiff's Amended Complaint against USAA GIC is dismissed, with prejudice." Incorporated in the appealed summary-judgment order is a Rule 54(b) certificate. The certificate is replicated here:
Rule 54(b) Certificate
With respect to the issues determined by the above judgment, the Court finds:
1. With the exception of Ally Bank's cross claim against Plaintiffs for the unpaid balance of the loan on the 2016 Jeep Wrangler, the remaining claims in this case cannot be accurately or efficiently adjudicated until USAA GIC's summary judgment is heard by the appellate courts.
2. These claims are only relevant if Plaintiffs' claims are correct and USAA GIC was required under Arkansas law to send Plaintiffs, and others similarly situated, a check for the portions of the insurance settlement representing sales tax and fees.
3. USAA GIC's third-party claims are currently moot.
4. If the Court's order is reversed, the remaining claims can be efficiently adjudicated, along with Plaintiffs' claims, on remand.
5. It would be a hardship to the parties to litigate the remaining claims, under these circumstances, because they hinge on the outcome of the ultimate issue decided by this Court on USAA GIC's Motion for Summary Judgment.
Upon the basis of the foregoing factual findings, the Court hereby certifies, in accordance with Rule 54(b)(1), Ark. R. Civ. P., that it has determined that there is no just reason for delay of the entry of a final judgment and that the Court has and hereby does direct that the judgment shall be a final judgment for all purposes.
CERTIFIED this 19th day of June, 2018.
This Document Electronically Signed By
JOHN R. SCOTT
CIRCUIT COURT JUDGE
We have a final-order problem in this case. Whether an order is final and appealable is a jurisdictional question that this court will raise on its own. Kowalski v. Rose Drugs of Dardanelle, Inc. , 2009 Ark. 524, 357 S.W.3d 432. A final judgment is the cornerstone of appellate jurisdiction. Ark. R. App. P.-Civ. 2(a) (2018); Bayird v. Floyd , 2009 Ark. 455, 344 S.W.3d 80. For an order to be final and appealable, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Id.
Arkansas Rule of Civil Procedure 54(b) is an exception to this general rule, however, as it allows an appeal when one might not otherwise be available because "one or more but fewer than all of the claims" have been adjudicated. Ark. R. Civ. P. 54(b) (2018). Pursuant to Rule 54(b), a circuit court may direct "the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment." When determining that there is "no just reason for delay," the circuit court must weigh "the overall policy against piecemeal appeals against whatever exigencies the case at hand may present." Murry v. State Farm Mut. Auto. Ins. Co. , 291 Ark. 445, 447, 725 S.W.2d 571, 572 (1987) (internal cites omitted).
Here, the circuit court did not recite facts that establish exceptional circumstances or why "a compelling, discernible hardship will be alleviated by an appeal." Fisher v. Citizens Bank of Lavaca , 307 Ark. 258, 259, 819 S.W.2d 8, 9 (1991). Facts supporting a Rule 54(b) certification must be stated in the circuit court's certificate itself; that the record may contain facts supporting the circuit court's Rule 54(b) certificate is not enough. Dunn v. Am. Mortg. Assocs., Inc. , 2015 Ark. App. 358, at 5, 2015 WL 3507632 ; Bayird , 2009 Ark. 455, at 4, 344 S.W.3d at 84 ("[M]erely tracking the language of Rule 54(b) will not suffice."). And the certificate must contain specific factual findings as to why an immediate appeal should issue. Robinson v. Villines , 2012 Ark. 211, at 5, 2012 WL 1739140. It is a persnickety rule to be sure, but it is also a longstanding one.
Second, the court gave no reason why Ally's dangling cross-claim against the Bettses should not preclude an interlocutory appeal now. SEECO, Inc. v. Holden , 2014 Ark. App. 227, at 3, 2014 WL 1396673 (unresolved cross-claim destroys finality).
Third, the appellants' operative complaint is a class-action complaint seeking to certify as a class certain people insured by USAA. Specifically, the plaintiffs asked the circuit court to certify this class (subject to certain exclusions):
Residents of the State of Arkansas who, from January 19, 2012 through the date of resolution of this action, (a) purchased a policy of insurance from the Defendant; (b) had their vehicle deemed a total loss by the defendant; (c) had applicable taxes, license fees and other fees actually incurred incident to transfer of evidence of ownership of a comparable automobile paid to a lien holder and (d) never received payment of the applicable taxes, license fees and other fees actually incurred incident to transfer of evidence of ownership of a comparable automobile.
Arkansas Rule of Civil Procedure 23(b) requires, "At an early practicable time after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained." Ark. R. Civ. P. 23(b). This standard gives the circuit court and the parties some flexibility, while leaving intact the settled Arkansas law that the court may not inquire into the merits at the certification stage. Speights v. Stewart Title Guar. Co. , 358 Ark. 59, 65, 186 S.W.3d 715, 719 (2004), opinion supplemented on denial of reh'g (Sept. 30, 2004). But there is no class-action related order in the record; not one that certifies a class on a particular issue(s), nor one that denies a class for this reason or that. In other words, we have no idea where this case stands on such a significant procedural issue. We also lack any argument from any party on why this hole in the record does or does not affect the Rule 54(b) request. In summary, the Rule 54(b) certificate does not clearly identify whether this court would be deciding (potentially) thousands of claims as the complaint alleges or just the Bettses' individual claims. This uncertainty alone gives us serious pause. Nor does the Rule 54(b) certificate state any factual reasons why the parties would suffer an undue hardship if an appeal is not permitted right now. Finally, the certificate does not give any factual reasons why this appeal should proceed before Ally's cross-claim against the Bettses has been adjudicated by the circuit court.
For all these reasons, we dismiss this appeal without prejudice for lack of a final order.
Appeal dismissed without prejudice.
Hixson and Brown, JJ., agree. | [
-46,
107,
96,
108,
-120,
-16,
24,
-118,
30,
1,
101,
-45,
-29,
-25,
21,
59,
-27,
25,
97,
96,
-43,
-93,
99,
32,
80,
-69,
-71,
-59,
32,
75,
56,
-44,
84,
56,
-22,
-43,
98,
-61,
-91,
26,
86,
-128,
59,
116,
-3,
69,
112,
-85,
20,
3,
97,
-89,
-64,
46,
53,
98,
105,
10,
105,
-87,
-63,
-13,
-63,
7,
-1,
27,
-111,
52,
-102,
3,
-38,
10,
-108,
51,
104,
-8,
-5,
38,
66,
116,
73,
-99,
1,
-92,
119,
18,
32,
-51,
-4,
32,
-58,
-6,
47,
-106,
-126,
-7,
18,
14,
-74,
28,
-6,
3,
76,
-14,
18,
68,
13,
104,
-107,
-50,
-42,
-111,
109,
64,
-100,
3,
-1,
7,
-80,
101,
-115,
-62,
85,
-41,
126,
51,
7,
-14
] |
BRANDON J. HARRISON, Judge
Malachi Muhammad was convicted of first-degree murder and now appeals, arguing that the circuit court erred in (1) instructing the jury that he would become eligible for parole after serving 70 percent of his sentence, (2) not allowing evidence that the victim possessed a concealed-carry license, and (3) allowing the prosecution to make an improper comment during closing arguments. We affirm.
Muhammad was charged with one count of first-degree murder in the shooting death of Robert Ewans. He was also charged with possession of a firearm by certain persons. The State alleged that on 22 April 2016, Muhammad shot Ewans after observing him leaving his (Muhammad's) ex-girlfriend's apartment. After a jury trial in October 2017, Muhammad was convicted of first-degree murder and sentenced to thirty-five years' imprisonment. Muhammad filed a timely notice of appeal from his conviction. He does not challenge the sufficiency of the evidence supporting his conviction, so a detailed narrative of the facts is unnecessary. Specific facts related to each point on appeal will, of course, be discussed below.
I. Parole Eligibility
During the sentencing phase of the trial, the circuit court instructed the jury as follows.
If you sentence Malachi H.S. Muhammad to be imprisoned for a term of years, he will be eligible for parole or transfer to community punishment supervision after he serves 70 percent of the term of his sentence. This percentage of the imprisonment will not be reduced by the earning of meritorious good time during his imprisonment.
Muhammad complains that this instruction was incorrect because he had two prior violent-felony convictions (which included aggravated robbery), and pursuant to Ark. Code Ann. § 16-93-609(a) (Repl. 2016), any person who commits murder in the first degree and who has previously been found guilty of aggravated robbery shall not be eligible for release on parole. At oral argument, the State conceded that the jury instruction was incorrect given Muhammad's prior criminal history.
For his part, Muhammad acknowledges that no objection to the court's instruction was made below. A contemporaneous objection is generally required to preserve an issue for appeal. Bader v. State , 344 Ark. 241, 40 S.W.3d 738 (2001). Our supreme court has, however, recognized four exceptions to the contemporaneous-objection rule; they are commonly referred to as the Wicks exceptions. Wicks v. State , 270 Ark. 781, 606 S.W.2d 66 (1980). The four exceptions are (1) when the circuit court fails to bring to the jury's attention a matter essential to its consideration of the death penalty itself; (2) when defense counsel has no knowledge of the error and hence no opportunity to object; (3) when the error is so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury correctly; and (4) Ark. R. Evid. 103(d) provides that the appellate court is not precluded from taking notice of errors affecting substantial rights, although they were not brought to the attention of the circuit court. Buckley v. State , 349 Ark. 53, 76 S.W.3d 825 (2002) (citing Wicks , supra ).
In his brief, Muhammad argues all the Wicks factors. But he abandoned all but one of them during oral argument. We will therefore concentrate on the one remaining Wicks factor in play, which is the third one. The third factor is met when there is an error so flagrant and so highly prejudicial in character that a circuit court was duty bound to instruct the jury correctly whether or not an objection was made. And on this factor, Muhammad simply states that the circuit court failed to "catch" the error and to "intervene in correcting it."
In response, the State cites Douglas v. State , 2017 Ark. 70, 511 S.W.3d 852, in which our supreme court held that the third Wicks factor does not apply to jury-instruction issues:
The third Wicks exception applies only when the "error is so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury correctly." Rackley v. State , 371 Ark. 438, 440, 267 S.W.3d 578, 580 (2007). Douglas cites no cases in which a jury instruction error has been considered by this court on direct appeal in the absence of an objection and proffer of the instruction in the trial court. We conclude that the circumstances presented here do not warrant application of the third Wicks exception.
Id. at 4-5, 511 S.W.3d at 855.
Wicks presents narrow exceptions that are rarely applied; Arkansas appellate courts have entertained the third Wicks exception only when the error affects the very structure of the criminal trial. Jones v. State , 2017 Ark. App. 286, 524 S.W.3d 1. This exception has been applied in cases involving the right to a twelve-person jury, violations of Arkansas Code Annotated section 16-89-125(e), and a prosecutor's statements during voir dire that have the effect of shifting the burden of proof. Id. Though all the parties agreed that a jury-instruction error occurred during the sentencing phase of this case, Muhammad's complaint does not fit squarely enough into the third Wicks exception-especially given the supreme court's recent decision in Douglas . See also Halliday v. State , 2011 Ark. App. 544, 386 S.W.3d 51 (declining to apply the third Wicks exception to the giving of an erroneous jury instruction, noting that the circuit court gave the jury instructions that it, and the parties, deemed correct). Because the third Wicks exception does not apply to Muhammad's argument and he otherwise failed to object to the instructional error when it occurred, this court cannot provide any relief.
II. Concealed-Carry License
After his arrest, Muhammad admitted shooting Ewans but "claimed that he observed Ewans come out of his girlfriends [sic] (Rickel Johnson's) apartment and when he inquired about why Ewans was there things went bad and Ewans pulled a gun first and he [Muhammad] shot in defense." Muhammad also filed a notice of his intent to present the affirmative defenses of self-defense and justification. At a pretrial hearing, the State objected to any evidence that Ewans had a concealed-carry license because it did not prove that Ewans had a gun with him when he was shot and killed or that he was the aggressor. In fact, the State argued, no firearm was found on Ewans, inside his car, or anywhere near him. Muhammad argued that the evidence was relevant because "if you have a concealed carry permit, then it is more likely that you're going to have a gun in your car, carrying it." The State again denied the evidence had any probative value. The court ruled as follows:
I'm not going to allow the mere fact that he had a permit to carry, that that made him somehow the aggressor in this case when there's no weapon that was found at the scene that belonged to this particular-the only thing we have is a permit.
And I say that would be unduly prejudiced [sic] to the State in this case, to allow us to turn this victim into the aggressor based on the fact that he had a legal permit to carry. And I'm not going to allow that. And I don't want any mention of it because I think it's unduly prejudicial to the State.
Later, after the defense had rested, Muhammad renewed his motion to admit this evidence, which was denied, and the court remarked, "I guess my real problem was with no weapon being found ... and only one person saying they saw it. ... I don't know whether he had it or not. It's not consistent with the case as developed here."
Circuit courts have wide discretion in evidentiary rulings. Davis v. State , 365 Ark. 634, 232 S.W.3d 476 (2006). This court will not reverse a circuit court's ruling on the admission of evidence absent an abuse of discretion; likewise, we will not reverse absent a showing of prejudice. Id. The abuse-of-discretion standard is a high threshold that requires the circuit court to have acted improvidently, thoughtlessly, or without due consideration. Hortenberry v. State , 2017 Ark. 261, 526 S.W.3d 840.
Much of Muhammad's argument on this point is focused on whether the evidence should have been admitted on relevancy grounds; however, the circuit court did not exclude the evidence because it was irrelevant. The circuit court found that the evidence was unduly prejudicial to the State. Addressing that ruling, Muhammad asserts that the court so ruled "without any objection under Ark. R. Evid. 403 by the prosecutor." Muhammad also cites Ark. R. Evid. 104, which generally provides that questions of admissibility must be determined by the court, and he specifically cites subsection (e), which provides that "[t]his rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility." Muhammad contends that the existence of Ewans's concealed-carry license is relevant to the credibility of his (Muhammad's) testimony and to the defense's theory of the case and is not overly prejudicial. Consequently, the evidence should have been admitted.
The State responds that absent any evidence that Ewans owned a gun or possessed one at the scene of the crime, the circuit court properly excluded evidence that Ewans (the victim) held a concealed-carry license. The State asserts that the only evidence that the victim had a gun was Muhammad's self-serving testimony and that without any additional evidence of Ewans's ownership of a gun, a concealed-carry license had little probative value and would only invite jury speculation.
We hold that, on this record, the circuit court did not abuse its discretion in excluding the evidence. Muhammad testified and told the jury his version of events; that Ewans held a concealed-carry permit would not have tended to bolster Muhammad's testimony unless the jury speculated that simply holding a permit made it more likely that Ewans had a gun in his possession and aggressed Muhammad.
III. Improper Comment During Closing Argument
At trial, Muhammad testified that after he shot Ewans in self-defense, he called his children's mother, said he needed to talk to her about something, and then went to see her and his children. During closing arguments, the prosecutor said this to the jury:
He said he went back there to tell the mother of his children what really happened. Well, that was the honesty in him that was just coming out, and it was bubbling up out of his mouth, and he had to go to the true woman in his life, the mother of his children and tell her what happened. Where was she, the mother-
At that point, defense counsel objected and argued that Muhammad did not have to prove anything or call any certain witness. Defense counsel asked the court to instruct the jury as such, and the court responded that it had already instructed the jury on that issue. Defense counsel then said, "Okay. I know, you're right. I need to preserve my objection." The prosecutor continued his closing argument and said,
If a person is on trial for murder and there is a person out there who can say he came to me and he told me everything about it shortly after it happened, and here's what he told me. Wouldn't you think that person would do that before he testified unless it's a lie? Those are just facts.
A circuit court has discretion to control closing argument and is generally in a better position than this court to determine the possibility of prejudice by observing the argument firsthand. Woodruff v. State , 313 Ark. 585, 856 S.W.2d 299 (1993). We will not reverse the circuit court in matters pertaining to its control, supervision, and determination of the propriety of arguments of counsel in the absence of a manifest abuse of discretion. Id.
Muhammad here complains that the prosecutor improperly argued that not calling the mother of his children as a witness indicated that he had lied on the stand and that the circuit court erred in refusing to admonish the jury as he had requested. He also says that the prosecutor improperly shifted the State's burden of proof.
The State contends that attorneys are to be given leeway in closing remarks and that those remarks that require reversal are rare and must have appealed to jurors' passions. See Delatorre v. State , 2015 Ark. App. 498, 471 S.W.3d 223. The State also argues that the prosecutor's remarks in this case were directed at the State's burden of disproving Muhammad's justification defense, not infringing on his presumption of innocence or right to not call witnesses.
Muhammad did not raise the burden-shifting argument below, and this court will not address an argument made for the first time on appeal. Hall v. State , 2018 Ark. 319, 558 S.W.3d 867. As for the admonishment, the circuit court deemed it unnecessary to repeat its instruction to the jury, and as we have stated, the circuit court is in a better position to determine the possibility of prejudice by observing the argument firsthand. Woodruff , supra. We also note that Muhammad did not believe a mistrial was necessary in the circumstances because he did not move for one. This case does not present a manifest abuse of the circuit court's discretion regarding how it handled a closing argument.
Affirmed.
Abramson and Murphy, JJ., agree.
The charges were later severed, and Muhammad pled guilty to possession of a firearm by certain persons and received a sentence of ten years' imprisonment, to run concurrently to his sentence for first-degree murder.
On this point, Muhammad also argues that the erroneous jury instruction was a "structural error" requiring reversal, citing Teater v. State , 89 Ark. App. 215, 222, 201 S.W.3d 442, 447 (2005). But in Teater the defendant had preserved the alleged jury-instruction error. And this court's decision concerned whether the harmless-error standard of review should be applied.
Jury Instruction Number 8, given before closing arguments began, provided: "The [S]tate must prove beyond a reasonable doubt each element of the offense charged. On the other hand, the defendant is not required to prove his innocence." | [
16,
-21,
-11,
-65,
59,
96,
10,
-100,
83,
-61,
-26,
83,
37,
-34,
21,
123,
-71,
127,
69,
105,
-40,
-97,
39,
65,
-93,
-13,
11,
-41,
50,
107,
-4,
-19,
0,
112,
-30,
81,
-58,
74,
47,
88,
-114,
-125,
107,
101,
72,
72,
32,
38,
0,
7,
49,
-98,
-77,
-85,
29,
-53,
73,
40,
75,
-67,
88,
57,
-117,
-113,
-21,
20,
-109,
36,
-101,
-121,
112,
120,
-40,
49,
8,
-24,
119,
-122,
-126,
116,
73,
11,
44,
102,
114,
17,
72,
-51,
105,
-95,
31,
110,
-99,
-121,
-104,
33,
75,
76,
-41,
-35,
106,
-108,
14,
124,
110,
4,
48,
108,
3,
-57,
-80,
-79,
41,
56,
-106,
-38,
-23,
7,
80,
53,
-50,
-30,
84,
35,
124,
79,
-118,
-73
] |
MIKE MURPHY, Judge
A Woodruff County Circuit Court jury found Kimberly Lee guilty of trafficking of persons, a Class Y felony, and sentenced her to ten years' imprisonment. Lee appeals her conviction and argues that the evidence was circumstantial and was not sufficient for a finding of guilt beyond a reasonable doubt. We affirm.
On May 4, 2017, a criminal information was filed charging Lee with trafficking of persons involving a minor. The affidavit of probable cause for arrest stated that following a referral to the Arkansas State Police Crimes Against Children Division, an investigation was conducted to look into the allegations by sixteen-year-old K.L. regarding multiple sexual encounters with adults. The affidavit revealed that after extensive interviews with K.L., she disclosed multiple individuals involved in some varying degree with her. Eleven individuals confessed to the conduct alleged by K.L.
A jury trial was held on February 13, 2018. The victim, K.L., testified that starting when she was twelve years old, her grandmother, Lee, would ask her to do things with Lee's friends or just men who showed up at Lee's house. K.L. explained that when she turned fifteen years old, Lee started selling her to more men in exchange for methamphetamine, and Lee would then smoke it with K.L. K.L. testified that on one specific occasion, Lee asked K.L. to have sex with thirty-four-year-old Mike Fikes in exchange for methamphetamine. K.L. testified that Lee told her Lee's husband would kick Lee out of the house if she did not get the drugs. K.L. recalled that she, her friend C.G., and Lee were all at Lee's house when Fikes arrived. Lee and Fikes went into a bedroom and then Lee came out and told K.L. to go into the bedroom with Fikes. K.L. did as she was told and went into the room with Fikes where he told her that he would exchange drugs for two hours with her. K.L. originally told him no "because [she] was in a relationship and [she] ended up doing it anyways." After about thirty minutes, K.L. left the room crying, and she told C.G. what had happened. Soon after, Fikes left, and Lee shared the methamphetamine with K.L.
On cross-examination, Lee introduced and played for the jury two video interviews in which K.L. recounted a different timeline of events. In the interviews, she said the encounter with Fikes was consensual and that she enjoyed spending time at Lee's house. On redirect examination, K.L. explained the events leading up to those interviews. She testified that at the time, she was concerned for her baby sister because she had a fever and was not breathing well, but their mother was on drugs and would not take her sister to the doctor. Consequently, K.L. went to the police station and explained the situation and her concerns about her mother. She explained that all she hoped for that day was that her baby sister would get taken care of; she had no desire to discuss the situation at Lee's house.
Next, C.G. testified and corroborated K.L.'s recollection of events that occurred with Fikes. C.G. explained that she did not hear the conversation between Lee and K.L., but K.L. reacted to the conversation as if "she didn't like it." After that conversation, she confirmed that both K.L. and Fikes were in the bedroom alone. According to C.G., while she never saw or knew about a specific exchange for drugs, it was typical for Lee to not have drugs, a man would come over, and then Lee would have drugs. On cross-examination, Lee introduced the statement C.G. made to investigators: "I don't know about Kim Lee trading [K.L.] for sex but I know they both had sex with Matt Campbell."
After the State rested, Lee moved for directed verdict based on insufficient evidence due to the impeachment testimony presented. The circuit court denied the motion. Lee did not call any witnesses and renewed her directed-verdict motion. The circuit court denied that motion as well, and she was convicted of the crime. She now timely appeals.
A directed-verdict motion is a challenge to the sufficiency of the evidence. Snow v. State , 2018 Ark. App. 612, 568 S.W.3d 290, 293. Our test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence that would compel a conclusion one way or the other with reasonable certainty, without relying on mere speculation or conjecture. Id. Circumstantial evidence may constitute substantial evidence to support a conviction if it excludes every other reasonable hypothesis other than the guilt of the accused.
Id. Weighing the evidence, reconciling conflicts in testimony, and assessing credibility are all matters exclusively for the trier of fact. Id.
A person commits the offense of trafficking of persons if he or she knowingly recruits, entices, solicits, isolates, harbors, transports, provides, maintains, or obtains a minor for commercial sexual activity. Ark. Code Ann. § 5-18-103(a)(4) (Supp. 2017). "Commercial sexual activity" means a sexual act or sexually-explicit performance for which anything of value is given, promised, or received, directly or indirectly, by a person. Ark. Code Ann. § 5-18-102(1) (Repl. 2013).
On appeal, Lee asserts that the State's proof that she knowingly recruited, enticed, solicited, or provided K.L. to engage in sexual activity with Fikes in exchange for methamphetamine was circumstantial. To support her argument, Lee questions the credibility and consistency of the witness testimony. She also specifically points to K.L.'s testimony from one of the recorded interviews in which she stated that she felt safe with Lee and that she did not smoke with Lee because they were family. We do not agree.
Based on K.L.'s testimony and C.G.'s testimony, we conclude that there was sufficient evidence that Lee knowingly provided K.L. to Mike Fikes in exchange for methamphetamine. Essentially, Lee is requesting this court to reweigh the evidence, which we will not do. E.g. , Drennan v. State , 2018 Ark. 328, at 6, 559 S.W.3d 262, 266. We will disregard testimony that the fact-finder has found credible only if it is so inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ about it. Hillman v. State , 2019 Ark. App. 89, 569 S.W.3d 372, 375-76. Such is not the case here.
In reviewing this sufficiency challenge, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id. The jury was free to weigh inconsistencies and resolve questions of conflicting testimony. Id. Under this standard of appellate review, we hold that there is substantial evidence to support the jury's verdict that Lee was guilty of human trafficking. Accordingly, we affirm.
Affirmed.
Harrison and Whiteaker, JJ., agree. | [
81,
-20,
-19,
-100,
28,
-79,
106,
56,
50,
-25,
-76,
-45,
41,
-60,
4,
123,
-87,
127,
68,
97,
-14,
-77,
21,
97,
-46,
-77,
104,
-62,
50,
75,
-84,
-3,
25,
112,
-50,
85,
38,
-64,
-17,
90,
-118,
9,
-117,
98,
90,
-125,
46,
115,
43,
14,
113,
-114,
-78,
105,
63,
74,
107,
108,
-15,
-65,
-56,
37,
26,
-41,
-87,
4,
-93,
38,
-97,
13,
-24,
102,
-44,
48,
0,
-24,
-13,
-106,
-128,
100,
77,
-117,
13,
32,
-14,
32,
29,
-59,
36,
-64,
-85,
126,
-67,
-121,
88,
-23,
65,
76,
-65,
-44,
100,
82,
42,
-14,
-97,
4,
97,
104,
-53,
-50,
-68,
-103,
13,
49,
-60,
-69,
-5,
-83,
51,
101,
-51,
102,
118,
86,
123,
-125,
-113,
-77
] |
RITA W. GRUBER, Chief Judge
Appellant Nikki Wright appeals from an order of the Sebastian County Circuit Court terminating her parental rights to DW, born 12/30/2015. On appeal, appellant contends that (1) the trial court abused its discretion in denying appellant's motion for continuance, and (2) the trial court erred in finding that termination of appellant's parental rights was in the best interest of DW. We disagree and affirm.
On September 1, 2016, the Arkansas Department of Human Services (DHS) exercised an emergency hold on DW. In a petition for emergency custody and dependency-neglect filed September 6, 2016, DHS alleged that DW was dependent-neglected as defined by Ark. Code Ann. § 9-27-303 (Supp. 2017). The affidavit in support of the petition alleged that DHS received a referral for failure to protect stating that appellant smokes "meth" around DW and takes DW "on service calls for prostitution." The affidavit further alleged that a DHS investigation occurred on September 1, 2016, which revealed the following: appellant had been working as a stripper at a gentlemen's club; she had multiple online ads on " 'Backpage' aka Fort Smith Backpages online," a medium known for advertising escort services and prostitution; the home was cluttered with pornographic DVDs, Playboy magazines, and sexual paraphernalia within arm's reach of a child; there were small baggies all over the floor and a glass orange "meth" pipe; appellant tested positive for meth and THC; appellant stated the last time she consumed both was a week prior with DW's father; appellant stated DW's father had beaten her; appellant indicated she had given custody of DW to her mother by signing a form from the internet; appellant's mother arrived during the investigation and was arrested for narcotics; and appellant was arrested for possession of drug paraphernalia and endangering a minor. DHS exercised a seventy-two-hour-hold on DW.
On September 6, 2016, the court granted the petition for emergency custody, and a probable-cause hearing took place September 7, 2016. The court found that there was probable cause that the emergency conditions that necessitated the removal of DW continued and that it was necessary for DW to remain in the custody of DHS based on parental unfitness because of appellant's drug use. On October 26, 2016, the court conducted an adjudication hearing and found that the allegations were true, specifically finding that DW was dependent-neglected due to parental unfitness and neglect due to appellant's drug use. The court set the goal of reunification and ordered that appellant have supervised visitation once a week. The court also provided that if the genetic testing showed that the putative father, Colby Bullington, is the biological father of DW, DHS had discretion to schedule visits between Bullington and DW. Appellant was ordered to obtain and maintain safe, stable, and appropriate housing; obtain and maintain verifiable employment and income sufficient to support the family; provide documentation of her income to DHS and of appropriate and safe transportation; comply with random drug screens, alcohol swabs, and hair-follicle tests; attend and complete a psychological evaluation and comply with recommendations; attend and complete parenting classes and provide proof of completion to DHS; visit DW regularly and appropriately; keep DHS apprised of her updated contact information; and inform DHS of any significant life changes. A review hearing was set for February 22, 2017. The order from the October 26 hearing was filed November 29, 2016.
Following a review hearing on March 10, 2017, the court found that appellant had partially complied with the court orders and case plans:
Specifically, the Court finds the mother has: failed to maintain housing, the mother has only recently moved into a new residence in her mother's name; failed to obtain transportation, the mother has a suspended license, but she is still driving and has been arrested for driving with a suspended license; failed to obtain stable employment and has reported several employers in the past few months; the mother is participating in drug court, but has been late and has had to serve 24 hours in jail because of that; has complied with a drug and alcohol assessment and treatment and is complying with parenting and domestic violence classes, although it is reported that the mother arrives late, leaves early and plays on her phone during her parenting classes.
A permanency-planning hearing was held on August 30, 2017. The court found that Colby Bullington is DW's legal father. The court ordered that the goal of the case be changed to adoption with DHS filing a petition for termination of parental rights. The court found that appellant had partially complied with the case plan but that she was incarcerated at the time of the hearing after multiple drug sanctions; that although she had complied with parenting education, the provider recommended further services due to her behavior and lack of improvement within the course; and that appellant had not visited DW since her incarceration.
The permanency-planning order was entered September 20, 2017. Prior to its entry, DHS filed a petition for termination of parental rights on September 18, 2017. A termination hearing took place on November 29, 2017.
At the hearing, appellant testified that she had been kicked out of drug court for fraternizing with felons and was incarcerated at the time of the termination hearing. She explained that she had been in drug court as a result of the conviction for drug paraphernalia found when DW was taken away. She testified that methamphetamine and weed were her "drugs of choice" and that she and Bullington used to do drugs together. Appellant explained that she and Bullington were no longer in a relationship but that he had been abusive, and sometimes the abuse occurred when DW was present. She tried to leave Bullington, but he would not let her. She said that Bullington had beaten her, including one time with her stripper pole; threatened to kill her; and once threatened to throw DW off a balcony to get appellant to stay.
Appellant testified that she had been incarcerated since April 5, 2017, but had "made parole" and planned to go to OMART and the SWS program. She stated she did not have a place to go when she was released; had not gotten a driver's license and no longer had a vehicle; had not done drugs since DW was taken away; had not completed her parenting classes or domestic-violence classes; and had not visited DW since she was incarcerated in April 2017. Appellant hoped to save enough money during the sixteen-week OMART program to obtain an apartment and get a car. Appellant did not test positive while she was in drug court, and the sanctions she received were for being late and fraternizing. Appellant testified that after her relationship with Bullington ended she began seeing C.J. Holden, who was a pimp. She stated she had an ad for dancing, which ran for a couple of months on "Backpage."
Colby Bullington testified that he was currently incarcerated on a rape charge. Bullington admitted physically abusing appellant about five times. He said he had slapped her and choked her but denied beating her with a pole or threatening to throw DW off the roof or out of the window. Bullington stated that nothing about appellant's lifestyle concerned him except her drug use. He indicated that he was kicked out of drug court because of the rape charge, which he thought he would "beat." He testified that he was sanctioned in drug court for being late, falling asleep in class, and failing two tests.
Melissa Roth, family service worker for DHS, testified that DHS recommended termination of parental rights. She explained that the case had been open for fourteen months and the parents were not ready to have DW at home with them. She stated that appellant had definitely been trying. Roth could not understand how appellant's hair-follicle tests were negative when they included the September 1, 2016 timeframe when appellant admitted using drugs and tested positive on screens the day DW was removed. The last housing reported to Roth was in appellant's mother's name, which Roth did not think was a good situation because if appellant and her mother got into an argument, appellant could be without a residence. Roth testified that appellant had reported multiple jobs and had not been able to show steady income. With regard to transportation, Roth said that appellant did not have a driver's license and actually prolonged a "stay" on her license because she drove to the test. Roth said appellant did attend parenting classes, but the provider recommended further classes. Roth did not have certificates showing that appellant had completed parenting or domestic-violence classes.
Roth's biggest concern was appellant's ability to make good choices, noting that appellant's inappropriate choices put DW in danger. Roth stated that appellant stayed with Bullington even though he was physically violent to both her and DW. Roth testified that appellant had not been able to show stability and self-sufficiency; that DW was two years old and deserved permanency; and that DW should not have to wait longer. Roth explained that DHS offered services, but the parents had not significantly complied. Roth testified that instead of completing their services, the parents made bad choices and both were incarcerated. Roth opined that DW would be placed at risk of physical and psychological harm if returned to the parents and that the parents were in a worse position than they had been at the beginning of the case as they were both incarcerated. Roth testified that the parents had not remedied the conditions that caused DW's removal, and she did not know of any other services that could be offered to the parents to return DW in a time that was appropriate from DW's perspective. Roth indicated that DW was adoptable, had no issues to impede adoption, and had been in a long-term placement. She stated DW deserved permanency and thought it was in DW's best interest for the parental rights to be terminated and DW placed for adoption.
Ruling from the bench, the court terminated appellant's parental rights based on the grounds of failure to remedy, subsequent factors, and aggravated circumstances. The written order was filed April 18, 2018.
I. Denial of Motion for Continuance
At the beginning of the termination hearing on November 29, 2017, appellant asked for a continuance on the basis that she had been approved for OMART, a halfway house. Appellant argued that she should be released from the penitentiary to OMART by the end of the year, which would give her the opportunity to show the court "what she is capable of doing." The court denied the motion on the ground that the case originated in September 2016, nearly fifteen months prior, and something permanent needed to be done, but stated that it might change its decision based on the testimony.
We will not reverse the denial of a motion for continuance absent an abuse of discretion amounting to the denial of justice. Smith v. Ark. Dep't of Human Servs. , 93 Ark. App. 395, 401, 219 S.W.3d 705, 708 (2005). A trial court abuses its discretion when it acts improvidently and without due consideration. Henderson v. Ark. Dep't of Human Servs. , 2010 Ark. App. 481, 2010 WL 2186438. Additionally, in order to prevail on appeal, an appellant must demonstrate prejudice from the denial of a motion for a continuance. Campbell v. Ark. Dep't of Human Servs. , 2016 Ark. App. 146, at 3-4, 2016 WL 815652.
Appellant acknowledges that under normal circumstances she would have a difficult time establishing that the court's denial of the continuance was an abuse of discretion, but she argues that under the facts of this case, the abuse of discretion is "readily apparent" because the trial court failed to enter a written order memorializing its November 29 oral ruling until April 18, 2018. She argues that the trial court denied her request for continuance to complete the four-month OMART program, but then waited over four months to enter its order. She states she was prejudiced by the denial of her motion because the oral ruling had no effect on DW's permanency; thus, the court denied her the chance of receiving continued services, and she was not permitted to demonstrate that she could complete the OMART program to become fit and appropriate to care for DW.
Citing Brown v. Arkansas Department of Human Services , 2016 Ark. App. 455, 2016 WL 5799480, DHS argues there was no abuse of discretion. The appellant in Brown asked for a six-week continuance to attend a drug-treatment program for which he was on a waiting list to attend. We affirmed:
In this case, we hold that the circuit court did not abuse its discretion and that Brown cannot demonstrate prejudice. Brown did not request the continuance until the beginning of the termination hearing, which demonstrated lack of diligence sufficient to support the denial. See Martin v. Ark. Dep't of Human Servs. , 2015 Ark. App. 407, 465 S.W.3d 881. Moreover, there was no prejudice because Brown's past behavior indicated that even if the court allowed a continuance, he was not likely to follow through with all of the steps necessary for reunification. See id.
Brown , 2016 Ark. App. 455, at 4.
In the present case, appellant did not ask for the continuance until the beginning of the termination hearing. Moreover, she requested time to complete a four-month program. Likewise, appellant fails to show prejudice because her past behavior demonstrated a history of noncompliance such that even if the court granted the continuance, she was not likely to follow all the steps necessary for reunification. Roth, the DHS caseworker, thought that being in treatment for four months would prevent appellant from reaching the level of having her own residence or anything of that nature. While appellant thought she would be able to get back to the place she was in before her incarceration, Roth did not think it was realistic based on her being in treatment for four months.
There is no merit to appellant's argument that the court abused its discretion in denying the continuance based on permanency but failing to enter the termination order until four months after the oral ruling. While Arkansas Code Annotated section 9-27-341(e) requires the trial court to enter the termination order within 30 days after the permanency-planning hearing, our case law holds that compliance is little more than a "best practice," the violation of which does not warrant reversal or any other sanction. Blasingame v. Ark. Dep't of Human Servs. , 2018 Ark. App. 71, at 8, 542 S.W.3d 873, 877 (citing Wade v. Ark. Dep't of Human Servs. , 337 Ark. 353, 360, 990 S.W.2d 509, 514 (1999) (holding that failure to file an order within the mandatory time frame does not result in a loss of jurisdiction "because the General Assembly did not provide a sanction for an untimely filing and because there is no evidence that such a result was intended") ). Further, the order of the trial court is simply a written judgment of what the court announced from the bench. Therefore, appellant suffered no real prejudice because the order was entered to show what actually occurred. See Wade , supra.
II. Best-Interest Determination
Appellant does not challenge the grounds supporting termination; she argues only that termination was not in DW's best interest. We review termination-of-parental-rights cases de novo. Wilson v. Ark. Dep't of Human Servs. , 2015 Ark. App. 666, at 7, 476 S.W.3d 816, 821. The trial court must make two findings by clear and convincing evidence: (1) at least one statutory ground must exist and (2) it must be in the child's best interest to terminate parental rights. Ark. Code Ann. § 9-27-341. In making a best-interest determination, the trial court is required to consider two factors: (1) the likelihood that the child will be adopted and (2) the potential of harm to the child if custody is returned to a parent. Smith v. Ark. Dep't of Human Servs. , 2013 Ark. App. 753, at 4, 431 S.W.3d 364, 367. The appellate inquiry is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Brown v. Ark. Dep't of Human Servs. , 2015 Ark. App. 725, at 4, 478 S.W.3d 272, 275. In determining whether a finding is clearly erroneous, we give due deference to the opportunity of the trial court to judge the credibility of witnesses. Greenhill v. Ark. Dep't of Human Servs. , 2017 Ark. App. 194, at 5, 517 S.W.3d 473, 476-77.
Although appellant does not challenge the adoptability factor of the best-interest determination, she does contend that substantial evidence does not support the trial court's finding of potential harm. The trial court found that DW "would be at substantial risk of serious emotional, mental, physical harm if returned to the parents due to the parents' lack of compliance with the case plan and court orders, their instability, and their continued criminal lifestyle."
Appellant argues that the court's finding is not supported by substantial evidence because she tried to comply with the orders and case plan, which was recognized by her caseworker. While there was partial compliance, appellant's caseworker testified that she had not shown stability or improvement but had instead declined during the course of the case. Roth testified that her major concern with appellant was her ability to make good choices. At the time of the termination hearing and fourteen months into the case plan, appellant was incarcerated as a result of drug court sanctions. Although the sanctions were not due to testing positive for drugs, they were the result of appellant's actions of being late and fraternizing with felons. At the hearing, appellant acknowledged she did not have a home, an income, a driver's license, or transportation.
While appellant stated that she had been paroled and planned to enter the four-month OMART program, no evidence was introduced to indicate a definite time frame in which this would occur. Appellant's caseworker indicated that four months would prevent appellant from reaching the level of having her own residence or anything of that nature. While appellant thought she would be able to get back to the place she was in before her incarceration, Roth did not think it was realistic based on her being in treatment for four months. Roth testified that appellant had not been able to show stability and self-sufficiency and that DW was two years old and deserves permanency.
In considering potential harm caused by returning the child to the parent, the trial court is not required to find that actual harm would result or affirmatively identify a potential harm. Gulley v. Ark. Dep't of Human Servs. , 2016 Ark. App. 367, 498 S.W.3d 754 ; Welch v. Ark. Dep't of Human Servs. , 2010 Ark. App. 798, 378 S.W.3d 290. Potential harm must be viewed in a forward-looking manner and in broad terms, including the harm the child suffers from the lack of stability of a permanent home. Robinson v. Ark. Dep't of Human Servs. , 2017 Ark. App. 262, at 5, 520 S.W.3d 322, 325. A parent's past behavior is often a good indicator of future behavior. Hughes v. Ark. Dep't of Human Servs. , 2017 Ark. App. 554, at 11, 530 S.W.3d 908, 914. A parent has an affirmative duty to protect his or her child from harm. Id.
Considering the evidence overall, the potential harm is clear. DW had been in DHS custody for almost fifteen months, and appellant was incarcerated at the time of the hearing, awaiting release to then enter a four-month program. The evidence showed appellant lacked the stability of a home, an income, and transportation. DW would be required to wait until appellant potentially reached a point of stability to care for DW. The intent of the termination statute is "to provide permanency in a juvenile's life in all circumstances where return to the family home is contrary to the juvenile's health, safety or welfare, and it appears from the evidence that return to the family home cannot be accomplished in a reasonable period of time as viewed from the juvenile's perspective." Ark. Code Ann. § 9-27-341(a)(3). Accordingly, based on the potential-harm factor, we cannot say that the trial court clearly erred in finding that termination was in DW's best interest.
Affirmed.
Glover and Murphy, JJ., agree.
The court also terminated the parental rights of Colby Bullington; however, Bullington is not a party to this appeal. | [
-112,
-18,
-3,
108,
58,
-31,
16,
24,
83,
-33,
-25,
-45,
-81,
-26,
20,
121,
11,
15,
117,
105,
-45,
-73,
85,
96,
66,
-13,
-72,
-41,
-13,
75,
-28,
-36,
93,
113,
-114,
85,
70,
-64,
-17,
80,
-126,
1,
-117,
125,
81,
-58,
12,
-69,
26,
14,
53,
-65,
-9,
44,
27,
-53,
44,
78,
91,
-76,
-40,
-24,
-37,
31,
-97,
22,
-127,
52,
-104,
21,
-62,
123,
-100,
56,
1,
-24,
115,
-74,
-126,
100,
71,
-103,
-123,
96,
98,
-126,
-100,
-9,
-68,
-120,
-10,
-66,
-99,
-90,
-102,
57,
11,
9,
-73,
-75,
124,
30,
14,
-6,
106,
47,
119,
-20,
-116,
-50,
82,
-111,
-122,
40,
28,
-77,
-25,
-51,
48,
117,
-61,
-28,
116,
-57,
115,
-101,
-26,
-6
] |
BRANDON J. HARRISON, Judge
Carrie Lucas appeals the circuit court's order granting Tami and Adam Nutts' petition to adopt Lucas's biological daughter, J.N. Lucas argues that the circuit court erred in (1) finding that her consent to the adoption was not required because she failed significantly and without justifiable cause to communicate with J.N. and to provide child support and (2) finding that it was in J.N.'s best interest to grant the petition for adoption. We affirm.
On 19 August 2016, the Nutts petitioned to adopt four-year-old J.N. The petition recited that the Nutts had been appointed guardians of J.N. in November 2013 and that Lucas, the child's mother, had significantly failed, without justifiable cause, to visit or support the child since then; thus, her consent to the adoption was not required. The petition also stated that they were physically and financially able to furnish suitable support and education for J.N. and desired to establish the relationship of parents and child.
In response, Lucas asserted that she had not failed to visit her child without cause and that the Nutts had willfully and intentionally refused contact between her and J.N. Lucas argued that her consent was required for an adoption and that the adoption would not be in J.N.'s best interest.
The circuit court convened a hearing on 7 August 2017. Sherry Gentry, a licensed social worker, testified that she performed a home study on the Nutt household and that the house was suitable and in good shape. She also testified that criminal-background checks and child-maltreatment checks on the Nutts were both clear. Gentry recommended that the adoption be approved.
Tami Nutt testified that she and her husband, Adam, had been married for twenty-one years and had lived in their present home for seventeen years. She said that they have four sons, ages five to twenty, who all live at home. She explained that she first met J.N. in August 2013 while working as a caseworker at a domestic-violence shelter. Lucas and J.N., who was one year old, were staying at the shelter because Lucas was having trouble with her husband, Brad Wells. While she was there, Lucas inquired about adoption agencies and said that she was not ready to be a mom. Lucas told Nutt that she (Lucas) had lived with her parents for the first three months after J.N. was born, but after her parents kicked her out, she lived in an abandoned building for five months. She also stayed on friends' couches. When Lucas arrived at the shelter, J.N. had no clothes that fit her and no shoes. Tami said that Lucas left the shelter around September 2 and asked Tami to take J.N. After speaking with her family, Tami agreed, and both Lucas and J.N. began living with the Nutts. Lucas moved out on October 20 and relocated to Springfield, Missouri. Lucas lived in several different places over the next few years, including at least three shelters in the Springfield area.
Tami testified that after moving, Lucas first visited J.N. approximately seven months later in May 2014. Lucas stayed for one night and did not show much interest in J.N. Her next visit was Easter weekend of 2015, approximately one year later. Again, Lucas was there for one night and did not interact with J.N. Lucas's third visit was in October 2015. Tami said that Lucas did not ask for visitation again until 2017 and that she (Tami) had never denied Lucas visitation. Tami also said that Lucas had never sent a Christmas present, a birthday present, or called J.N. on her birthday. Lucas had offered no financial support for J.N. until early 2017. According to Tami, Lucas did not see J.N. from October 2015 to January 2017; since then, she had seen J.N. four times. Tami also said that there were a few times that Lucas asked to visit but the family already had plans. But she agreed that she had never denied Lucas visitation or the opportunity to speak with J.N.
Tami explained that when J.N. came into her family's care, she did not laugh, did not play, was thin, and was not up to date on her shots. Now, J.N. is outgoing, happy, and on a regular routine for napping, eating, bathing, etc. According to Tami, J.N. thinks that the Nutts are her parents and that their sons are her brothers. J.N. and their five-year-old son are especially close and have "grown up like twins." Tami said that J.N. was her "little girl" and that she did not know what she would do without her. Tami explained that she is currently a preschool teacher and that J.N. and her five-year-old son attend school next door.
On cross-examination, Tami said that Lucas was nineteen years old when she agreed to the guardianship. Tami also explained that she wanted to help Lucas and that she had expected Lucas to regain custody within a year. She agreed that she had told Lucas that she would keep J.N. for as long as it took for Lucas to get back on her feet. She also confirmed that she had taken J.N. to Lebanon, Missouri, to meet Lucas in July 2015.
Adam Nutt testified that he loves J.N. with all his heart and that they enjoy many activities together such as fishing, swimming, and riding the four-wheeler. He also said that he is willing and able to financially support J.N. for the rest of his life. He acknowledged that he had received a ticket for public intoxication two years ago but said he did not have a drinking problem and had no DWIs.
Lucas testified that she currently lives in Branson, Missouri, and that she is employed at Big Cedar Lodge. She explained that when the guardianship was created in October 2013, she did not have a car or any source of income, and she thought the guardianship was in J.N.'s best interest. It was her understanding that the temporary guardianship would allow the Nutts to take J.N. to the doctor and otherwise take care of her while she (Lucas) got back on her feet. Lucas agreed that Tami had not stayed in touch with her or made any effort to make sure she and J.N. had time together. She acknowledged that in the first half of 2014, she did not have a job and was living in women's shelters in Springfield. She recalled visiting J.N. "between May and July in 2014" but did not remember if she visited in October. She said that she called the Nutts "once or twice" in 2014 to speak to J.N. According to Lucas, she said something to Tami about wanting J.N. back in November 2015, and Tami said she (Lucas) was no longer welcome to stay with them during visits. Lucas said she thought she visited in January 2016 but was not sure. She denied ever going a full year without seeing J.N. and agreed that she had the feeling that Tami was making it difficult to see J.N. She also said the Nutts had never requested financial support but that she offered support sometime in 2016. Lucas stated that she always brought J.N. little gifts and had bought J.N. a tablet, some stickers, and a bracelet. She agreed that she was physically, mentally, and financially able to take care of J.N. and that she had family nearby to help her. Lucas said that granting the adoption was not in J.N.'s best interest because she loved and missed her daughter and "she needs the love of her real family in her life."
On cross-examination, Lucas said that she believed she had seen J.N. more than four times prior to 2017, but she had no proof of that or proof of any specific visit that was denied by the Nutts. She agreed that she had access to reliable transportation for the past three years. Upon questioning by the court, Lucas agreed that she worked fulltime in 2015 and 2016 and explained that she had not petitioned to terminate the guardianship at that time because she did not know it was a permanent guardianship. "I thought all I needed to do was just go visit a few times and then tell them that I was going to bring her back up here to live with me." She also stated that she did not pay any support because she "figured they would ask me if they needed anything." She then agreed that she knew she should be paying money to support J.N. but said, "I didn't think about it, I guess."
At the end of the hearing, the circuit court made the following findings:
[C]onsent to an adoption is not required of a parent of a child in the custody of another if the parent for a period of at least one year has failed significantly without justifiable cause to communicate with the child. I find that I have to look and listen to the parties who testified, and there is some slight issue in that area. The Nutts are certain that during 2016 there was no visitation for twelve months or more. Carrie Lucas on the other hand says that might not be true but her recollection is extremely vague and she does not deny the truth, but says she thinks it might not be correct. And referring to the visitation, what I observed about that visitation is at least during the first couple of years Mr. and Mrs. Nutt went out of their way to try to assist Carrie Lucas with visitation. ... And they even allowed her to stay in their home through November of 2015. ... The visitations were sporadic. Oftentimes Carrie Lucas was late, and by just fifteen or twenty minutes. ... That doesn't show a lot of regard for the people that are helping her with her children. It doesn't even show regard for the child. That is not a good indication of a mother that is really sincere about doing the right thing by her child.
I then look at the obligation that a parent has to provide for the care and support of the child as required by law or judicial decree. And if they don't do that, they waive the right to just say I won't consent and stop the adoption. In this situation, in 2015 and 2016 there was income coming in. Certainly, it wasn't a lot of money. And even the first year she didn't have a car. She did the last year. But even then when she's got a car that's running, she's got income coming in, she's got relatively low rent, she could have sent some money. It might not have been a whole lot, but it's the kind of thing the law requires, and it's the kind of thing the Court expects out of concerned parents to reflect on your obligations as a parent.
The court found that while Lucas had improved her situation, she did not have the ability to provide a stable home, she had not recognized her financial obligations, and "visitation was less than I believe [she] should have had." The court concluded:
If I grant the adoption, I know the child will be in a loving, stable home ... I don't want this child to be in a continuing situation where there's no finality.... [W]hen it comes down to the best interest of the child, I've got to do what I think is the right thing, and that is I find myself deciding that [J.N.] is best off remaining with Mr. and Mrs. Nutt.
In its written order, the circuit court found that Lucas had failed significantly to visit and support her child for at least one year and that her consent to the adoption was not required. The court also found that the Nutts "are morally fit to have the custody of the child and [are] physically and financially able to furnish suitable support, nurture, and education for the child" and that it was in J.N.'s best interest that the adoption be granted. Lucas has appealed the circuit court's order.
On appeal, Lucas argues that the circuit court erred in finding her consent to the adoption was not required because she failed significantly and without justifiable cause to communicate with J.N. and to provide child support. She also argues that the circuit court erred in finding that it was in J.N.'s best interest to grant the petition for adoption.
I. Consent
Adoption statutes are strictly construed, and a person who wishes to adopt a child must prove that consent is unnecessary by clear and convincing evidence. Racine v. Nelson , 2011 Ark. 50, 378 S.W.3d 93. Clear and convincing evidence is defined as that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Posey v. Ark. Dep't of Health & Human Servs. , 370 Ark. 500, 262 S.W.3d 159 (2007). A circuit court's finding that consent is unnecessary because of a failure to support or communicate with the child will not be reversed unless clearly erroneous. Racine, supra. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Norton v. Ark. Dep't of Human Servs. , 2017 Ark. App. 285, 2017 WL 1948236. In resolving the clearly erroneous question, the reviewing court defers to the circuit court because of its superior opportunity to observe the parties and to judge the credibility of witnesses. Brumley v. Ark. Dep't of Human Servs. , 2015 Ark. 356, 2015 WL 5895440.
Arkansas Code Annotated section 9-9-207(a)(2) (Repl. 2015) provides that a parent's consent to adoption is not required of
a parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree.
"Failed significantly" does not mean "failed totally." Racine , 2011 Ark. 50, at 12, 378 S.W.3d at 100 (citing Pender v. McKee , 266 Ark. 18, 582 S.W.2d 929 (1979) ). It only means that the failure must be significant, as contrasted with an insignificant failure. Id. It denotes a failure that is meaningful or important. Id. Justifiable cause means that the significant failure must be willful in the sense of being voluntary and intentional; it must appear that the parent acted arbitrarily and without just cause or adequate excuse. Courtney v. Ward , 2012 Ark. App. 148, 391 S.W.3d 686. Also important to note is that the one-year period may be any one-year period, not merely the one-year period preceding the filing of the petition for adoption. In re Adoption of A.M.C. , 368 Ark. 369, 246 S.W.3d 426 (2007).
A. Failure to Communicate
Lucas first asserts that the one-year period after which a parent may lose his or her right to consent to the adoption must accrue before the petition for adoption is filed. Manuel v. McCorkle , 24 Ark. App. 92, 96, 749 S.W.2d 341, 343 (1988). The guardianship was granted in November 2013; it is undisputed that Lucas saw J.N. in May 2014, April 2015, July 2015, and October 2015; and the adoption petition was filed in August 2016. Thus, she argues, there was never a period of one year before the filing of the petition that Lucas did not see her child.
Lucas further argues that even if the Nutts had proved that she failed to communicate with J.N. for more than one year, that failure would have been justifiable. She admits that she struggled throughout 2014 but by the end of 2015, she had a job, a vehicle, and broached the subject of returning J.N. to her custody. At that point, Tami said that Lucas was no longer allowed to stay in their home during visits, and Lucas was not able to coordinate another visit until after the adoption petition had been filed. Lucas had also testified that Tami made it difficult to have visits even before the petition was filed. Lucas argues that "[t]he fact that she managed to visit as much as she did, despite her poverty, emotion[al] turbulence, and the wary hostility of Mrs. Nutt, indicates a great effort on the part of Ms. Lucas to remain in her child's life as much as she possibly could."
In response, the Nutts argue that the evidence showed that in the nearly three years between when the guardianship was granted and the petition to adopt was filed, Lucas visited only three times, did not send Christmas or birthday presents or cards, and called only a few times. The Nutts assert that this very limited contact constitutes a significant failure to communicate with J.N. They also disagree that such a failure was justified for financial reasons, as the evidence showed that Lucas had been employed and had a vehicle for at least two years prior to the hearing, and she had sufficient funds to hire an attorney.
As noted above, "failed significantly" does not mean "failed totally." Racine, supra. Lucas's argument focuses on whether she failed to see J.N. at all for any twelve-month period. But even conceding that Lucas may not have gone a full twelve months without seeing J.N., we hold that the circuit court did not err in finding that three or four visits between November 2013 and August 2016, and perhaps a few phone calls, was still a significant failure to communicate. We also hold that the circuit court did not err in finding that failure unjustifiable, as Lucas was employed and had a vehicle for at least two years before the commencement of the adoption proceedings. Even if Lucas could not visit in person, she could have called or sent letters or cards. Because we find no error on this point, we need not reach Lucas's argument regarding failure to provide support.
II. Best Interest
A circuit court's decision regarding the best interest of a child to be adopted will not be reversed unless it is clearly against the preponderance of the evidence, giving due regard to the opportunity and superior position of the circuit court to judge the credibility of the witnesses. Sanders v. Savage , 2015 Ark. App. 461, 468 S.W.3d 795. We give great weight to a circuit court's personal observations when the welfare of young children is involved. Id.
Lucas asserts that even if the Nutts had proved that her consent was not required, they failed to prove that the adoption was in J.N.'s best interest. Lucas cites Hollis v. Hollis , 2015 Ark. App. 441, 468 S.W.3d 316, in which this court affirmed the denial of an adoption petition. In finding that the child's father and stepmother had failed to prove by clear and convincing evidence that adoption by the stepmother was in the child's best interest, the circuit court found that the mother's failure to provide care and support had been due, in part, to financial hardship, which the mother was curing. In addition, the mother had attempted to send money orders, albeit to the wrong address, and the child had a loving relationship with his maternal grandmother. This court held that the evidence demonstrated that the mother had made significant strides to improve her life and her relationship with the child, and giving due regard to the circuit court's credibility determinations, this court found that the circuit court's denial of the adoption was not clearly erroneous.
Lucas argues that this reasoning is on point with the case at bar. She asserts that although the circuit court did not find that Lucas was justified in failing to support J.N., it should have, and that Lucas has made significant improvements in her life. Lucas contends that, at best, the Nutts presented evidence that the guardianship was still necessary, but not that the relationship of mother and child should be legally severed.
The Nutts respond that the evidence that the adoption was in J.N.'s best interest was overwhelming. They cite J.N.'s progress and happiness since coming into their care and note that Lucas's only argument against best interest was that "[J.N.] needs the love of her real family in her life." The Nutts cite Lucas v. Jones , 2012 Ark. 365, 423 S.W.3d 580, in which a biological mother appealed the adoption of her daughter by her parents (the child's maternal grandparents) and argued that the grandparents "already had custody of the child under the guardianship order and that an adoption would not work a change in the status quo." Id. at 11, 423 S.W.3d at 586. In affirming the adoption, our supreme court held:
The evidence indicates that J.J. was faring well in appellees' care, and she was described as a "happy little girl." Now, age six, J.J. had lived with appellees since she was two years old. As the circuit court noted, appellees stepped into the breach to provide a home for the child. By contrast, appellant is a virtual stranger to her. Appellant's argument that an adoption was not necessary overlooks that an adoption would add certainty and permanency to the child's life.
Id. at 11-12, 423 S.W.3d at 586-87. Likewise, the Nutts contend, J.N. has been in their custody since she was one year old and is happy and healthy, and Lucas is a virtual stranger to her. The adoption allows certainty and permanency in J.N.'s life and was in her best interest.
We hold that the circuit court's best-interest determination was not clearly against the preponderance of the evidence. The Nutts are the only family J.N. has ever known, and J.N. has no real relationship with either Lucas or other members of Lucas's family. By granting the adoption, the circuit court has correctly and permanently placed J.N. with her "real family."
Affirmed.
Virden and Klappenbach, JJ., agree.
While the September 2017 order is an interlocutory decree of adoption, and the court entered a final decree of adoption approximately seven months later, Lucas was not required to amend her notice of appeal. Any decree of adoption is a final decree, whether it is interlocutory or final, if no subsequent hearing is required by the terms of that decree. In re Adoption Orders , 277 Ark. 520, 642 S.W.2d 573 (1982). | [
-48,
104,
108,
60,
58,
0,
3,
46,
-45,
-101,
-29,
83,
-25,
78,
28,
107,
-103,
53,
1,
121,
-45,
-77,
79,
97,
-48,
-14,
-71,
-42,
-80,
121,
117,
119,
8,
48,
-118,
-43,
98,
-53,
-81,
-48,
-124,
-105,
43,
-91,
17,
66,
42,
99,
18,
15,
117,
46,
-109,
-86,
61,
66,
-86,
110,
59,
-71,
-36,
-28,
-113,
6,
-36,
42,
-79,
52,
-109,
-127,
72,
42,
-104,
-108,
-120,
-23,
83,
-76,
-102,
118,
75,
-87,
9,
117,
119,
32,
12,
-11,
121,
24,
-50,
78,
-67,
-90,
-47,
65,
67,
36,
-75,
-4,
100,
16,
46,
120,
58,
76,
92,
-28,
-84,
-114,
-42,
-71,
-115,
-16,
-120,
3,
-29,
68,
34,
113,
-37,
112,
117,
5,
61,
19,
-105,
-6
] |
For his sole point of appeal, Alandt contends the trial court erred in failing to grant his motion to modify the November 20, 2017 amended sentencing order to reflect that he could later petition to seal his record. The second amended sentencing order was filed after Alandt filed his brief and before the State filed its brief. In its brief, the State contends that the entry of the second amended nunc pro tunc sentencing order on June 21, 2018, rendered this appeal moot because it provided that Alandt could later petition to have his record sealed. We agree.
As a general rule, our appellate courts will not review issues that are moot. Trujillo v. State , 2016 Ark. 49, 483 S.W.3d 801. To do so would be to render advisory opinions, which this court will not do. Id. A case becomes moot when any judgment rendered would have no practical legal effect upon a then existing legal controversy. Id. Two exceptions to the mootness doctrine have been recognized: 1) issues that are capable of repetition yet evade review and 2) issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. Id.
In Matlock v. State , 2017 Ark. 175, at 2, 518 S.W.3d 79, 80-81, our supreme court explained:
A circuit court has the power to correct clerical errors nunc pro tunc so that the record speaks the truth. Pursuant to Rule 60(b) (2016) of the Arkansas Rules of Civil Procedure, a trial court may at any time correct clerical mistakes in judgments, decrees, orders, or other parts of the record and errors therein arising from oversight or omission. A true clerical error is one that arises, not from an exercise of the court's judicial discretion, but from a mistake on the part of its officers. ...
A trial court maintains jurisdiction after a record is lodged on appeal to correct a judgment to speak the truth. (Once an appeal has been lodged, a trial court loses jurisdiction except to correct a judgment to speak the truth.) Generally, an issue becomes moot when any judgment rendered would have no practical effect upon a then existing legal controversy. ... Because the trial court maintained jurisdiction to enter the second amended order that provided Matlock with the remedy he sought in this appeal and because the State concedes that Matlock is entitled to the jail-time credit set forth in the second amended order, the question on appeal in now moot.
Here, the appeal fits squarely within the mootness doctrine, and neither of the exceptions is applicable. The second amended nunc pro tunc sentencing order entered on June 21, 2018, provides the very thing Alandt contends the trial court erred in omitting in the November 20, 2017 amended sentencing order. Deciding this issue will have no practical legal effect because it has already been done. We therefore dismiss this appeal because the issue raised is moot.
Dismissed.
Vaught and Hixson, JJ., agree. | [
16,
-24,
-35,
63,
-22,
64,
50,
-100,
64,
-125,
71,
115,
-81,
-109,
20,
123,
-93,
123,
101,
105,
78,
-74,
6,
65,
103,
-14,
-37,
86,
-11,
-49,
110,
-102,
76,
-16,
-126,
-43,
68,
-61,
-57,
86,
-18,
6,
-102,
71,
113,
-113,
48,
32,
18,
-113,
49,
-66,
-29,
41,
23,
67,
105,
40,
89,
-70,
80,
-103,
-104,
13,
123,
4,
-95,
36,
-102,
6,
80,
44,
-100,
57,
11,
-2,
115,
-106,
-126,
85,
109,
27,
-83,
118,
98,
-119,
125,
-17,
-95,
-120,
63,
63,
13,
-25,
-102,
81,
107,
5,
-122,
-43,
126,
54,
46,
126,
-19,
-108,
84,
108,
0,
-85,
-108,
-77,
61,
76,
-124,
3,
-53,
-61,
16,
116,
-51,
-26,
92,
70,
51,
-37,
-18,
-112
] |
KENNETH S. HIXSON, Judge
Appellant Eric Jamar Carter appeals after he was convicted by a Hot Spring County Circuit Court jury of rape and was sentenced as a habitual offender to serve a total of 480 months' imprisonment. On appeal, appellant contends that (1) the trial court erred by denying his motion for directed verdict; (2) the trial court erred in admitting evidence of prior rapes that he was alleged to have committed pursuant to Arkansas Rule of Evidence 404(b) (2017); and (3) the trial court erred in denying his motion for mistrial after the prosecutor spoke to members of the jury during a trial break. We affirm appellant's conviction but remand to the trial court with instructions to correct the sentencing order.
I. Relevant Facts
In summary, appellant was charged and subsequently convicted as a habitual offender for raping T.S., a thirty-one-year-old woman with learning disabilities and characteristics of autism spectrum disorder, in violation of Arkansas Code Annotated section 5-14-103 (Supp. 2017). Appellant had previously lived at T.S.'s address before she had moved to that address from Alaska. On April 20, 2016, appellant went to T.S.'s home around midnight, and she invited him inside. After she asked him to leave, he refused. He pinned T.S. to the sofa and held her arms behind her back as she yelled for him to leave. While he held her down over the sofa, appellant penetrated T.S.'s vagina from behind with his fingers and then his penis. T.S. additionally sustained an injury to her shoulder, and there was a bite mark on her right breast. T.S. subsequently reported the incident to police after her mother came from Alaska to check on her in June 2016.
Before trial, the State filed a preliminary motion to determine the admissibility of testimony regarding two other rapes that appellant had allegedly committed in a similar manner. The State alleged that the testimony was admissible under Arkansas Rule of Evidence 404(b) as it was introduced as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Appellant filed a response alleging that the evidence was irrelevant, that the probative value was substantially outweighed by the danger of unfair prejudice, and that the alleged rapes were too separated in time, making them unduly remote and therefore inadmissible. A hearing was held on June 26, 2017.
At the hearing, H.W. testified that appellant approached her on the evening of March 11, 2014, when she was walking home from work in Malvern, Arkansas. She had stopped to rest on the church steps because she was ill with bronchitis. Appellant demanded that she come with him, and when she refused, he grabbed her by the arm and forced her down the steps with him. H.W. explained that appellant dragged her across the street to a row of houses. At one point, appellant allowed her to answer her phone when one of her friends, Laycon Clark, called her. She was able to provide Clark with some detail to be able to find where she was by lying to appellant that she was giving her friend directions to someone else's home. Appellant subsequently took her into the mud room of one of the houses, pinned her against the wall, and penetrated her vagina with his fingers. After he pulled out a knife and warned her not to try anything, he released her arm and penetrated her vagina with his fingers a second time. When H.W. recognized Clark's vehicle passing by the house, she kicked appellant in the groin and escaped. H.W. testified that she waited until the next day to report the incident to law enforcement.
Breanna Turner and Laycon Clark testified that they were H.W.'s coworkers and that they were looking for H.W. on the night of the incident. Turner explained that when she was driving home after work, she saw H.W. walking home. Although Turner attempted to get her attention, she was unable to do so. Instead, she called Clark to see if Clark had H.W.'s phone number so that she could offer H.W. a ride home. Later, Turner met up with Clark, and they both started driving around to find H.W. Clark testified that she eventually was able to reach H.W. on the phone. Thereafter, she was able to find H.W., and H.W. ran and jumped into her car. Clark observed that H.W. was breathing heavily and was very upset.
Lieutenant Dorata Delacruz testified that he had participated in the investigation after H.W. reported the incident to law enforcement. Based on H.W.'s description of the man, law enforcement prepared a photograph lineup of six individuals, one of them being appellant. H.W. identified appellant as the man who had assaulted her. Lieutenant Delacruz testified that there were reports that H.W. occasionally had episodes of sleepwalking; however, H.W. testified that she was not asleep during her encounter with appellant. Lieutenant Delacruz further testified that he had interviewed appellant during the investigation. The video of that interview was played for the court and admitted into evidence.
During that interview, appellant denied the allegations. At first, appellant told Lieutenant Delacruz that he did not see any girl on the night of the incident while he was exercising and walking in the area where the alleged incident had occurred. Later, however, appellant admitted that he saw a girl in a car who was looking for a friend. After he subsequently saw another girl during his walk, he told the second girl that he thought someone was looking for her. He further explained that the second girl walked behind him and had a conversation with him for a little bit. He denied grabbing the second girl and instead claimed that she ran off after he told her that he thought the people in the car and the police were looking for her.
C.R. testified that she had reported to law enforcement that she had been raped by appellant in April 2014. She has an eye disease, keratoconus, and is unable to see very well. On the night of the incident, C.R. was at her apartment with her boyfriend, Tommy White, and her three children, who were asleep. Appellant, identifying himself as "Lazy," had walked down the street and started a conversation with them. Eventually, C.R. and White invited appellant inside. After thirty or forty-five minutes, White left to go to the store to buy cigarettes, and appellant left at the same time and started walking away. A few minutes later, C.R. answered the door after she heard a knock. C.R. testified that appellant was at the door. Although she told appellant to leave, appellant refused to do so and entered the apartment. Eventually, appellant pushed C.R. and pinned her down and bent her over onto a television stand. He pulled her pajama pants down and proceeded to rape her by first sticking his fingers and then his penis into her vagina. He fled the apartment when White's headlights appeared in the front window. Subsequently, appellant returned to the apartment, and White struck appellant with a flashlight. C.R. reported the incident to law enforcement the next morning. She admitted that she did not call law enforcement the night of the incident because they had been using drugs that night.
White testified at the hearing and corroborated C.R.'s version of events. Furthermore, Trooper Kyle Sheldon and Sergeant Frazier Ford testified that they had investigated the incident after it was reported. Sergeant Ford testified that he had previously heard the nickname "Lazy" being associated with appellant. He presented a photograph lineup, and both White and C.R. identified appellant.
Jessica Jackson, one of C.R.'s neighbors and appellant's cousin, testified that she did not believe C.R. had been raped. Her stories to law enforcement and to the court were inconsistent as to the noises she heard from C.R.'s apartment.
After the hearing, the trial court filed a written order granting the State's motion and ruling that the evidence was admissible. In relevant part, the trial court made the following findings:
1. Witness H.W. testified to an incident during which a person she later identified as Eric Carter forced her to walk with him, led her to a dark alcove of an unoccupied house and forcibly put his hands down her clothing and into her vagina. Other witnesses including L.C. and B.T. as well as Dorata Delacruz of the Malvern Police Department testified to other circumstances surrounding the event and the criminal investigation.
2. Witness C.R. testified to an incident during which a person she later identified as Eric Carter forcibly raped her in her apartment a short time after she and her boyfriend, T.W. met him. T.W. and J.B. testified to other circumstances surrounding the event and Officer Frazier Ford of the Malvern Police Department and Trooper Kyle Sheldon of the Arkansas State Police testified to the criminal investigation.
3. The Court finds that the events described by the above witnesses are sufficiently similar to the allegations raised by T.S. in the case in chief to make their testimony relevant pursuant to Rule 404(b) and that their testimony will be admissible at the trial of the Defendant and may be used to establish the Defendant's intent, motive, opportunity, preparation, or plan in the rape of T.S.
4. The Court further finds that the State's Motion to Admit Evidence under Rule 404(b) pertaining to H.W. and C.R. is granted and that the Defendant's motion to exclude the 404(b) evidence is denied as the court also finds that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or of misleading the jury.
5. Either party may raise this issue of admissibility again at trial should the primary victim's testimony differ at trial from what is currently anticipated based on the 404(b) motion and the information and affidavit filed by the State.
At trial, Jackie Simineo, T.S.'s mother, testified that T.S. has a learning disability and the I.Q. of a first grader. Simineo received legal guardianship of T.S. when T.S. turned eighteen. Although T.S. had lived in Alaska where Simineo resides, T.S. moved to Arkansas after Simineo had purchased a home for her. T.S. was taking care of her daily living needs, and Simineo was visiting in person about every three to six months in addition to regular video chatting. During Simineo's June 2016 visit, T.S. showed her a bite mark, and Simineo observed that T.S.'s behavior had changed. Simineo explained that T.S. now acts afraid that something bad will happen to her again.
Regina Weiner, a licensed psychological examiner, testified that she had evaluated T.S. During the interview, Weiner observed that T.S. operated with a high level of anxiety. T.S.'s I.Q. was assessed at 46 for nonverbal, 43 for verbal, and 42 for full scale. A standard I.Q. is between 85 and 100. Regarding T.S.'s ability to describe an event that she experienced, Weiner indicated that T.S. was able to describe it using her own words and to tell you what happened. However, she may tell it out of order or have some problems explaining how many times something had happened. Weiner further testified that T.S. has characteristics of autism spectrum disorder. In terms of whether T.S. could give reliable testimony, Weiner opined that T.S. was able to talk, able to remember things that had happened to her, and not likely to deliberately lie. However, T.S. may have things confused and may not express herself well using her language skills. Therefore, Weiner opined that one may need to additionally corroborate her statements with other testimony and other forms of evidence.
T.S. testified that she was thirty-two years old at the time of trial. She identified appellant in the courtroom and testified that he had raped her at her home on the night of April 20, 2016. Prior to the rape, appellant had previously visited T.S. alone and had taken her to various locations, including the water department, in his gray car. She indicated that appellant had her hold his mail for him because appellant had previously lived at the home before she had moved there. T.S. additionally recalled a previous incident in which appellant took her to a cabin and showed her a "sex movie." Although appellant encouraged T.S. to touch his penis, T.S. refused and made him take her home. T.S. explained that on the night of the rape appellant had parked his car at her home. She told him to leave; however, appellant had told her that it was his home. T.S. testified that appellant had bitten her on her right breast and dug his fingernails into her left arm. Appellant pinned her over the couch and penetrated her vagina with his fingers and his penis. T.S. also testified that appellant had touched her anus. During the rape, appellant asked T.S. if she liked it and threatened her not to tell anyone of the rape or he would kill her.
Sharon Scheel testified that she lived across the street from T.S. Scheel testified that T.S. was friendly and "mentally challenged." Scheel explained that she felt like she was putting puzzles together during conversations with T.S. Scheel testified that T.S. had seemed upset and told her about a sexual assault that occurred in April 2016. T.S. had also shown her the bite mark that was infected at that time. Scheel additionally had observed some bruises on T.S.'s arms. Although Scheel did not call the police after their conversation, she encouraged T.S. to do so. Finally, Scheel testified that she had seen appellant walking in the area on more than one occasion but stated that she had not personally observed appellant at T.S.'s home.
Donald Jordan testified that he also lived in a home across the street from T.S. Jordan explained that he had gotten to know T.S. since she moved in and has learned to understand her speech better over time. He would also assist her with her yard work. Although T.S. had never told him about the rape prior to law enforcement's investigation, he noticed that her behavior had changed after April 2016. She would not talk to him or answer the door as she usually had. After law enforcement started investigating, T.S. told him about the rape.
Jordan additionally testified that appellant had lived in T.S.'s home before she had moved there. He further testified that he observed appellant alone at T.S.'s home on at least three occasions after T.S. had moved there. On one occasion, appellant approached T.S.'s driveway while Jordan was there. Appellant told Jordan that he was interested in the truck parked in the driveway, and Jordan told him that the truck was not for sale. Appellant further learned on that occasion that T.S. had lived alone. On other occasions, Jordan observed appellant's wife at the home as well. Although he was not certain of the exact date, Jordan observed appellant's car outside T.S.'s home around midnight in April 2016.
Chasity Siratt testified that she previously was employed by the Malvern Police Department as a police-service representative. During her employment, she photographed the alleged bite mark on T.S.'s right breast, and the photographs were admitted into evidence. Officer Jack Seely testified that he was present when T.S. and her mother reported the rape and that his body camera recorded the interview. The video of the interview was played for the jury without objection.
After a break during the trial, an in-chambers conference was held. Defense counsel moved for a mistrial. According to defense counsel, during the break, the prosecutor had commented in front of the jury that he was getting a piece of candy to get his blood sugar up. Defense counsel argued that it was improper for the prosecution to say anything to the jury. The trial court denied the motion for mistrial, and the trial continued.
Sergeant Frazier Ford testified at trial that he was involved in the investigation of T.S.'s allegations. During the investigation, T.S. identified appellant from a group of six photographs. Sergeant Ford further testified that T.S. was able to show him the route that appellant had taken when he drove her to the water department as she had alleged. He additionally testified that one of appellant's cars was either gray or silver.
Mona Simms testified that she is a nurse practitioner and treated T.S. in February 2017 for pain in her shoulder. T.S. indicated that her shoulder had bothered her ever since the rape. Simms explained that T.S. was tearful and upset when explaining her injury and the incident that had caused the injury.
Before the jury heard any of the relevant Rule 404(b) evidence, appellant renewed his previous objection, which the trial court denied. The jury was instructed that the evidence of any other alleged crimes, wrongs, or acts of appellant may not be considered to prove the character of appellant in order to show that he acted in conformity therewith. The jury was further instructed that the evidence was not to be considered to establish a particular character trait that appellant had or to show that he acted similarly on the day of the incident. The jury was told that the evidence was merely offered as evidence of intent, motive, opportunity, preparation, or plan and that it was up to the jury to determine whether any of the other alleged crimes, wrongs, or acts had been committed. Thereafter, C.R., Tommy White, Trooper Kyle Sheldon, Sergeant Frazier Ford, Breanna Turner, Laycon Clark, H.W., and Lieutenant Dorata Delacruz testified consistent with their testimony at the preliminary hearing.
After the State rested, defense counsel moved for a directed verdict, arguing that T.S.'s testimony was unreliable. However, the trial court denied the motion.
Shanah Nolen testified on appellant's behalf. She explained that she had known appellant for twelve years and that they have one child together. Nolen testified that she did not know T.S.; however, she admitted that she and appellant had formerly lived at the address where T.S. was then living. She further admitted that she and appellant had gone to the address twice to collect their mail in April 2016. The second time they went was after T.S. had called her phone. Nolen alleged that on both occasions she had stayed in the car while appellant went to the door to collect the mail. Finally, Nolen testified that neither she nor appellant had been back to the address since those two times.
At the conclusion of the testimony, defense counsel renewed his motion for a directed verdict. The trial court denied the motion. The jury found appellant guilty, and he was sentenced in accordance with its recommendation. This appeal followed.
II. Sufficiency of the Evidence
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Hinton v. State , 2015 Ark. 479, 477 S.W.3d 517. When reviewing a challenge to the sufficiency of the evidence, this court assesses the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Id. The sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Wyles v. State , 368 Ark. 646, 249 S.W.3d 782 (2007) ; Boyd v. State , 2016 Ark. App. 407, 500 S.W.3d 772. Substantial evidence is evidence that is of sufficient force and character that will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Hinton , supra. Finally, the credibility of witnesses is an issue for the jury and not the court. Id. The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.
A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion. Ark. Code Ann. § 5-14-103(a)(1)(Supp. 2017). "Sexual intercourse" is penetration, however slight, of the labia majora by a penis. Ark. Code Ann. § 5-14-101(11). "Deviate sexual activity" is defined as any act of sexual gratification involving (A) the penetration, however slight, of the anus or mouth of a person by the penis of another person; or (B) the penetration, however slight, of the labia majora or anus of a person by any body member or foreign instrument manipulated by another person. Ark. Code Ann. § 5-14-101(1). "Forcible compulsion" means physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person. Ark. Code Ann. § 5-14-101(2).
Here, T.S. testified that appellant had refused to leave her home, had bitten her on her right breast, dug his fingernails into her left arm, pinned her over the couch, and penetrated her vagina with his fingers and his penis. T.S. also testified that appellant had touched her anus. Moreover, appellant threatened her not to tell anyone of the rape, or he would kill her. A rape victim's uncorroborated testimony describing penetration may constitute substantial evidence to sustain a conviction of rape, even when the victim is a child. Breeden v. State , 2013 Ark. 145, 427 S.W.3d 5. The rape victim's testimony need not be corroborated, and scientific evidence is not required. Id. However, in this case, a neighbor testified that he saw appellant's car at T.S.'s home at midnight sometime in April 2016. Additionally, other witnesses at trial testified that they had observed the bite mark on T.S.'s right breast. Although appellant argues that T.S.'s testimony was unreliable, it is the function of the jury, and not the reviewing court, to evaluate the credibility of witnesses and to resolve any inconsistencies in the evidence. Id. Therefore, substantial evidence supports appellant's conviction, and we affirm on this point.
III. Rule 404(b) Evidence
The State filed a pretrial motion to be allowed to admit testimony regarding two prior alleged rapes of two other victims pursuant to Arkansas Rule of Evidence 404(b). After a hearing, the trial court held that the testimony was admissible because it was used to establish appellant's intent, motive, opportunity, preparation, or plan in the rape of T.S. Additionally, the trial court found that "the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or of misleading the jury." Appellant alleges that this finding was erroneous and that the evidence was admitted merely to show that he was either a criminal or a bad person. We disagree.
The admission or rejection of testimony is a matter within the trial court's sound discretion and will not be reversed on appeal absent a manifest abuse of that discretion and a showing of prejudice to the defendant. Solomon v. State , 2010 Ark. App. 559, 379 S.W.3d 489. An abuse of discretion is a high threshold that does not simply require error in the trial court's decision but requires that the trial court acted improvidently, thoughtlessly, or without due consideration. Harris v. State , 2018 Ark. App. 219, 547 S.W.3d 709.
Arkansas Rule of Evidence 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Therefore, evidence is not admissible under Rule 404(b) simply to show a prior bad act. Vance v. State , 2011 Ark. 243, 383 S.W.3d 325. Rather, the test for admissibility under Rule 404(b) is whether the evidence is independently relevant, which means it must have a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Id. Any circumstance that links a defendant to the crime or raises a possible motive for the crime is independently relevant and admissible under Rule 404(b). Id.
While evidence of other crimes or bad acts may be admissible under Rule 404(b), to be probative under Rule 403, the prior crime or bad act must be similar to the crime charged. Vance , supra. When offered as Rule 404(b) evidence, the prior bad act need not have the degree of similarity that is required for evidence of modus operandi. Fells v. State , 362 Ark. 77, 207 S.W.3d 498 (2005). The previous acts do not have to be identical, just similar. Solomon , supra. Moreover, our supreme court has stated that we are to give considerable leeway to the trial court in determining whether the circumstances of the prior crimes and the crimes at hand were sufficiently similar to warrant admission under Rule 404(b). See Vance , supra ; Creed v. State , 372 Ark. 221, 273 S.W.3d 494 (2008) ; Sasser v. State , 321 Ark. 438, 902 S.W.2d 773 (1995) ; Harris , supra. With these standards in mind, we cannot say that the trial court's finding that there were enough similarities between the incidents to make the testimony regarding them relevant as evidence of appellant's intent, motive, or plan constituted reversible error.
Additionally, our supreme court has explained that even if evidence is relevant under Rule 404(b), Arkansas Rule of Evidence 403 provides that "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
However, our supreme court has further noted that evidence offered by the State in a criminal trial is likely to be prejudicial to the defendant to some degree, otherwise it would not be offered. Vance , supra ; Rounsaville v. State , 2009 Ark. 479, 346 S.W.3d 289. Nevertheless, the evidence should not be excluded under Rule 403 unless the defendant can show that the evidence lacks probative value in view of the risk of unfair prejudice. Vance , supra. This court reviews a trial court's ruling under Rule 403 for an abuse of discretion. Id. While the Rule 404(b) evidence here may have been prejudicial, as most Rule 404(b) evidence is, it was also independently relevant to appellant's intent, motive, or plan, and its probative value was not outweighed by the danger of unfair prejudice. Accordingly, we conclude the trial court did not abuse its discretion in admitting the Rule 404(b) evidence.
IV. Motion for Mistrial
Appellant's last contention is that the trial court abused its discretion when it denied his motion for mistrial. Appellant specifically argues that he was entitled to a mistrial after the prosecutor had told the jury that he was going to get a piece of candy to get his blood sugar up during a break in the trial. However, appellant fails to cite any authority to support his contention. The only authority he references is an instruction given to jurors to explain that they must refrain from talking to the attorneys, parties, or witnesses. Here, it was alleged that the prosecutor made a comment to the jurors-not the other way around. A mistrial is a drastic remedy that should be granted only when justice cannot be served by continuing the trial. Green v. State , 2013 Ark. 497, 430 S.W.3d 729. The trial court has the sound discretion to decide whether to grant a mistrial, and this decision will not be overturned absent a showing of abuse or upon manifest prejudice to the complaining party. Id. Here, the alleged comment was not about the case, and appellant has failed to demonstrate any possible prejudice that could have resulted from the comment. As such, we affirm on this point.
V. Sentencing Order
Finally, we note that there is a clerical error in the sentencing order. Appellant was charged as a habitual offender with three prior felony convictions; these convictions were introduced at the sentencing hearing; and the jury sentenced appellant as a habitual offender. Moreover, even appellant acknowledges in his brief on appeal that he is a habitual offender. However, the box that would indicate that appellant was sentenced as a habitual offender is not checked on the judgment. The trial court is free to correct a clerical error to have the judgment speak the truth. Jefferson v. State , 2017 Ark. App. 536, 532 S.W.3d 593. Thus, we affirm appellant's conviction but remand to the trial court with instructions to correct the sentencing order.
Affirmed; remanded to correct the sentencing order.
Gruber, C.J., and Brown, J., agree. | [
16,
-22,
-83,
-68,
25,
65,
26,
-68,
66,
-61,
125,
-45,
-89,
-46,
4,
123,
-85,
123,
101,
97,
-43,
55,
37,
105,
-93,
-5,
-69,
-42,
-78,
79,
-11,
-74,
25,
96,
-54,
-47,
98,
-64,
-25,
88,
-114,
3,
-101,
116,
80,
75,
40,
47,
72,
15,
49,
-98,
-22,
111,
22,
67,
105,
76,
75,
-75,
88,
113,
-101,
7,
-49,
48,
-77,
-74,
-101,
13,
120,
44,
-36,
49,
0,
-24,
115,
22,
-122,
116,
79,
-103,
4,
96,
98,
1,
13,
-41,
44,
9,
63,
126,
-71,
-90,
-40,
1,
75,
69,
-73,
-107,
118,
84,
12,
126,
126,
-18,
53,
108,
-123,
-50,
-112,
-111,
-121,
33,
22,
-13,
-29,
45,
16,
117,
-49,
-30,
84,
85,
120,
-101,
-98,
-10
] |
RITA W. GRUBER, Chief Judge
This is an appeal from a jury trial on whether Davis Life Care Center (Davis), a long-term-care facility, was entitled to charitable immunity. Johnny Newborn died on December 6, 2011, while residing at Davis. After Newborn's death, Gracie Neal sued Davis in her capacity as personal representative of his estate and on behalf of his wrongful-death beneficiaries. Davis responded by claiming it was entitled to charitable immunity, and the circuit court granted summary judgment to Davis on this basis. Neal appealed, and our court reversed and remanded. See Neal v. Davis Nursing Ass'n , 2015 Ark. App. 478, 470 S.W.3d 281. On remand, the circuit court held a jury trial on whether Davis was entitled to charitable immunity, and the jury concluded that it was not. Davis appeals arguing that (1) a jury trial was improperly held; (2) the jury was improperly instructed; and (3) substantial evidence did not support the jury's verdict. We affirm.
I. Background
In 2013, Neal sued Davis for negligence, medical malpractice, breach of the admission agreement, violations of the Long-Term Care Facility Residents' Rights Act, and breach of the provider agreement. Davis answered Neal's complaint and raised the affirmative defense of charitable immunity. Thereafter, the circuit court granted summary judgment to Davis based on charitable immunity, concluding that Neal failed to refute evidence that Davis is a nonprofit organization created for charitable purposes.
Neal timely appealed the order granting summary judgment to our court. On appeal, we engaged in a review of the factors our supreme court adopted in Masterson v. Stambuck , 321 Ark. 391, 902 S.W.2d 803 (1995), to analyze whether a corporation is entitled to charitable immunity. These factors, which are illustrative and not exhaustive, include:
(1) whether the organization's charter limits it to charitable or eleemosynary purposes; (2) whether the organization's charter contains a "not-for-profit" limitation; (3) whether the organization's goal is to break even; (4) whether the organization earned a profit; (5) whether any profit or surplus must be used for charitable or eleemosynary purposes; (6) whether the organization depends on contributions and donations for its existence; (7) whether the organization provides its services free of charge to those unable to pay; and (8) whether the directors and officers receive compensation.
Id. at 401, 902 S.W.2d at 809. With these standards in mind, our court determined that questions of fact susceptible to different interpretations by reasonable persons precluded summary judgment. Specifically, we concluded that, considered together, Davis's relationship to Davis Life Care Services, its failure to ever earn a profit, its questionable characterization of free care and lack of charitable donations, and its intentions as they relate to profitability could reasonably result in the conclusion that Davis was not truly operating as a charity. Neal , 2015 Ark. App. 478, at 8, 470 S.W.3d at 285-86. Accordingly, we reversed and remanded the case to the circuit court for further proceedings. Neal, supra.
On remand, Davis moved to bifurcate the proceedings, with the circuit court first resolving whether Davis was entitled to charitable immunity and then proceeding to the liability and damages phase of trial in the event it was determined that Davis was not immune from suit. In the motion, Davis maintained that charitable immunity is properly decided as a matter of law by the court, rather than a jury. Neal opposed both the bifurcation of the trial and the submission of the immunity question to the court. Ultimately, the circuit court granted Davis's request for bifurcation but ordered that the question of Davis's immunity would be submitted to a jury.
On November 15-17, 2016, a jury trial was held on the issue of whether Davis was entitled to charitable immunity. At the conclusion of the evidence, the circuit court instructed the jury on the applicable law. The primary instruction given was based on the Masterson factors. Significantly, the circuit court declined to give five instructions proffered by Davis that included language gleaned from prior charitable-immunity caselaw. The case was submitted to the jury on a single interrogatory: "Do you find from a preponderance of the evidence that Davis is entitled to the affirmative defense of charitable immunity?" The jury returned a verdict with an answer of "No."
Thereafter, the circuit court entered a judgment memorializing the jury's verdict. Following the entry of the judgment, Davis moved for a new trial, which was deemed denied.
Davis timely appealed the circuit court's judgment and its denial of the motion for new trial and raises three arguments for reversal. Most significantly, Davis argues the circuit court erred by holding a jury trial on the issue of charitable immunity. Davis also seeks reversal based on the circuit court's refusal to give five proffered jury instructions. Finally, Davis contends the jury's verdict was not supported by substantial evidence.
II. The Right to a Jury Trial
Davis argues that entitlement to charitable immunity is a question of law, which must be decided by the court rather than a jury, and that accordingly, the circuit court erred by submitting this question to a jury. We disagree. Although the question of whether charitable immunity may be decided by a jury has not been squarely addressed in Arkansas, our review leads us to conclude that it may.
We begin our analysis by acknowledging that article 2, section 7 of the Arkansas Constitution provides in relevant part, that "the right of trial by jury shall remain inviolate, and shall extend to all cases at law." This is a fundamental right that extends to the trial of issues of fact in civil and criminal causes. Craven v. Fulton Sanitation Serv., Inc. , 361 Ark. 390, 395, 206 S.W.3d 842, 845 (2005).
Furthermore, our supreme court has contemplated that factual issues involving charitable immunity may be resolved by a jury. In Crossett Health Center v. Croswell , our supreme court held that Crossett Health Center was not entitled to charitable immunity and stated that "there are factors sufficient for the jury to find that [Crossett Health Center] was not a trust involving dedication of its property to the public." 221 Ark. 874, 883, 256 S.W.2d 548, 552 (1953).
Our supreme court's opinion in Anglin v. Johnson Regional Medical Center is also instructive and, indeed, more persuasive than Croswell . 375 Ark. 10, 289 S.W.3d 28 (2008). In Anglin , the supreme court affirmed the grant of summary judgment to a hospital based on charitable immunity; however, the court stated that "where there are disputed facts concerning an organization's charitable status, those facts should be presented to the jury." 375 Ark. at 21, 289 S.W.3d at 35.
Finally, although only persuasive authority, we acknowledge that Justice Robert Brown twice dissented from majority opinions wherein the supreme court held that certain hospitals were entitled to charitable immunity. See Anglin , supra ; George v. Jefferson Hosp. Ass'n, Inc. , 337 Ark. 206, 987 S.W.2d 710 (1999). In both Anglin and George , our supreme court affirmed a circuit court's order granting summary judgment based on charitable immunity. In his dissents, Justice Brown maintained that, based on his understanding of Croswell , it was clear that, when there are factual issues involved in a charitable-immunity defense, this court has held that the matter is for the jury to resolve. Anglin , 375 Ark. at 23, 289 S.W.3d at 37 (Brown, J., dissenting); George , 337 Ark. at 218, 987 S.W.2d at 716 (Brown, J., dissenting). It is noteworthy that the majority opinion in Anglin also recognizes that disputed facts regarding an organization's charitable status should be presented to a jury and that the majority opinion in George does not engage in any analysis of whether disputed facts should be presented to a jury.
The language in the caselaw we discuss comports with how our court has handled the issue of charitable immunity. Our recent cases indicate that the question of charitable immunity often involves facts on which reasonable persons could reach different conclusions. Specifically, our court has held that "if the evidence presented creates a genuine issue of material fact, the matter cannot be determined as a matter of law." Progressive Eldercare Services-Saline, Inc. v. Cauffiel , 2016 Ark. App. 523, at 10, 508 S.W.3d 59, 66.
In the previous appeal of this matter, we noted several issues of fact and reversed and remanded the case to the circuit court for further proceedings, and it stands to reason that Neal has a right to have those issues of fact decided by a jury. Based on article 2, section 7 of our constitution and our caselaw, we affirm the circuit court's decision to hold a jury trial on Davis's entitlement to charitable immunity.
III. The Proffered Jury Instructions
Davis also argues the circuit court abused its discretion by refusing to give five proffered jury instructions. Before we undertake our analysis of this issue, we recognize that this area of the law is unsettled, and that, accordingly, there are no model jury instructions or standards to guide a circuit court's instruction of a jury on charitable immunity.
Still, our general law pertaining to jury instructions is well settled. A party is entitled to a jury instruction when it is a correct statement of the law, and there is some basis in the evidence to support giving the instruction. S. Farm Bureau Cas. Ins. Co. v. Daggett , 354 Ark. 112, 118 S.W.3d 525 (2003). Nevertheless, our court will not reverse a circuit court's refusal to give a proffered instruction unless there was an abuse of discretion. Id. It is not error for a circuit court to refuse a proffered instruction when the stated matter is correctly covered by other instructions. Id.
In this case, the operative instruction given to the jury was based on the Masterson factors. The court instructed:
Davis Nursing Associates, doing business as Davis Life Care Center, contends that it is entitled to the affirmative defense of charitable immunity and has the burden of proving this contention. Arkansas law has adopted eight factors to review when deciding whether a corporation is entitled to charitable immunity. These factors include: (1) whether the organization's charter limits it to charitable purposes; (2) whether the organization's charter contains a "not-for-profit" limitation; (3) whether the organization's goal is to break even; (4) whether the organization earned a profit; (5)
whether any profit or surplus must be used for charitable purposes; (6) whether the organization depends on contributions or donations for its existence; (7) whether the organization provides its services free of charge to those unable to pay; and (8) whether the directors and officers receive compensation. These factors are illustrative not exhaustive, and no one factor is dispositive of charitable status.
See Masterson , 321 Ark. 391, 902 S.W.2d 803. Davis contends the use of this instruction, without further explanation, misled the jury and was inadequate.
In deciding whether the circuit court abused its discretion, two important considerations color our analysis. First, in declining to give the proffered instructions, the circuit court mentioned that the rejected instructions could be incorporated into Davis's closing argument. Additionally, it appears that Davis merely cherry-picked language from appellate caselaw on charitable immunity that supported its argument. Although we recognize that each proffered instruction is based on some evidence presented at trial and gleaned from our caselaw, the usage of these proffered instructions is problematic because they serve to emphasize some Masterson factors to the exclusion of others. Moreover, the proffered instructions arise out of prior applications of the Masterson factors to particular facts. We are reminded that a charitable-immunity determination is based on "the totality of the relevant facts and circumstances," thus these instructions are not particularly helpful in evaluating the facts of this case. George , 337 Ark. at 206, 987 S.W.2d at 714. Accordingly, we hold that the circuit court did not abuse its discretion in refusing Davis's five proffered instructions.
IV. Substantial Evidence to Support the Verdict
Finally, we consider Davis's argument that our court must reverse because substantial evidence did not support the jury's verdict. Substantial evidence is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resorting to speculation or conjecture. Koch v. Northport Health Servs. of Ark., LLC , 361 Ark. 192, 205 S.W.3d 754, 763 (2005). In determining the existence of substantial evidence, we must view the evidence in the light most favorable to the appellee. Ray v. Green , 310 Ark. 571, 839 S.W.2d 515 (1992). Evidence favorable to the appellee is given the benefit of all reasonable inferences permissible under the proof. Id.
In evaluating whether substantial evidence supports the jury's verdict, we must revisit the Masterson factors, namely:
(1) whether the organization's charter limits it to charitable or eleemosynary purposes; (2) whether the organization's charter contains a "not-for-profit" limitation; (3) whether the organization's goal is to break even; (4) whether the organization earned a profit; (5) whether any profit or surplus must be used for charitable or eleemosynary purposes; (6) whether the organization depends on contributions and donations for its existence; (7) whether the organization provides its services free of charge to those unable to pay; and (8) whether the directors and officers receive compensation.
Masterson , 321 Ark. at 401, 902 S.W.2d at 809.
A. Davis's Charter
Davis's charter contains a not-for-profit limitation and limits Davis to charitable purposes.
B. Davis's Profitability
The next three Masterson factors pertain to Davis's profitability. They are whether Davis's goal was to break even, whether it earned a profit, and whether any profits were used for charitable purposes.
Here, Davis highlights testimony elicited from its director Brian Miller and its CPA Jay Hickey that its goal was to merely break even. Davis further emphasizes that the evidence demonstrates that it often failed to meet its goal and consistently operated at a loss. The testimony demonstrated that because of its operating deficit, Davis often delays payments on its financial obligations and takes out loans to make payroll and pay urgent bills. Davis also stresses that John Langham, a CPA who testified on behalf of Neal, admitted that Davis's financial records were accurate. Thus, Davis claims this case is distinguishable from the recent line of cases in which evidence clearly indicated manipulation of financial records to appear unprofitable. See generally Watkins v. Ark. Elder Outreach of Little Rock, Inc. , 2012 Ark. App. 301, 420 S.W.3d 477. Finally, Davis explains that any profit has been put back into the facility through actions such as the repayment of debt and in improving the facility.
Neal responds by emphasizing evidence tending to show profitability. First, John Langham observed that Davis's mission is to operate a nursing facility for the benefit of residents, most of whom are elderly, which is the same mission of a for-profit nursing home. Additionally, Langham compared Davis's gross revenue to that of other nursing homes in Arkansas and found that it ranked in the middle; he testified that he would expect a true non-profit to rank lower. Finally, Neal reminds our court of language from the first appeal in this case in which our court wrote, "[A] question remains as to whether reinvesting profits is sufficient" to satisfy the factor relating to whether Davis uses profit for charitable purposes "especially if the evidence, taken as a whole, challenges the true nature of the facility." Neal , 2015 Ark. App. 478, at 5-6, 470 S.W.3d at 284.
C. Davis's Funding and Dependence on Donations
The evidence reflected that Davis receives minimal cash donations. Specifically, Jay Hickey testified that in five years, Davis received $1645 in monetary donations compared to nearly $40 million in gross revenues. John Langham explained that non-profit organizations typically receive one-third of their revenue from public support or donations. Nevertheless, evidence was presented that Davis received numerous noncash donations and had a $6 million debt forgiven by Jefferson Regional Medical Center.
D. Free Services
With respect to free services, the evidence indicated that Davis admits patients with the presumption that they will pay their bills. Although the evidence showed that no one has been discharged for nonpayment, Davis's admissions agreement contemplates payment and gives Davis the right to discharge a resident from the facility "upon non-payment of the Resident's financial obligations to the Facility." The evidence also established that Neal was required to sign a personal guarantee for all obligations of Mr. Newborn pursuant to this agreement. Moreover, admission coordinator Evelyn Horton and administrator Kathy Cash testified that one factor considered for admission is the ability to pay. Horton further stated that, to her knowledge, no one was admitted who Davis did not think could pay, and Cash stated that she could think of instances where ability to pay was a factor in admissions denial.
The financial documents illustrate that Davis provides some unreimbursed care, and Davis contends that unreimbursed care is free care. See Jackson v. Sparks Reg'l Med. Ctr. , 375 Ark. 533, 540, 294 S.W.3d 1, 5 (2009). But as our court mentioned in the first appeal, "Davis failed to establish that forgiving uncollectable debt is equivalent to providing free services." Neal , 2015 Ark. App. 478, at 6, 470 S.W.3d at 284-85. Moreover, the jury heard evidence that the amount of debt forgiven by those who do not or cannot pay is minuscule in comparison to Davis's overall revenue.
E. Compensation of Directors and Officers
Here, the evidence indicated that members of Davis's board did not receive compensation-their only incentive for involvement was free breakfast at meetings. Each board member who testified stated that all meetings took place at the facility, but later Jay Hickey admitted that some meetings were held at the Pine Bluff Country Club.
With regard to compensation of its directors, the evidence showed that Davis compensated its director. Former executive director Joe Ratliff was paid $178,466 in 2011-2012. Additionally, Ratliff's membership dues to the Pine Bluff Country Club were paid by Davis, and he sometimes entertained business associates there. The current executive director Brian Miller is paid a $145,000 salary with $6,000 for travel expenses.
F. A Review of the Evidence
We are reminded that our court reviews the jury's verdict for whether substantial evidence supported it, reviewing the evidence in the light most favorable to Neal. We acknowledge that Davis often compares the facts in this case to those in which Arkansas appellate courts have determined that an entity was charitably immune from suit to bolster its argument for reversal. Davis's comparison is not particularly persuasive because our review is conducted based on the "the totality of the relevant facts and circumstances." George , 337 Ark. at 214, 987 S.W.2d at 714.
We hold that substantial evidence supports the jury's verdict. In reaching this conclusion, we are particularly persuaded by John Langham's testimony that Davis's gross revenue places it in the middle of all Arkansas nursing homes in terms of profitability. It is also significant that Davis receives minimal cash donations. Finally, the most compelling evidence is based on the free-care factor. There is ample evidence that Davis admits patients with the presumption that they will pay. Furthermore, the amount of free care-which is only unreimbursed care-provided by Davis is minimal in comparison to Davis's overall revenue.
Affirmed.
Abramson, Virden, Hixson, and Brown, JJ., agree.
Harrison, J., dissents.
The main question the jury was asked to decide, after the parties presented their evidence during a bifurcated three-day trial, was whether Davis was charitably immune. While deliberating its decision, the jury sent three notes to the circuit court:
• "I have a question about Charitable Immunity."
• "Are payments from Medicaid and Medicare retro-active after admission?"
• "What is the definition of Charitable Immunity?"
The court answered the jury, in sum and substance: You have the testimony, exhibits, and the instructions.
The jury's confusion cannot be totally surprising because it was not given some important legal principles that inform a charitable-immunity decision. That there are no model jury instructions in this area means that all instructions must come directly from the caselaw. All Davis sought to do here was to submit, based on the evidence produced at trial, a set of jury instructions that fairly stated the meandering contours of charitable immunity. Davis tried to give the jury the same principles of law that any circuit court would itself consider if tasked to decide the issue. I cannot see the harm in the attempt.
For example, the first instruction Davis proffered, which the circuit court rejected, stated:
Under Arkansas law, it is permissible for an entity to remain a charitable entity and own or control for-profit businesses. If you find by a preponderance of the evidence that Davis Life Care Center owns or controls a for-profit business, that fact alone does not negate Davis Life Care Center's claim of being a charitable entity.
The instruction recites a legal proposition directly from George v. Jefferson Hospital Ass'n, Inc. , 337 Ark. 206, 214, 987 S.W.2d 710, 714 (1999). The majority concedes as much then collectively makes a cursory conclusion that none of Davis's five proffered instructions are "particularly helpful." But the pivotal legal analysis is (1) whether there was some evidence to support a proffered instruction, and (2) whether the instruction accurately states the law. Coca-Cola Bottling Co. v. Priddy , 328 Ark. 666, 945 S.W.2d 355 (1997). On instruction No. 1, the answer to the two critical questions is yes.
The majority is concerned that Davis's proffered instructions "serve to emphasize some Masterson factors to the exclusion of others." But how such a thing happened is left unexplained; we are simply not told why each proffered instruction overemphasized (or underemphasized) this Masterson factor or that one, or some unidentified combination of the eight factors.
Staying with instruction No. 1 as a concrete example, none of the Masterson factors addressed whether an entity seeking immunity could also own a for-profit business. The jury, however, was permitted to hear evidence that Davis had an ownership interest in two for-profit assisted-living facilities that it managed. The jury should have also been allowed to know, as part of the complex analysis a charitable-immunity question presents, that a party who owns a for-profit business is not necessarily precluded from receiving charitable immunity.
Moving down the list, Davis's proffered instructions Nos. 2 and 3 would have explained to the jury that a charitable entity may charge for medical services-and that a modern medical facility can still be a charitable entity although it receives most, if not all, funding from Medicare, Medicaid, and insurance companies. Whether one agrees with the current state of the law or not, the core point is that these two instructions touch at least one of the questions the jury asked the circuit court, and the evidence at trial about the cost of care and who paid for it. Again, the governing rule is that a party is entitled to an instruction when it is a correct statement of the law and there is some basis in the evidence for it. ProAssurance Indem. Co. v. Metheny , 2012 Ark. 461, at 11, 425 S.W.3d 689, 696. The test was met again regarding Davis's proffered instructions Nos. 2 and 3. In fact, the majority opinion does not explicitly state why these instructions failed the relevant legal test, especially considering the parties are in an area that lacks even one model instruction on point.
Although I have only briefly highlighted three proffered instructions, all five proffered instructions were accurate statements of Arkansas's common-law doctrine of charitable immunity, grounded in some evidence, and calculated to more accurately inform the jury's decision. The instructions should have been given to the jury in this case, and not doing so was an abuse of discretion.
? ? ?
The judgment denying Davis charitable immunity was the product of an inadequate jury-instruction process. Consequently, I would at a minimum reverse the judgment and remand for a new trial on the immunity issue. How many instructions and in which combinations would adequately instruct a jury on the law going forward is beyond this dissent's scope.
That said, the instruction process, now that the majority has expressly allowed juries to decide the ultimate question of whether a party is charitably immune, will be another lingering point of disagreement and costly litigation for all parties in this area of the law. And it is another reason why I am increasingly persuaded that courts, not juries, should decide the immunity question while using a fair, clearly defined, and more efficient process. See George , 337 Ark. 206, 987 S.W.2d 710 (charitable immunity is a question of law reviewed de novo on summary judgment); see also White River Health Sys., Inc. v. Long , 2018 Ark. App. 284, 551 S.W.3d 389 (Harrison, J., dissenting); Progressive Eldercare Servs.-Saline, Inc. v. Cauffiel , 2016 Ark. App. 523, 508 S.W.3d 59 (Harrison, J., concurring).
We note that, frequently during oral arguments to the circuit court, counsel for Neal represented that our court held that a jury trial was proper to determine charitable immunity despite the fact that our court made no such determination in the first appeal.
The parties agreed to the usage of this interrogatory. We acknowledge that the circuit court initially planned to submit the case to the jury on separate interrogatories based on each of the Masterson factors with the court later determining immunity, but the court ultimately acquiesced to the usage of the one interrogatory submitted by the parties. | [
-48,
-8,
-3,
-66,
10,
-29,
56,
24,
66,
-94,
-93,
83,
-23,
-40,
5,
111,
-24,
55,
-47,
97,
-31,
-73,
23,
33,
-42,
-45,
-70,
-105,
-95,
-51,
-11,
-4,
12,
112,
-86,
-43,
102,
2,
-49,
18,
-50,
9,
-22,
93,
-79,
-118,
48,
-70,
88,
91,
117,
-98,
-69,
40,
-72,
66,
41,
46,
121,
37,
76,
-71,
-120,
7,
122,
23,
33,
-92,
-99,
-29,
-24,
48,
-104,
49,
0,
-24,
18,
-74,
-62,
116,
99,
-103,
44,
100,
98,
-126,
28,
-11,
-112,
-125,
63,
70,
-99,
7,
-110,
105,
122,
15,
-74,
63,
90,
86,
-118,
122,
110,
-44,
-34,
46,
1,
-50,
-36,
-79,
-49,
96,
126,
-81,
-57,
-109,
50,
81,
-52,
-30,
94,
-121,
51,
-101,
-22,
-46
] |
PHILLIP T. WHITEAKER, Judge
Appellant Neal Allen Hall was charged and convicted by a Garland County jury of second-degree sexual assault and was sentenced to fifty years in the Arkansas Department of Correction. Hall appeals his conviction, claiming that the trial court erred in denying his motion for a mistrial. We agree.
The facts of this appeal are straightforward. On April 9, 2013, Hall was at the Goodwill store in Hot Springs, Arkansas. E.M., an eight-year-old female, was shopping with her family at the store. E.M. claimed that Hall approached her, said that he wanted to "f---" her, and inappropriately touched her on her bottom. When she screamed and ran to her mother, Hall fled the store.
After the State presented these facts, Hall testified on his own behalf. Hall admitted approaching and speaking to E.M. He stated that he was only trying to console her after she had been admonished by her father for riding a bike in the store. He stated that he had been a victim of physical and sexual abuse and that he felt the need to console E.M. after she had been disciplined. He only wanted to let E.M. know that her father did not have to talk to her that way. Hall admitted patting E.M. on the back while speaking with her, but he denied touching her inappropriately.
Concerning his fleeing the store, Hall claimed that he fled the store, not because he had done anything inappropriate, but because the other patrons threatened to beat him. He stressed that, after having initially fled, he returned to talk with the officers. It is this testimony that raises the point of controversy on appeal.
In response to Hall's testimony concerning his having fled the store, the prosecutor made the following remarks on cross-examination:
So you admit from [sic] fleeing from the store but you had a change of heart and decided to come back. So let's talk about when you fled from your jury trial. It was a condition of your bond, wasn't it, to have an ankle monitor?
Defense counsel objected on two bases: (1) the State had not given notice that it intended to introduce this as 404(b) evidence; and (2) this evidence was significantly more prejudicial than it was probative. The State responded that it was trying to introduce evidence of his having fled as evidence of his consciousness of guilt. The court sustained the objection without specifying on which basis it was relying. Defense counsel asked for a mistrial. The court denied the mistrial and issued a curative instruction to the jury: "All right, Ladies and Gentlemen, you will disregard that last question of the Prosecuting Attorney."
Hall argues one issue on appeal: that the trial court erred in denying his motion for a mistrial. He notes that the trial court sustained his objection, finding the State's question improper. Because the case against him hinged on credibility, Hall contends that the curative instruction given by the court was insufficient to cure the prejudice caused by the State's remarks. We agree.
Our supreme court has set forth the law regarding mistrials. A mistrial is an extreme and drastic remedy to be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing the trial. Russell v. State , 306 Ark. 436, 815 S.W.2d 929 (1991). A trial court may grant or deny a motion for mistrial utilizing sound discretion, and the exercise of that discretion should not be disturbed on appeal unless an abuse of discretion or manifest prejudice to the complaining party is shown. See King v. State , 298 Ark. 476, 769 S.W.2d 407 (1989). Among the factors considered by this court on appeal in determining whether a trial court abused its discretion in denying a mistrial motion are whether the prosecutor deliberately induced a prejudicial response and whether an admonition to the jury could have cured any resulting prejudice. Sampson v. State , 2018 Ark. App. 160, 544 S.W.3d 580.
We conclude that the prosecutor's statement during cross-examination was obviously designed to induce a prejudicial response. During cross-examination, the prosecutor asked the question, "It was a condition of your bond, wasn't it, to have an ankle monitor?" Before this question was asked, however, the prosecutor made two statements: (1) "So you admit from [sic] fleeing from the store but you had a change of heart and decided to come back"; and (2) "So let's talk about when you fled from your jury trial." It is apparent from the record that these prosecutorial statements were not calculated to elicit testimony from Hall; instead, they were clear statements of fact by the prosecutor amounting to testimony under the guise of cross-examination. When the prosecution utilizes clear statements of fact amounting to testimony under the guise of cross-examination for the purpose of inducing a prejudicial response, this constitutes a flagrant violation that cannot be cured with an admonishment to the jury. See Dean v. State , 272 Ark. 448, 615 S.W.2d 354 (1981).
To compound this error, the prosecutor's statement to the jury was deliberately misleading for a couple of reasons. First, the prosecutor's statement is factually incorrect. The prosecutor informed the jury that Hall had "fled" from his jury trial. Hall did not "flee" from a jury trial; he failed to appear at a previously scheduled jury trial, resulting in a warrant for his arrest, with no formal failure-to-appear charge. The difference in imagery surrounding the two phrases "fleeing" and "failure to appear," especially for a lay jury, is substantial. Second, the prosecutor's statement that Hall had fled from his jury trial was misleading to the jury and called on it to engage in speculation. The prosecutor did not make it clear to the jury that Hall had failed to appear in a previously scheduled jury trial in this case , leaving the jury to speculate as to how many jury trials or crimes in which Hall had been involved, insinuating that Hall was a bad person.
We do not find the prosecutor's phrasing in this manner to be inadvertent. Simply put, the prosecutor uttered a deliberately misleading statement to the jury based on "facts" not in evidence. Our supreme court has long held that a prosecuting attorney should not be tempted to appeal to prejudices, pervert testimony, or make statements to the jury which, whether true or not, have not been proved. Timmons v. State , 286 Ark. 42, at 43-44, 688 S.W.2d 944, 945 (1985). The desire for success should never induce him or her to endeavor to obtain a conviction by arguments except those that are based on the evidence in the case. Id.
Finally, the timing of the revelation is important. See Honey v. State , 2018 Ark. App. 217, 547 S.W.3d 483. The comment by the prosecutor came at the very end of the trial and was the very last thing the jury heard from the witness stand before retiring to deliberate. While the court admonished the jury to disregard the remark, the last thing the jury heard was a highly misleading comment by the prosecutor. Our supreme court has on many occasions held that when prejudicial and inflammatory remarks of a State's witness or the prosecutor rise to the level of prejudice, an admonition to the jury to disregard the remarks will not suffice, and a new trial must be granted or the sentence reduced. White v. State , 298 Ark. 163, 170, 765 S.W.2d 949, 953 (1989) ; Dandridge v. State , 292 Ark. 40, 727 S.W.2d 851 (1987) ; Meadows v. State , 291 Ark. 105, 722 S.W.2d 584 (1987). We cannot say with any degree of certainty that the error here was not prejudicial to Hall. Given the timing and the misleading nature of the prosecutor's comments, a cautionary instruction in this instance was insufficient.
Reversed and remanded.
Gruber, C.J., and Brown, J., agree.
His name is also noted as "Neil Allen Hall" in the record.
The State argues that the court did not err in denying the request for a mistrial because the question asked by the prosecutor was not improper and was admissible under Rule 404(b). The court's admissibility decision is not the issue on appeal. The only issue on appeal is the denial of the mistrial. | [
80,
-8,
-39,
-65,
24,
97,
46,
24,
34,
-121,
118,
-13,
-85,
-46,
17,
123,
-37,
111,
85,
97,
-45,
-73,
65,
97,
-14,
-5,
58,
-43,
-77,
-37,
-92,
-43,
76,
112,
-54,
-107,
98,
-56,
-27,
-40,
-114,
9,
-86,
-32,
80,
-126,
36,
46,
28,
15,
49,
30,
-77,
46,
-108,
-50,
105,
108,
83,
-65,
80,
57,
19,
23,
-19,
20,
-77,
36,
-65,
5,
120,
54,
-104,
57,
0,
-24,
115,
-106,
-126,
116,
109,
-119,
-116,
97,
99,
-95,
13,
-25,
-88,
-119,
-82,
63,
-75,
-89,
-40,
72,
67,
37,
-73,
-103,
120,
20,
14,
-8,
-18,
92,
127,
108,
-120,
-50,
62,
-111,
-115,
40,
116,
-77,
-29,
31,
20,
81,
-49,
-60,
92,
84,
114,
-1,
-114,
-78
] |
JOHN DAN KEMP, Chief Justice
This is a pro se appeal from an order of the trial court denying appellant Khalin Collins's pro se petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2013). Collins raised six grounds for relief in the trial court based on allegations of ineffective assistance of counsel. The trial court denied relief without conducting a hearing.
On appeal, Collins raises two of his original claims of ineffective assistance of counsel: (1) that trial counsel failed to present testimony from a known witness and other supporting evidence establishing an alibi on the date the crimes were committed; and (2) that counsel failed to file a motion to dismiss on the ground that Collins's right to speedy trial had been violated. As stated, the trial court did not conduct an evidentiary hearing and entered an order concluding that the decision to call a witness is one of trial strategy; it further found that, based on a review of the docket sheet, all but nine months between Collins's arrest and trial were specifically excluded for purposes of speedy trial.
Rule 37.3 of the Arkansas Rules of Criminal Procedure (2013) provides that an evidentiary hearing should be held in a postconviction proceeding unless the files and record of the case conclusively show that the prisoner is entitled to no relief. Sanders v. State , 352 Ark. 16, 98 S.W.3d 35 (2003). When the trial court concludes, without a hearing, that the petitioner is not entitled to relief, Rule 37.3(a) requires the trial court to make written findings specifying the parts of the record that form the basis of the trial court's decision. Id. If the trial court fails to make such findings, it is reversible error, unless the record before this court conclusively shows that the petition is without merit. Id. It is not incumbent on this court to scour the record to affirm. Turner v. State , 2016 Ark. 96, 486 S.W.3d 757.
Sufficient written findings by the trial court are required to demonstrate that Collins was entitled to no relief. Because the record before this court does not conclusively show that Collins's ineffective-assistance-of-counsel claims are without merit, we reverse and remand for compliance with Rule 37.3 and direct the trial court to conduct an evidentiary hearing and to supplement the record.
As an initial matter, we address the State's contention that Collins's Rule 37.1 petition was untimely filed. In February 2013, a jury convicted Collins of one count of commercial burglary, one count of theft of property over $2,500, one count of Class Y felony arson, and two counts of Class C felony arson. The Arkansas Court of Appeals affirmed three of Collins's convictions but reversed the conviction for Class Y felony arson. Collins v. State , 2014 Ark. App. 551, 444 S.W.3d 889. This court denied the parties' cross-motions for review, and the mandate was issued on January 22, 2015. Accordingly, Collins was resentenced and a second amended sentencing order was entered by the trial court on February 20, 2015. Thereafter, Collins filed a timely pro se Rule 37.1 petition on May 13, 2015. See Ark. R. Crim. P. 37.2(c)(iv) (2013) (stating in pertinent part that if no appeal is taken from a resentencing order the petition must be filed within ninety days of the entry of the judgment). Here, no appeal was taken from the resentencing order filed on February 20, 2015, and Collins's Rule 37.1 petition was due on May 21, 2015. Therefore, his petition filed on May 13, 2015, was timely.
Our standard of review requires that we assess counsel's effectiveness under the two-prong standard set forth by the United States Supreme Court in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Johnson v. State , 2018 Ark. 6, 534 S.W.3d 143. In asserting ineffective assistance of counsel pursuant to Strickland , the petitioner first must show that counsel's performance was deficient. Id. This requires a showing that counsel made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id.
I. Failure to Call an Alibi Witness
When a petitioner alleges ineffective assistance of counsel concerning the failure to call witnesses, it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Id. To demonstrate prejudice, the petitioner is required to establish that there was a reasonable probability that, had counsel presented the witness, the outcome of the proceeding would have been different. Id.
In the petition filed below, Collins named a specific witness who resided in Panama City, Florida, and who allegedly would verify that Collins was working for a construction company in Florida when the crimes for which he was convicted occurred. In support of his claim, Collins points to a motion for continuance filed by his first attorney, Robert Jeffrey. A review of the record on appeal reveals that Collins's first counsel asked for a continuance for the purpose of investigating the above-referenced alibi evidence and testimony. Attached to the motion was an affidavit executed by counsel as well as documents from a construction company in Florida confirming that Collins was hired in July 2009 and was working there during the relevant time frame. Collins contends that his second counsel, James Bennett, who conducted the trial, failed to follow through with an investigation of this alleged alibi evidence. As stated above, the trial court denied this claim, concluding that the decision to call a witness was one of trial strategy and did not represent ineffective assistance of counsel.
This court reviews the trial court's decision on Rule 37.1 petitions for clear error. Russell v. State , 2017 Ark. 174, 518 S.W.3d 674. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the totality of the evidence, is left with the definite and firm conviction that a mistake has been committed. Polivka v. State , 2010 Ark. 152, 362 S.W.3d 918.
Because Collins specified the alibi evidence his trial counsel allegedly failed to develop and provided the name of a specific witness, as well as the anticipated testimony of that witness, it cannot be determined from the face of these allegations that they are clearly without merit. Johnson , 2018 Ark. 6, 534 S.W.3d 143. Therefore, a hearing should have been held to provide an opportunity for Collins's trial counsel to explain the failure to investigate and present this alleged alibi testimony. Furthermore, although calling a witness is generally a matter of trial strategy, failing to call a witness that could provide a credible alibi would likely represent an unreasonable strategy capable of prejudicing the outcome of the trial. Therefore, conducting a hearing to obtain testimony from Collins's trial counsel was necessary to determine the merits of this ineffective-assistance-of-counsel claim.
II. Ineffective Assistance of Counsel Based on Failure to Move for Dismissal Based on a Violation of Right to Speedy Trial
With respect to his speedy-trial claim, Collins alleged below that he had been arrested in Panama City, Florida, on August 24, 2010, and brought to trial on February 13, 2013. In his argument on appeal, Collins concedes that the speedy-trial time began to run on September 2, 2010, and the direct-appeal record demonstrates that Collins was arrested on September 2, 2010. The time that elapsed between September 2, 2010, and February 13, 2013, totaled 895 days. In his petition, Collins alleged that his trial was conducted more than twelve months after his arrest and that the only continuance filed on his behalf was granted on May 2, 2012. Collins argues on appeal that between the date of his arrest and July 12, 2012, "there were 488 days which must be un-excluded."
As explained above, the trial court made a summary finding that Collins was tried within the required speedy-trial time frame based on a review of the docket sheet. However, the trial court failed to set forth the dates that would have been excludable under the speedy-trial rule and did not include in the postconviction record the docket sheet upon which it had based its conclusion. The docket sheet that was included in the direct-appeal record is deficient in that the docket sheet contained therein is missing those parts of the docket that recorded the events between July 2012 and the date Collins's trial began in February 2013, leaving over 200 days of delay that cannot be conclusively excluded from the speedy-trial calculation. The last order setting a trial date that is contained in the record on direct appeal was dated by the trial court as April 2, 2012, but it was not filed until July 5, 2012. This final order, filed-marked July 5, 2012, set Collins's trial for the "next scheduled trial date" and did not specify the date.
When no hearing is held on a Rule 37.1 petition, the trial court has an obligation to provide written findings that conclusively show that the petitioner is entitled to no relief. Turner , 2016 Ark. 96, 486 S.W.3d 757. In doing so, the trial court shall specify "any parts of the files, or records that are relied upon to sustain the court's findings." Ark. R. Crim. P. 37.3 (2013). Collins's allegations establish that the time which elapsed between September 2, 2010, and February 13, 2013, totaled 895 days, and he has therefore established a prima facie case of a speedy-trial violation. Therefore, whether counsel was ineffective depends on whether the State would have been able to prove that there were excluded periods sufficient to bring Collins to trial within the one-year period. Camargo v. State , 346 Ark. 118, 55 S.W.3d 255 (2001).
Sufficient written findings by the trial court are required to demonstrate to this court that Collins was entitled to no relief on his speedy-trial-ineffective-assistance claim. Turner , 2016 Ark. 96, 486 S.W.3d 757. The trial court's summary statement that all but nine months were excludable is insufficient for this court's review, especially in view of the lack of a complete record demonstrating that the delays between the entry of the July 2012 order and the date on which the trial that began in February 2013 were, in fact, excludable under Arkansas Rule of Criminal Procedure 28.3 (2013). Accordingly, we reverse and remand to the trial court with directions to conduct a postconviction hearing limited to the two claims of ineffective assistance of counsel preserved by Collins in this appeal. Furthermore, the trial court is directed to ensure that a complete trial docket sheet is included in the record. The trial court is directed to conduct a hearing and enter an order disposing of these two claims within 120 days of the date of this opinion. If the trial court's decision is adverse, Collins will be required to perfect an appeal.
Reversed and remanded.
This appeal has remained on the docket of this court rather than being transferred to the court of appeals because this court had previously granted Collins's motion for rule on clerk by per curiam order without written opinion entered September 22, 2016; and on March 30, 2017, this court granted Collins's motion to file a belated brief.
Arguments made to the trial court but not included in the arguments on appeal are considered abandoned. Brown v. State , 2017 Ark. 364, 2017 WL 6376367 (citing Jordan v. State , 356 Ark. 248, 147 S.W.3d 691 (2004) ).
We may take judicial notice of the record from the direct appeal without need to supplement the record. Anderson v. State , 2011 Ark. 488, 385 S.W.3d 783.
Contrary to the above-cited allegation, the docket sheet that is part of the direct-appeal record demonstrates that Collins and his first attorney requested numerous continuances between September 2, 2010-the date of his arrest-and April 2012. | [
48,
-22,
-28,
-84,
9,
-31,
10,
60,
97,
-61,
96,
83,
41,
-106,
0,
123,
-86,
121,
116,
-15,
85,
-74,
39,
89,
-14,
-41,
49,
-57,
-73,
-21,
-84,
-66,
92,
112,
-22,
-47,
70,
74,
-25,
80,
-114,
1,
-8,
-27,
80,
53,
48,
122,
-34,
15,
49,
-100,
-13,
106,
16,
-54,
-56,
108,
91,
55,
72,
16,
-117,
-105,
-19,
20,
-93,
-92,
-6,
6,
88,
26,
-128,
57,
1,
120,
115,
-74,
-126,
84,
105,
-103,
40,
100,
96,
1,
60,
-29,
-95,
-94,
55,
55,
-99,
38,
-38,
105,
75,
41,
-106,
-47,
57,
20,
44,
-2,
-2,
-35,
80,
46,
11,
-33,
-112,
-79,
30,
45,
-106,
11,
-21,
5,
52,
53,
-51,
-30,
88,
-57,
51,
-37,
-52,
-107
] |
BART F. VIRDEN, Judge
This is an appeal from an order of the Pulaski County Circuit Court denying appellant Markevious King's petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure. King raised to the trial court one ground for relief based on allegations of ineffective assistance of counsel: that counsel failed to show a police dash-cam video at the suppression hearing that demonstrated that the stop leading to his search and arrest was without a legal basis. The trial court denied relief without conducting a hearing. King raises his original allegation of ineffective assistance of counsel, and he raises two additional points on appeal: (1) the trial court erred in its determination that when a petitioner has pleaded guilty, the sole issue is whether the plea was made intelligently and voluntarily; and (2) the trial court erred by denying King's request for an evidentiary hearing on his Rule 37 petition and by failing to make sufficient findings of fact. We agree that the trial court erred in both determinations, and we reverse and remand.
I. Relevant Facts
On September 9, 2010, King was charged in the Pulaski County Circuit Court with simultaneous possession of drugs and firearms, possession with intent to deliver cocaine, possession of firearms by certain persons, possession of drug paraphernalia, resisting arrest, and fleeing. He was charged as a small-habitual offender.
On October 6, 2010, King filed a motion to suppress. In the motion, King asserted that the Little Rock Police Department ("LRPD") illegally detained him, violating his Fourth and Fourteenth Amendment rights. King argued that the search that led to his arrest was conducted without his consent and that there was no probable cause to search; he then moved to suppress the introduction of evidence that was allegedly illegally obtained. On May 25, 2011, the trial court held a suppression hearing, and Officer Eric Temple testified that on July 15, 2010, he performed a traffic stop of the vehicle in which King was a passenger because he observed that the car's taillight was broken. Officer Temple testified that as he approached the car he smelled marijuana, and he observed King open the car door and flee on foot. Officer Temple explained that as King exited the car and stood up, a gun fell from King's waistband. Officer Temple testified that he eventually caught up with King and took him into custody. Officer Paris Simmons, who was riding in the patrol car with Officer Temple, also stated that they conducted the traffic stop based on their observation of a broken taillight. Officer Wade Neihouse testified that he arrived at the scene after the stop occurred, that he participated in searching King, and that he found a set of electronic scales in the right-front pocket of King's pants. Officer Neihouse recalled that he observed Officer Robbie Kelley retrieve several clear bags of off-white powder and rocks that he believed to be cocaine. Officer Kelley confirmed that she arrived after the stop occurred and that she also assisted in searching King.
The trial court denied the motion to suppress. Immediately thereafter, the State informed the court that, "[f]or the record, there was video that was taken of the initial stop from Officer Temple's MVR. That has been copied and provided to Defense counsel. Defense counsel did not state whether he had viewed the video or if he had shown it to his client."
On April 25, 2016, King filed a new motion to suppress in which he asserted that the police officers conducted a warrantless search and that evidence was seized during this illegal search in violation of his Fourth and Fourteenth Amendment rights.
On December 15, 2016, King entered a plea statement in which he agreed that he understood the minimum and maximum sentences for the charged offenses and that pleading guilty meant that he had waived any right to a jury trial or to an appeal. King acknowledged that he understood the charges, that he had discussed the case with his attorney, and that he was satisfied with his attorney's representation. King agreed that if his case went to trial, the State could meet its burden of proving his guilt beyond a reasonable doubt.
On January 3, 2017, the trial court held a sentencing hearing at which King requested to withdraw his guilty plea because counsel had misadvised him on parole eligibility. King's request was denied, and the sentencing hearing was continued to the following Tuesday so that newly appointed counsel could "deal with this." Counsel stated, "I've talked to Mr. King before I talked to Mr. Luppen. I have a very good understanding of it. I've read the discovery, I've seen the video, but I don't want to pull the trigger on something too quickly."
King was sentenced to ten years' imprisonment in the Arkansas Department of Correction. On April 19, 2017, King filed a petition for relief from conviction under Arkansas Rule of Criminal Procedure 37.1. In his petition, King alleged that his counsel was ineffective based on his failure to pursue a valid motion to suppress evidence. Specifically, King contended that at the suppression hearing, counsel did not play the police patrol vehicle's dash-cam video of the traffic stop that led to King's search and arrest. King contended that Officers Temple and Simmons testified at the suppression hearing that the broken taillight was the sole reason for performing the traffic stop of the car in which King was a passenger; however, the dash-cam video shows that the taillights were in working order and that there was no legal basis for the stop. King asserted that his counsel's assistance was constitutionally inadequate, and he was prejudiced by his counsel's ineffectiveness because the evidence would have likely been suppressed had the video been shown at the hearing. King asserted that he would not have pleaded guilty but for his counsel's error, and he requested a hearing on the petition.
The trial court denied the request for an evidentiary hearing and denied King's Rule 37 motion on the pleadings. In the order, the trial court found that King entered a negotiated plea, and the sole issue when a guilty plea has been entered is whether the plea was intelligently and voluntarily entered. The trial court found that King admitted in open court that he was guilty, that he understood the charges, that he had not been coerced, that he had talked with his attorney and that he was satisfied with his representation; thus, his request was without merit. King filed a timely notice of appeal.
II. Standard of Review
We do not reverse the denial of postconviction relief unless the trial court's findings are clearly erroneous. Johnson v. State , 2018 Ark. 6, at 2, 534 S.W.3d 143, 146. A finding is clearly erroneous when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that the trial court made a mistake. Id.
III. Points on Appeal
A. Plea Made Intelligently, Voluntarily, and on the Advice of Competent Counsel
First, we address the trial court's ruling that when a guilty plea has been entered, the only issue that a petitioner can raise regarding counsel's assistance before the plea was entered is that the plea was intelligently and voluntarily made. Our supreme court held in Polivka v. State , 2010 Ark. 152, at 8-9, 362 S.W.3d 918, 925, that "on appeal from the denial of a Rule 37 petition following pleas of guilty, there are only two issues for review-one, whether the plea of guilty was intelligently and voluntarily entered, two, were the pleas made on the advice of competent counsel."
In the instant case, the trial court clearly erred when it failed to address the second prong of the analysis, and we reverse and remand for the trial court to make the proper findings regarding whether King entered his guilty plea on the advice of competent counsel.
B. Hearing Requirement
We now turn to the trial court's denial of King's request for a hearing. Rule 37.3 of the Arkansas Rules of Criminal Procedure provides that an evidentiary hearing should be held in a postconviction proceeding unless the files and record of the case conclusively show that the prisoner is entitled to no relief. Sanders v. State , 352 Ark. 16, 98 S.W.3d 35 (2003). When the trial court concludes, without a hearing, that the petitioner is not entitled to relief, Rule 37.3(a) requires the trial court to make written findings specifying the parts of the record that form the basis of the trial court's decision. Id. If the trial court fails to make such findings, it is reversible error, unless the record before this court conclusively shows that the petition is without merit. Id. It is not incumbent on this court to scour the record to affirm. Turner v. State , 2016 Ark. 96, 486 S.W.3d 757.
The two issues presented by this case are closely related. As we stated above, the trial court found that due to his guilty plea, the only issue King was permitted to raise was whether he knowingly and voluntarily entered his plea; thus, the effectiveness of his counsel before the plea was entered was not an appealable issue. However, as we stated above, the trial court erred by failing to address the second prong of the analysis, and unlike the issue of the voluntariness and willingness of King's plea, it is not clear on the face of the record and files that there is no merit to King's claim of ineffective assistance of counsel. This leads us to King's second point on appeal: whether the trial court erred in denying his request for an evidentiary hearing to review the dash-cam video that the State provided to counsel. King contends that it was erroneous to deny his request for an evidentiary hearing to review the video, because the dash-cam video shows that the stop was illegal; thus, all evidence against King gathered as a result of this stop would have been suppressed had the video been shown to the court. King contends that without the illegally obtained evidence, the outcome of the hearing would have been different, and he would not have pleaded guilty. We hold that under these specific facts, an evidentiary hearing was necessary for the trial court to ascertain the contents of the dash-cam video and to make findings regarding counsel's effectiveness as it relates to the decision not to play the video at the suppression hearing.
The trial court neither conducted an evidentiary hearing nor cited the parts of the record that conclusively showed that King's claim was without merit and that he was not entitled to relief. This is reversible error, and we remand to the trial court to review the dash-cam video at an evidentiary hearing and to make the appropriate findings regarding the effectiveness of counsel.
Reversed and remanded.
Abramson and Hixson, JJ., agree.
The dash-cam video seems to have been a part of the files of the case, but it was not included in the record. | [
48,
-21,
-4,
30,
9,
97,
42,
56,
-63,
-13,
108,
82,
45,
95,
16,
59,
-5,
127,
117,
121,
-57,
-74,
87,
49,
-14,
-13,
89,
-51,
-73,
-53,
-20,
-68,
94,
96,
-26,
-59,
70,
72,
-25,
90,
-114,
1,
-103,
85,
80,
1,
36,
42,
86,
15,
49,
-98,
-29,
46,
17,
-117,
-51,
44,
91,
-67,
80,
112,
-40,
15,
-49,
0,
-95,
52,
-72,
7,
88,
90,
-104,
57,
1,
-8,
115,
-74,
-126,
52,
107,
-101,
13,
44,
96,
-128,
25,
-17,
-96,
-128,
14,
56,
-99,
38,
-40,
105,
75,
45,
-105,
-97,
125,
20,
46,
-8,
106,
84,
113,
108,
-126,
-49,
-76,
-127,
13,
32,
22,
107,
-53,
1,
112,
113,
-51,
-26,
92,
-41,
115,
-37,
-114,
-105
] |
ROBERT J. GLADWIN, Judge
After a lengthy history of guilty pleas to revocations of his probationary sentences and resulting re-impositions, on March 6, 2017, William Terrance Anderson pleaded guilty to having violated a condition of his probation by testing positive for cannabinoid, cocaine, and alcohol on June 23, June 27, and June 29, 2016. His plea statement was filed on March 7, 2017. The circuit court accepted Anderson's guilty plea and on June 1, 2017, sentenced Anderson to two years' imprisonment. A sentencing order was entered on June 7, 2017, and Anderson filed a timely notice of appeal on June 16, 2017.
Anderson's counsel has now filed a motion to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Arkansas Supreme Court Rule 4-3(k) (2017). The clerk of this court furnished Anderson with a copy of his counsel's brief and notified him of his right to file pro se points; Anderson did not file any points.
Anderson is not permitted to bring an appeal from his plea of guilty. Rule 1(a) of the Arkansas Rules of Appellate Procedure-Criminal (2017) provides, "Except as provided by A.R.Cr.P. 24.3(b) there shall be no appeal from a plea of guilty or nolo contendere." Anderson's plea was neither a conditional plea pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure nor one of the two exceptions to Rule 1(a) that have been recognized by our supreme court-(1) when the issue on appeal concerns evidentiary errors arising after the guilty plea but during the sentencing phase of the trial, regardless of whether it was a jury trial or a bench trial, or (2) when the issue is the denial of a postjudgment motion to amend an incorrect or illegal sentence. Cox v. State, 2014 Ark. App. 429, at 2 (citing Houston v. State, 2014 Ark. App. 344 ; Hubbard v. State, 2012 Ark. App. 443 ). Anderson's appeal is therefore dismissed.
Appeal dismissed; motion to withdraw granted.
Glover and Whiteaker, JJ., agree.
An amended sentencing report was filed on June 21, 2017, but it did not make material changes with respect to Anderson's sentence.
The packet was returned to the clerk's office marked "Return to Sender-Attempted-Not Known Unable to Forward" on February 20, 2018. Counsel was contacted via email on February 23, 2018, in an attempt to gain additional contact information. The Pulaski County Public Defender's Office responded, stating that the only other information available was from former case files and, that they had reached out to Anderson's probation officer in an attempt to gain additional contact information, but that and the calls had not been returned. | [
112,
-20,
-28,
92,
44,
-31,
58,
-76,
82,
-25,
-17,
83,
-21,
-9,
16,
123,
-61,
93,
116,
-39,
-55,
-73,
53,
-16,
-29,
-13,
-53,
87,
-75,
79,
-84,
-108,
10,
96,
-62,
-91,
70,
-64,
-29,
92,
-114,
1,
-103,
108,
64,
-61,
33,
47,
23,
15,
49,
-66,
-5,
47,
25,
74,
73,
108,
91,
-82,
88,
-111,
-112,
15,
-17,
20,
-93,
53,
-101,
5,
120,
62,
-36,
49,
1,
-8,
55,
-106,
-122,
84,
75,
59,
68,
96,
-30,
1,
93,
103,
-67,
-120,
22,
127,
-99,
-25,
-40,
-47,
75,
13,
-105,
-75,
118,
22,
12,
-2,
110,
21,
101,
104,
-128,
-58,
-108,
-111,
28,
21,
4,
123,
-5,
39,
16,
101,
-52,
-30,
92,
94,
123,
91,
-46,
-106
] |
RAYMOND R. ABRAMSON, Judge
Appellant Tabatha Burgess, now known as Tabatha Toney (Toney), appeals the circuit court's reformation of a decree reflecting a mutual mistake. Toney argues that (1) the circuit court admitted evidence in violation of the parol-evidence rule, (2) the circuit court was without jurisdiction to modify the decree pursuant to Arkansas Rule of Civil Procedure 60, and (3) the circuit court's reformation of the decree was clearly erroneous because there was no evidence to support a finding of mutual mistake. We disagree and affirm.
I. Factual and Procedural History
Toney filed a complaint for absolute divorce from appellee Jerry Burgess on January 5, 2016. The parties negotiated a property-settlement agreement and signed the agreement on July 11, 2016. The circuit court signed the Decree for Divorce incorporating but not merging the Property Settlement Agreement (Agreement) on July 29, 2016. In its order, the circuit court reserved general jurisdiction over the case to ascertain and enforce all rights and obligations of the parties under the decree. The Agreement provided that "Wife agrees to pay the 2014 personal property tax debt." On September 8, 2016, Burgess filed a "Motion to Correct Scrivener's Error," and the circuit court held a hearing on the motion on November 22, 2016.
At the hearing, Burgess testified that the Agreement should have read "Wife agrees to pay the 2014 income tax debt" instead of "Wife agrees to pay the 2014 personal property tax debt." The 2014 personal property taxes were $225.36, and the 2014 income taxes were $12,500. Burgess testified that he did not discover the error in the Agreement until Toney mentioned to him on the phone that she did not have to pay the income taxes according to the paperwork and laughed at him. Toney testified that she did not laugh at Burgess and that she believed the settlement properly reflected the agreement of the parties that she would pay the personal property taxes. Burgess's attorney, George Ellis, stated to the circuit court that it was an overlooked error on his part and that the agreement was supposed to read "income tax debt" rather than "personal property tax debt." The circuit court stated that, based on everything it had seen and heard, the parties intended to settle the income tax debt. The circuit court found a mutual mistake and reformed the decree to reflect this correction. The circuit court signed its order modifying the decree on November 29, 2016.
II. Rule 60
First, Toney alleges that the circuit court lacked jurisdiction to modify the decree because it violates the ninety-day restriction in Arkansas Rule of Civil Procedure 60(a) and was not entered to correct a clerical error described in Rule 60(b).
A circuit court may modify an order or decree within ninety days of entry to correct errors or mistakes in the decree. Ark. R. Civ. P. 60(b). A circuit court's findings under Rule 60 are reviewed under an abuse-of-discretion standard. Linn v. Miller , 99 Ark. App. 407, 261 S.W.3d 471 (2007). The circuit court may modify the decree after ninety days of its entry to correct clerical errors. Ark. R. Civ. P. 60(b). When parties to a divorce action enter into an independent agreement to settle property rights, the agreement may not be subsequently modified once approved by the court and incorporated into the decree. Jones v. Jones , 26 Ark. App. 1, 759 S.W.2d 42 (1988). However, a general reservation of jurisdiction will allow a circuit court to modify a decree after ninety days with respect to issues that the circuit court considered in the original action. Carver v. Carver , 93 Ark. App. 129, 217 S.W.3d 185 (2005).
Although this was not a clerical error contemplated by Rule 60(b), the circuit court had jurisdiction to modify the decree more than ninety days after its entry. The circuit court reserved jurisdiction over the decree and therefore did not violate Rule 60 by exercising jurisdiction. As we stated in Jones , the circuit court may modify the decree with respect to issues that it considered. Since the court specifically considered the issue of payment of income tax debt, the court retained jurisdiction to modify that issue. The record also shows that the circuit court determined everything the parties said and did reflected that they intended to include the "2014 income tax debt." Therefore, the circuit court did not abuse its discretion in finding that it retained jurisdiction over the issue through the general reservation in the decree.
Toney relies on Linn to support her argument that the circuit court did not have jurisdiction to modify its decree under Rule 60. In Linn , we held that the circuit court abused its discretion when it modified a decree after ninety days had passed because the modification of the decree concerned issues that were not considered by the circuit court in the original action. The decree provided for property settlement, and the circuit court subsequently modified its decree to provide for a subsequent sale of property and contribution by the other party to extinguish the mortgage on the property. We ruled that, since these issues were not considered by the circuit court in the original action, the general reservation of jurisdiction over the parties did not give the circuit court jurisdiction over the sale of property. Id.
Toney also attempts to distinguish Carver to find that the circuit court abused its discretion in exercising jurisdiction. In Carver , we affirmed the circuit court's exercise of jurisdiction to modify a decree over a retirement account that the parties had left out of the decree. There, we held that the circuit court did not abuse its discretion because undisputed evidence showed that the parties intended to divide the retirement account in the original action, and the circuit court specifically reserved jurisdiction over the retirement account prior to ninety days after the original action. Id.
The present case is more similar to Carver , in which the circuit court retained jurisdiction over issues it originally considered in the decree. Linn is distinguishable from the present case, because the issue of the sale of property in Linn was never considered by the circuit court in the original action. Here, the circuit court considered the issues of property division and made a factual determination that, at the time the decree was entered, the parties intended to include the income tax debt. While these are not undisputed facts, we cannot say that the circuit court abused its discretion in determining that it retained general jurisdiction over the issue of the "2014 income tax debt" because this issue was properly considered by the circuit court in its original decree. Therefore, the circuit court did not abuse its discretion in exercising jurisdiction to modify its decree.
III. Parol Evidence
Next, we address Toney's argument on the parol-evidence rule. The parol-evidence rule bars introduction of evidence that adds or varies the parties' written contract that is unambiguous in the absence of fraud, duress, or mutual mistake. Walt Bennett Ford, Inc. v. Dyer , 4 Ark. App. 354, 631 S.W.2d 312 (1982). Parol evidence is admissible in reformation cases based on mutual mistake. Stalter v. Gibson , 2010 Ark. App. 801, at 8, 379 S.W.3d 710, 715. In the present case, Burgess argued a mutual mistake to the circuit court and argues mutual mistake on appeal. The circuit court found a mutual mistake at the hearing. Therefore, the parol-evidence rule does not bar the introduction of Burgess's testimony because the circuit court based its reformation on a mutual mistake. The circuit court did not clearly err in ruling that the parol-evidence rule did not apply.
IV. Mutual Mistake
Finally, we address Toney's argument that the circuit court clearly erred in finding a mutual mistake between the parties. As we have previously stated:
Reformation is an equitable remedy that is available when the parties have reached a complete agreement but, through mutual mistake, the terms of their agreement are not correctly reflected in the written instrument purporting to evidence the agreement. A mutual mistake is one that is reciprocal and common to both parties, each alike laboring under the same misconception in respect to the terms of the written instrument. A mutual mistake must be shown by clear and decisive evidence that, at the time the agreement was reduced to writing, both parties intended their written agreement to say one thing and, by mistake, it expressed something different. Whether a mutual mistake warranting reformation occurred is a question of fact. Even in reformation cases, where the burden of proof is by clear and convincing evidence, we defer to the superior position of the trial judge to evaluate the evidence, and the proof need not be undisputed.
Mauldin v. Snowden , 2011 Ark. App. 630, at 8, 386 S.W.3d 560, 565 (citing Lawrence v. Crafton , 2010 Ark. App. 231, 374 S.W.3d 224 ). The standard of review of the circuit court's ruling is whether its ruling was clearly erroneous. Statler v. Painter , 84 Ark. App. 114, 133 S.W.3d 425 (2003).
In Mauldin , the appellant argued that the reformation was clearly erroneous because the evidence supported only a finding of unilateral mistake on the issue of whether the appellee was to receive mineral rights under the contract. There, the parties disputed whether mineral rights were intended to be conveyed when there was no mention of the mineral rights. We ruled that the finding of a mutual mistake was a credibility determination for the circuit court and upheld the court's reformation. Id. We held that a party's testimony that mineral rights were never discussed allowed the court to give credibility to the testimony and conclude by clear and convincing evidence that a mutual mistake occurred between the parties. Id.
The present case is similar to Mauldin because the circuit court heard testimony from Burgess about the intent of the parties. The circuit court based its ruling on its knowledge of the proceedings between the parties and determined that Burgess's testimony was credible. Although Toney disputes Burgess's testimony, this dispute alone does not make the circuit court's findings clearly erroneous. The circuit court made a credibility determination and found that the parties intended the decree to read "2014 income tax debt" instead of "2014 personal property tax debt" based on testimony it heard. The appropriate remedy for the circuit court upon finding a mutual mistake based on testimony before it was to reform the decree to reflect what the parties intended. Therefore, the circuit court's reformation of the decree was not clearly erroneous. We affirm the circuit court's order.
Affirmed.
Vaught and Hixson, JJ., agree. | [
16,
104,
-11,
95,
-88,
-64,
42,
-116,
106,
-119,
39,
-45,
-93,
-58,
16,
43,
-30,
59,
97,
105,
-11,
-74,
11,
64,
-14,
-77,
-47,
95,
-75,
-49,
-12,
-42,
93,
113,
-62,
-11,
70,
66,
-113,
88,
-50,
11,
-118,
101,
-40,
-60,
112,
61,
0,
15,
53,
-82,
-78,
-85,
61,
-53,
108,
44,
89,
57,
88,
-8,
-110,
13,
107,
3,
-111,
53,
-110,
-121,
-6,
10,
-124,
49,
8,
-22,
115,
-74,
-106,
84,
13,
-103,
13,
96,
98,
1,
77,
-11,
-56,
-120,
110,
127,
-83,
-90,
-112,
72,
64,
12,
-82,
-108,
84,
86,
7,
126,
100,
-115,
93,
108,
-82,
-114,
-44,
-111,
-115,
16,
-108,
19,
-21,
3,
-80,
113,
-57,
-18,
93,
6,
51,
-109,
-33,
-42
] |
RAYMOND R. ABRAMSON, Judge
John Edward Rockins appeals his conviction of aggravated robbery for which he was sentenced to 60 years' imprisonment in the Arkansas Department of Correction for the aggravated-robbery conviction. He challenges the sufficiency of the evidence presented at trial, arguing that he never threatened to use force against the store clerk. We affirm his conviction.
At trial, the State presented the testimony of the store clerk, Candice Thomas, who testified that Rockins entered the convenience store and told her, "this is a god-damned robbery." Thomas testified that she saw the handle of a gun in Rockins's waistband and that his right hand was on the gun. She testified that he never took out the gun, pointed it at her, or mentioned it. After Rockins told her it was a robbery, she put her hands up and started handing Rockins money from the cash register. Rockins then left, and Thomas went outside the convenience store to call the police. The State played the 911 call at trial, and the dispatcher told Thomas multiple times to take a deep breath and to calm down because Thomas was audibly upset by the incident. Later, when the detective working the case showed Thomas a photo lineup of suspects, she began to tremble, shake visibly, and tear up when she saw the photo of Rockins.
In a challenge to the sufficiency of evidence presented at trial, this court considers only the evidence supporting the conviction in the light most favorable to the State and determines whether the verdict is supported by substantial evidence. Sweet v. State , 2011 Ark. 20, at 9, 370 S.W.3d 510, 518. Substantial evidence is evidence that is forceful enough to compel a conclusion beyond suspicion or conjecture. Id. Because a criminal defendant's intent can seldom be proved by direct evidence, it must usually be inferred from the circumstances surrounding the crime. Feuget v. State , 2012 Ark. App. 182, at 2, 394 S.W.3d 310, 311. Jurors are allowed to draw upon their common knowledge and experience to infer intent from the circumstances, and it is presumed that a person intends the natural and probable consequences of his or her acts. Id.
Rockins argues that he never threatened to harm Thomas; therefore, sufficient evidence was not established to convict him of aggravated robbery. A person commits robbery if, with the purpose of committing a felony or misdemeanor theft, "the person employs or threatens to immediately employ physical force upon another person." Ark. Code Ann. § 5-12-102(a) (Repl. 2013). A person commits aggravated robbery if the person commits a robbery while armed with a deadly weapon. Ark. Code Ann. § 5-12-103(a).
When the appellant makes no mention that he or she is armed, this court focuses on what the victim perceived concerning a deadly weapon. Feuget , supra. In Feuget , the appellant argued that he could not be charged with two counts of robbery because he threatened only one victim, and he could not have threatened a victim behind him who did not see a deadly weapon. Feuget entered a bank and handed bags to bank tellers. Id. The bank manager, Mr. Long, testified that Feuget pulled up his shirt and showed something to the bank tellers. Id. Mr. Long did not see what was in Feuget's waistband, and Feuget did not say anything to Mr. Long. Id. Mr. Long began filling the bags with money. Id. This court affirmed Feuget's conviction of aggravated robbery against Mr. Long because Mr. Long felt threatened and believed that he should comply with whatever Feuget wanted so that Feuget would leave as soon as possible. Id.
There is no requirement that a threat of physical harm be made directly or indirectly to a victim-only that it be immediately threatened, however that may be communicated. Robinson v. State , 317 Ark. 17, 875 S.W.2d 837 (1994). In Robinson , our supreme court held that the appellant committed aggravated robbery against a customer in harm's way even though the appellant only directly threatened a store clerk.
In the present case, the evidence is sufficient to support Rockins's conviction that he committed aggravated robbery against Candice Thomas. Thomas testified that she saw a gun in Rockins's waistband and that Rockins's hand was on the gun when he told her it was a robbery. Thomas testified that she was scared and manifested her fear by throwing her hands in the air and then giving money to Rockins. Her fear was further manifested by her terrified demeanor on the phone with the 911 dispatcher and her trembling and tearful reaction when shown Rockins's photo. By telling Thomas it was a robbery and holding his hand on a gun, Rockins communicated a threat of imminent harm to Thomas. Whether Rockins verbally conveyed that he was going to harm Thomas is irrelevant, as this court held in Feuget and our supreme court held in Robinson .
There, sufficient evidence supported convictions when victims did not even see a weapon, because the victims perceived a threat communicated by appellants' actions toward other victims. Thomas perceived a threat when she saw Rockins's hand on a gun and he told her it was a robbery. The jury chose to believe her testimony; consequently, sufficient evidence supports Rockins's conviction of aggravated robbery. Therefore, we affirm his conviction.
Affirmed.
Gruber, C.J., and Klappenbach, J., agree.
Rockins was also convicted of theft of property and sentenced to an additional 20 years in the Arkansas Department of Correction. He appeals only the aggravated-robbery conviction. | [
80,
-22,
-32,
-67,
41,
-32,
48,
-72,
98,
-89,
117,
-77,
-91,
-32,
21,
105,
-12,
95,
85,
113,
-41,
-77,
15,
-31,
-14,
-77,
25,
71,
49,
-37,
-27,
-44,
92,
112,
-30,
89,
102,
72,
-25,
88,
-116,
33,
-86,
82,
115,
-128,
32,
42,
96,
7,
-79,
-68,
-29,
10,
26,
-58,
73,
44,
75,
-66,
114,
123,
-38,
-99,
-19,
20,
-93,
36,
-97,
35,
-40,
60,
-100,
49,
32,
120,
115,
-90,
-126,
84,
109,
-103,
12,
96,
98,
50,
-100,
-51,
-84,
-127,
-90,
127,
-107,
-90,
-102,
64,
73,
45,
-105,
-42,
110,
53,
12,
-20,
113,
94,
112,
108,
7,
-33,
-10,
-80,
13,
61,
22,
-5,
-21,
37,
-108,
53,
-49,
-30,
92,
85,
120,
-101,
-98,
-74
] |
Fisher testified that Farmer had threatened her before but nothing had ever happened, so she felt comfortable taking a nap after receiving the threatening messages. She woke up to Farmer beating on her door. Fisher told him to leave or she would call the police, but before she could do so Farmer kicked open the door, which flung her back. She said that Farmer came in with his flak jacket and AR-15 and started beating her with closed fists. She said that she was pinned underneath him and begged him to stop as he hit her on the legs, abdomen, and groin area. He also hit her on the head, slapped her, and held a knife to her cheek and threatened to disfigure her face. He called her names, told her that she was going to die, and when she told him that her children would be home soon, he said that they could die with her. Farmer also told her that he was going to take her belongings because she owed him money and asked where her AR-15 and television were.
Fisher testified that when Farmer went to get her gun, she ran across the street to tell her neighbor to call 911. She said that she then saw Farmer put her AR-15 in his car and start to bring her television out to the car. Fisher took her AR-15 out of the car, but Farmer saw her and jerked it out of her hands and flung it in the yard. He then put her in a chokehold and dragged her back in the house. Fisher said that he again started hitting her and threatening to kill her, but he stopped and let go of her when he heard police sirens. Photos of Fisher's injuries were admitted into evidence, and she said that she had been diagnosed with a concussion.
The messages in State's exhibit 20 were then read to the jury. The lengthy conversation between Fisher and Farmer begins at 8:58 a.m. and consists of arguing about their relationship and other matters. The messages contain numerous threats sent by Farmer, including the following:
If you mouth my kid I will shove my thumb through your eye
I will bust your fucking teeth out today
I'm going to hurt you today
I'm going to kill you
I'm smashing your phone again
You face is going to be fucked up again
I'm going to take your stuff like you did mine
Goodbye tv's
Bringing my AR also
I'm ready to die, are you?
You don't realize how addicting beating the fuck out you has become ... I love it ... Almost as good as killing
They are going to call me the butcher
I'm going to have your tongue in a jar on my shelf
Call the cops ... I need a little challenge ... Then there will be blood everywhere
Loading my guns just in case
In the messages, Farmer tells Fisher that he will be coming to her house in a few hours and will get his money or the equivalent. When she replies that she will not be home and threatens to call the police, Farmer states, "Yeah I've never kicked a door in remember." Fisher testified that the exhibit accurately reflected the text conversation they had before Farmer came to her house. At one point in the conversation, Farmer tells Fisher to answer her phone and says that he has called her "over and over." Eight brief voicemail messages that Farmer left on Fisher's phone were played for the jury. In the messages, Farmer said that he was going to come to her house and kick in her door, that he was going to shut her mouth and hurt her bad, and that he was going to get his money and stuff back. Fisher testified that she did not owe him money and had not taken any of his belongings.
On cross-examination, after Fisher reaffirmed that the text messages admitted into evidence were an accurate and complete copy, the defense told her that it has a copy of the messages, and it "reads a little differently." At a bench conference, the defense said it intended to present impeachment evidence that the State's exhibit was not the full record of the text messages. After Fisher testified that there were additional messages exchanged between her and Farmer on the morning of January 4 that were not included in the State's exhibit, the defense argued that the authentication of the State's exhibit was no longer valid. The court replied that the exhibit had already been admitted and that it was now a credibility issue. The defense then attempted to authenticate an exhibit of its version of the text messages, which appeared to come from Farmer's phone. Fisher testified that the messages in the defense exhibit were additional messages that she exchanged with Farmer that were not in the State's exhibit. The court admitted the exhibit over the State's objections. At the conclusion of that day's testimony, Farmer moved to strike State's exhibit 20 because Fisher authenticated it "with essentially what amounts to perjury." The court denied the motion as well as Farmer's subsequent motion for a mistrial based on the admission of the text messages.
When the trial resumed the following day, the defense's cross-examination of Fisher continued wherein she acknowledged certain text messages sent by her that were included in the defense's exhibit but missing from the State's exhibit. In addition to further texts about their relationship, these texts included messages sent by Fisher stating, "I'm going to keep your dick and put it on my shelf," "I want to break everything in your piece of shit trailer," and "You are white trash ... Just die already ... Nobody would care or miss you." The defense exhibit also included a lengthy text from Farmer accusing Fisher of destroying certain items at his home and telling her to return his things and the money she owed him.
On redirect examination, Fisher testified that after comparing both exhibits side by side, she recognized that each contained messages that had been deleted from the other exhibit. The court overruled the defense's objection that the State's exhibit should not be in evidence because Fisher admitted it was not authentic. Fisher then read through the exhibits together, identifying what was missing from each exhibit, and she acknowledged that she had deleted messages that painted her in an unfavorable light. Likewise, many of the threats made by Farmer in the State's exhibit were missing from the defense's exhibit. Fisher testified that she did not add any messages to the State's exhibit.
Farmer's ex-wife testified that Farmer had admitted to her that he had fought with Fisher over the phone and had punched her in the legs. She said that Farmer told her that before the incident, Fisher had messed up his house and stolen his steroids, but instead of telling the police about his steroids, he told them that she had stolen one of his guns that was already missing. Farmer's friend Jason Sandboothe was the sole witness for the defense. Sandboothe testified that on December 21, 2015, he and Farmer returned to Farmer's house, where they had earlier left Fisher, to find that Farmer's belongings had been strewn about the house and yard and that money, military items, and his AR-15 were missing. Sandboothe acknowledged on cross-examination that the police report reflected that a pistol, not the AR-15 had been stolen.
The jury found Farmer guilty of aggravated robbery, aggravated residential burglary, terroristic threatening, and domestic battery; he was found not guilty of aggravated assault on a family or household member. He was sentenced to twenty-two years' imprisonment, with all sentences running concurrent to the others. Farmer moved for a new trial based on the State's use of the text messages and voicemails. The circuit court denied the motion, and Farmer now appeals.
The decision whether to grant a new trial is left to the sound discretion of the circuit court, and it is not reversed in the absence of an abuse of discretion or manifest prejudice to the complaining party. Johnson v. State , 2017 Ark. 106, 515 S.W.3d 116. Farmer argues that a new trial is warranted because the text messages in the State's exhibit were admitted into evidence based on perjured testimony, and the State continued to rely on the text messages after Fisher admitted that they were not authentic. Farmer argues that the State's use of the text messages stripped away any pretense of a fair trial and irreparably prejudiced him before the jury.
A document must be authenticated before it can be admitted as evidence. Duvall v. State , 2018 Ark. App. 155, 544 S.W.3d 106. Arkansas Rule of Evidence 901(a) provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Rule 901 further provides that the testimony of a witness with knowledge that a matter is what it is claimed to be is sufficient to authenticate evidence and also that appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances, can be used to authenticate evidence. Ark. R. Evid. 901(b)(1) & (4). We review the authentication of text messages for an abuse of discretion and do not reverse absent a showing of prejudice. Duvall , supra .
In Gulley v. State , 2012 Ark. 368, at 10, 423 S.W.3d 569, 576, the supreme court held that there was sufficient evidence to authenticate text messages from the defendant's phone as being authored by the defendant based on the content of the messages, the defendant's behavior consistent with the messages, and witnesses' testimony that they had been having a text conversation with the defendant. In Duvall , supra , this court held that there was sufficient circumstantial evidence to authenticate photographs of text messages on the victim's phone where the content of the messages suggested that the defendant did send or could have sent them and no direct proof undermined the messages' authenticity.
Here, at the time the State's exhibit was admitted into evidence, Fisher had testified that the messages were texts exchanged between her and Farmer before he arrived at her house. Farmer's mother had also testified that Farmer told her he had been having a "text fight" with Fisher before going to her house. The messages sent by Farmer included ones referring to his military service and ones talking about his son by name. Further, the messages contained statements by Farmer that were consistent with his subsequent behavior-specifically, that he was coming to Fisher's house with his guns and that he would kick her door in and beat her. Although Farmer had argued prior to trial that the text conversation may have been altered or fabricated, he presented no direct proof that undermined the messages' authenticity at the time the exhibit was admitted. Authentication requirements are satisfied if the circuit court, in its discretion, concludes that the evidence presented is genuine and, in reasonable probability, has not been tampered with or altered in any significant manner. Kauffeld v. State , 2017 Ark. App. 440, 528 S.W.3d 302.
Despite being armed with its own version of the messages from Farmer's phone, the defense did not use this evidence to object to the authentication of the State's exhibit before it was admitted into evidence and read to the jury. Instead, Farmer chose to wait until after the State's exhibit was admitted to use his version to impeach Fisher's credibility. When presented on cross-examination with what Farmer implied was the accurate and complete version of the text messages, Fisher admitted that the State's exhibit was not accurate and complete because she had deleted some of the messages. Contrary to Farmer's claim that the State failed to correct Fisher's false testimony, on redirect examination Fisher identified the messages she had deleted.
Under the circumstances presented here, we need not decide whether the circuit court erred in failing to strike State's exhibit 20. We hold that even if the circuit court did err in that regard, any error was harmless. The supreme court has said that even when a circuit court errs in admitting evidence, we will affirm the conviction and deem the error harmless if there is overwhelming evidence of guilt and the error is slight. Rodriguez v. State , 372 Ark. 335, 276 S.W.3d 208 (2008). To determine if the error is slight, we look to see whether the defendant was prejudiced by the erroneously admitted evidence. Id. Prejudice is not presumed, and we will not reverse a conviction absent a showing of prejudice to the defendant. Id. When the erroneously admitted evidence is merely cumulative, there is no prejudice, and a conviction will not be reversed for harmless error in the admission of evidence. Id.
Had the text messages not been admitted into evidence, overwhelming evidence of Farmer's guilt remained. Fisher testified that Farmer kicked in her door while armed with a gun, beat her with his fists, held a knife to her cheek, threatened to disfigure and kill her, and attempted to steal her gun and television. Fisher's testimony was corroborated by that of her neighbor and the police officers, as well as photographs of her injuries. Further, both Farmer's mother and his ex-wife testified that he had admitted to them that he had beaten Fisher. Had the text messages been struck after Fisher admitted on cross-examination that she had deleted some messages, the same evidence recounted above would still have existed to overwhelmingly prove Farmer's guilt as to aggravated robbery, aggravated residential burglary, terroristic threatening, and domestic battery in the third degree. Furthermore, any risk of prejudice resulting from admitting or failing to strike the exhibit was slight. Farmer contends that we should conclude that "Fisher's perjury and altered messages could have affected the jury's judgment," but we are not left to speculate on this point. Farmer successfully impeached Fisher's credibility by exposing her false testimony to the jury. The inaccuracy of State's exhibit 20 was brought to light by the defense, and the jury was provided with the missing messages contained in the defense exhibit. Unlike the cases from other jurisdictions relied on by Farmer, the false testimony here was revealed to the jury at trial.
In his second point, Farmer argues that the admission of the voicemails denied him a fair trial because he was denied an adequate opportunity to investigate and prepare to defend against them. He contends that had the voicemails been timely disclosed, an expert could have been retained to challenge their authenticity. When a party fails to comply with a discovery rule, the court may exercise any of the following options: order that party to permit the discovery or inspection of materials not previously disclosed; grant a continuance; prohibit the party from introducing the material; or enter another order that the court deems proper under the circumstances. Ark. R. Crim. P. 19.7. It is within the circuit court's discretion which sanction to employ. Hicks v. State , 340 Ark. 605, 12 S.W.3d 219 (2000). Farmer argues, however, that given the late disclosure and the importance of the evidence, simply permitting discovery was not an appropriate remedy.
A prosecutorial discovery violation does not automatically result in reversal. Id. The key in determining if a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor's failure to disclose. Id. Absent a showing of prejudice, we will not reverse. Id. When the State fails to provide information during discovery, the burden is on the appellant to show that the omission was sufficient to undermine the confidence in the outcome of the trial. Barnes v. State , 346 Ark. 91, 55 S.W.3d 271 (2001).
Here, the voicemails were disclosed to the defense on September 1; however, the defense did not bring the matter to the circuit court's attention until ten days later on the day the jury had been called and trial was scheduled to begin. As stated above, it is within the circuit court's discretion whether to exclude the evidence. Although the State may have committed a discovery violation, the defense cannot sit on that information for ten days before bringing it to the court's attention and then ask for a continuance on the day of trial. Assuming, without deciding, that the circuit court erred in admitting the voicemail messages, we again hold that any error was harmless. Even without the voicemails, the evidence of Farmer's guilt was overwhelming. Farmer's statements in the brief voicemails were testified to by Fisher and found within the text messages. Therefore, Farmer cannot show prejudice because the voicemails were merely cumulative. See Rodriguez, supra. Under these circumstances, we hold that the circuit court did not abuse its discretion in denying Farmer's motion for a new trial.
Affirmed.
Virden, J., agrees.
Whiteaker, J., concurs.
Farmer claims on appeal that Fisher authenticated the defense exhibit as a "genuine copy of the text conversation" and only reneged on her testimony the next day. However, Fisher never testified that the defense exhibit was a genuine, accurate, or complete copy of the text messages. The exhibit was admitted after she testified that it merely contained text messages she had sent Farmer.
See Ark. Code Ann. § 5-12-103(a)(1) (Repl. 2013); Ark. Code Ann. § 5-39-204(a)(1) (Repl. 2013); Ark. Code Ann. § 5-13-301(a)(1)(A) (Supp. 2017); Ark. Code Ann. § 5-26-305(a)(1) (Supp. 2017). | [
17,
-18,
-88,
-113,
41,
33,
106,
-104,
-16,
-125,
-16,
-77,
-17,
-29,
80,
105,
124,
53,
85,
109,
82,
-77,
111,
97,
-14,
123,
48,
-47,
-94,
75,
-84,
-3,
73,
112,
-54,
81,
34,
-112,
-25,
92,
-126,
-107,
-87,
-8,
-110,
-62,
-24,
43,
70,
7,
53,
-116,
-13,
47,
53,
-50,
9,
108,
98,
-67,
64,
61,
-103,
31,
-119,
34,
-77,
-94,
-98,
33,
-38,
28,
-103,
-79,
0,
-88,
123,
-94,
-128,
116,
109,
-116,
92,
102,
99,
0,
-115,
68,
72,
-63,
-114,
116,
-35,
7,
24,
105,
1,
12,
-65,
-103,
118,
-108,
14,
-22,
113,
94,
121,
100,
-90,
-43,
-44,
-79,
79,
120,
-36,
-8,
-29,
55,
36,
113,
-51,
-78,
100,
69,
112,
-101,
-97,
-13
] |
RAYMOND R. ABRAMSON, Judge
The Crawford County Circuit Court revoked Michael Dye's suspended sentences in case numbers CR-09-315, CR-12-241, and CR-13-50, and sentenced him to 144 months' imprisonment and 96 months' suspended sentence. Pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Rule 4-3(k)(1) of the Rules of the Arkansas Supreme Court and Court of Appeals, Dye's attorney has filed a no-merit brief, along with a motion to withdraw as counsel, asserting that there is no issue of arguable merit for an appeal. Dye was notified of his right to file pro se points for reversal via certified mail, but he has not done so. We affirm the revocation and grant counsel's motion to withdraw.
On March 1, 2010, Dye pled guilty to possession of methamphetamine in case number CR-09-315. The court sentenced him to 24 months in a regional correctional facility (RCF) followed by 96 months' suspended sentence. His suspended sentence was conditioned on good behavior.
On March 7, 2013, the State filed a petition to revoke Dye's suspended sentence in case number CR-09-315. The State alleged that Dye had committed the new offenses of theft of property, residential burglary, and failure to appear in case number CR-12-241 and second-degree forgery in case number CR-13-50.
On March 13, 2013, Dye pled guilty to the charges of theft of property, residential burglary, and failure to appear in case number CR-12-241 and second-degree forgery in case number CR-13-50. The court sentenced him to 24 months in an RCF and 120 months' suspended sentence. His suspended sentence was conditioned on good behavior.
On June 27, 2017, the State filed a petition to revoke Dye's suspended sentence in case numbers CR-09-315, CR-12-241, and CR-13-50. In the petition, the State alleged that on June 14, 2017, Dye had committed the offenses of felon in possession of a firearm, possession of methamphetamine, and possession of drug paraphernalia. The State charged him as a habitual offender. The court set a revocation hearing for August 23, but Dye did not appear for the hearing.
On September 14, the State amended its petition to revoke to allege that Dye had failed to appear for the August 23 revocation hearing. The State further alleged that on July 2, Dye had committed the offense of fleeing on foot in case number VAS-17-1789, and that on July 27, Dye had failed to appear in that case.
The court held a second revocation hearing on September 20. At the beginning of the hearing, Dye requested a continuance due to health issues. The court inquired whether Dye had a doctor's note, and Dye responded that he did not. The court then denied the continuance, noting that the hearing had already been continued once due to Dye's failure to appear.
At the conclusion of the hearing, the court found that Dye had violated the terms and conditions of his suspended sentence by failing to appear for the August revocation hearing and by committing the offense of felon in possession of a firearm. As previously stated, the court sentenced him to 144 months' imprisonment and 96 months' suspended sentence. This no-merit appeal followed.
On appeal of a revocation, we review whether the circuit court's findings are clearly against the preponderance of the evidence. Jones v. State , 2013 Ark. App. 466, 2013 WL 4766701. To revoke a suspended sentence, the State has the burden of proving by a preponderance of the evidence that a condition of the suspended sentence was violated. Id. Evidence that is insufficient to support a criminal conviction may be sufficient to support a revocation. Joiner v. State , 2012 Ark. App. 380, 2012 WL 2129351. Proof of just one violation of the terms and conditions of release is sufficient to support revocation. Richardson v. State , 85 Ark. App. 347, 157 S.W.3d 536 (2004).
Dye's counsel argues that there are no meritorious grounds for appeal and asks to withdraw as counsel. A request to withdraw because the appeal is wholly without merit must be accompanied by a brief that contains a list of all rulings adverse to appellant and an explanation as to why each ruling is not a meritorious ground for reversal. Ark. Sup. Ct. R. 4-3(k)(1). The brief must contain an argument section that consists of a list of all rulings adverse to the defendant made by the circuit court on all objections, motions, and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. Id. In deciding whether to allow counsel to withdraw from appellate representation, the test is not whether counsel thinks the circuit court committed no reversible error but whether the points to be raised on appeal would be wholly frivolous. Williams v. State , 2013 Ark. App. 323, 2013 WL 2112203.
Here, counsel has adequately explained why an appeal would be wholly frivolous. Dye's suspended sentence was conditioned on good behavior, and the evidence showed that Dye failed to appear for the August revocation hearing. Specifically, Stephanie Smith, the Crawford County Circuit Clerk, testified that Dye had failed to appear for the August 23, 2017 revocation hearing. Smith stated that notice of the hearing was sent to Dye, his attorney, and his bonding company on July 18, 2017, and the State introduced that notice into evidence. Accordingly, there was sufficient evidence for the circuit court to find by a preponderance of the evidence that Dye violated a condition of his suspended sentence.
The only other adverse ruling was the denial of Dye's request for a continuance. A circuit court's decision to grant or deny a continuance will not be reversed absent an abuse of discretion amounting to a denial of justice. Hamilton v. State , 2013 Ark. App. 12, 2013 WL 171904. We agree with counsel that the circuit court did not abuse its discretion in denying Dye's request and that there is no basis for reversal in this adverse ruling.
Accordingly, from our review of the record and the brief submitted by Dye's counsel, we find that there has been compliance with Rule 4-3(k) and that the appeal is wholly without merit. We therefore affirm the revocation and grant counsel's motion to withdraw.
Affirmed; motion granted.
Gruber, C.J., and Vaught, J., agree. | [
16,
-22,
85,
28,
40,
-127,
27,
-80,
82,
-113,
-75,
83,
-21,
-26,
69,
57,
-31,
125,
112,
121,
-64,
-74,
87,
-63,
-22,
-77,
-69,
67,
-69,
79,
-20,
-99,
30,
112,
-102,
53,
68,
64,
-29,
-36,
-54,
1,
-24,
116,
-47,
-63,
48,
47,
2,
-117,
97,
-98,
-85,
47,
26,
-54,
-55,
92,
-39,
-81,
88,
-101,
-111,
31,
-21,
20,
-125,
20,
-104,
-122,
-48,
59,
-100,
57,
0,
-24,
115,
-78,
-126,
84,
71,
-101,
44,
32,
-94,
-128,
17,
-75,
-4,
-120,
-99,
123,
-119,
-122,
-40,
113,
75,
15,
-108,
-65,
46,
22,
34,
-4,
46,
-122,
97,
104,
38,
-50,
-76,
-79,
-82,
61,
-124,
-13,
-21,
37,
48,
116,
-51,
-58,
84,
22,
113,
75,
-42,
-78
] |
RAYMOND R. ABRAMSON, Judge
A Garland County Circuit Court jury found appellant Andrew Lee Jackson guilty of two counts of rape for having sexual intercourse with two teenaged girls while serving as their youth pastor. He was sentenced to forty years' imprisonment on each count, which the circuit court ordered to be served consecutively. We affirmed those convictions on direct appeal, Jackson v. State , 2018 Ark. App. 222, 547 S.W.3d 753, and the mandate issued on April 24, 2018. Subsequently, Jackson's attorney filed in the circuit court a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37. The circuit court denied the petition on July 20, 2018, for failure to comply with Rule 37.1(c) of the Arkansas Rules of Criminal Procedure. Jackson now brings this appeal.
On June 20, 2018, Jackson, represented by counsel, filed in the circuit court his Rule 37 petition for postconviction relief. The petition was verified by Jackson's counsel, but not by Jackson, and included a request that he be granted leave to amend the petition.
On June 26, 2018, the State moved to dismiss Jackson's petition on the ground that he had not filed a timely verified petition. Jackson responded to the motion, asserting that the verification executed by his attorney was adequate. He also pled, in the alternative, that if the circuit court concluded that his petition was deficient, then he should be allowed leave to amend it to cure the deficiencies. The circuit court concluded that the lack of personal verification of the petition by Jackson was not a technical deficiency, and that because Jackson moved to amend his petition more than sixty days after the mandate had issued, the petition could not be amended. In its July 20, 2018 order, the circuit court specifically found: "The lack of verification from the petitioner, Andrew Jackson, leaves this court in a position where it can not even consider the petition." We agree.
Jackson's petition was not in compliance with the Rule in that it was not verified in accordance with Rule 37.1(c). Rule 37.1(c) requires that the petition be accompanied by the petitioner's affidavit that is sworn before a notary or other officer authorized to administer oaths; in substantially the form noted in that provision; and attesting that the facts stated in the petition are true, correct, and complete.
The form as it appears in the Rule is as follows:
AFFIDAVIT
The petitioner states under oath that (he) (she) has read the foregoing petition for postconviction relief and that the facts stated in the petition are true, correct, and complete to the best of petitioner's knowledge and belief.
_________________________
Petitioner's signature
Subscribed and sworn to before me the undersigned officer this ___ day of __________, 20___.
_________________________
Notary or other officer
Ark. R. Crim. P. 37.1(c).
Rule 37.1(d) requires that the circuit clerk reject an unverified petition and that the circuit court or any appellate court must dismiss a petition that fails to comply with Rule 37.1(c). See Williamson v. State , 2012 Ark. 170, 2012 WL 1353171 (per curiam); see also Stephenson v. State , 2011 Ark. 506, 2011 WL 5995557 (per curiam).
In 2006, Rule 37.1 was amended to more clearly require that a Rule 37.1 petition be verified. Randle v. State , 2016 Ark. 228, 493 S.W.3d 309 (per curiam). Counsel for a petitioner may not sign and verify the petition; the petitioner must sign the petition, and his or her signature must be verified in accordance with the rule. Wooten v. State , 2010 Ark. 67, 370 S.W.3d 475. Jackson's petition was signed only by his attorney. It did not bear Jackson's signature and the verification required by the rule.
Our supreme court has held that the verification requirement for a postconviction-relief petition is of substantive importance to prevent perjury. See Bradley v. State , 2015 Ark. 144, 459 S.W.3d 302 ; Martin v. State , 2012 Ark. 312, 2012 WL 3372998 (per curiam); Williamson , 2012 Ark. 170 ; Tucker v. State , 2011 Ark. 543, 2011 WL 6275086 (per curiam). In short, Jackson failed to abide by the requirements of Rule 37.1(c), and pursuant to Rule 37.1(d)"the circuit court or any appellate court shall dismiss any petition that fails to comply with subsection (c) of this rule." See Bradley , 2015 Ark. 144, at 4, 459 S.W.3d at 305. For that reason, we dismiss Jackson's appeal.
Appeal dismissed.
Hixson, J., agrees.
Virden, J., concurs. | [
48,
-24,
-20,
-4,
40,
-128,
24,
-98,
-45,
-125,
-17,
83,
-87,
66,
12,
59,
-5,
123,
113,
-15,
-36,
-93,
6,
97,
35,
-77,
105,
86,
52,
75,
-20,
-76,
92,
112,
-6,
-15,
100,
-24,
-55,
-38,
-122,
3,
-101,
-28,
-46,
65,
48,
35,
2,
11,
53,
-98,
-29,
47,
29,
-57,
-55,
76,
89,
-65,
74,
17,
-102,
7,
-21,
20,
-95,
-91,
-103,
0,
112,
58,
-100,
57,
0,
-7,
115,
54,
-126,
116,
107,
43,
41,
106,
-30,
0,
89,
-57,
-120,
-128,
15,
46,
-103,
-90,
-101,
9,
75,
13,
-74,
-107,
-20,
20,
14,
126,
101,
-60,
49,
40,
14,
-50,
-10,
-79,
-115,
45,
20,
59,
-29,
108,
-16,
101,
-50,
-9,
84,
87,
57,
27,
-97,
-77
] |
COURTNEY HUDSON GOODSON, Associate Justice
Pending before this court are three pro se motions that appellant Gecoba L. Tilson filed seeking an extension of time in which to file his brief in this appeal of the circuit court's dismissal of Tilson's petition for writ of habeas corpus. Tilson has also filed a pro se motion in which he appears to seek a copy of the record on appeal. Because it is clear from the record that the appeal is without merit, we dismiss the appeal, and the motions are moot.
Tilson filed his petition in the circuit court of the county in which he was incarcerated. In it, he challenged a Faulkner County Circuit Court judgment reflecting his conviction on two counts of aggravated robbery, one count of felony theft of property, and one count of misdemeanor theft of property. Tilson alleged that this judgment was facially invalid because the information charging him had named a victim for one of the aggravated robbery charges, Dawn Cook, who was not present at his trial. Tilson asserted that he was convicted of a charge that was never made, and he also alleged that he did not receive due process or a fair trial because he was not given fair notice that an individual other than the victims who were named in the information would testify concerning the aggravated-robbery charges. He alleged that he did not receive "legal notification" that he would instead face Dana Clark as a witness testifying that he had robbed her.
An appeal from an order that denied a petition for postconviction relief, including an appeal from an order that denied a petition for a writ of habeas corpus, will not be permitted to go forward when it is clear that the appellant could not prevail. Garrison v. Kelley , 2018 Ark. 8, 534 S.W.3d 136. A circuit court's decision on a petition for writ of habeas corpus will be upheld unless it is clearly erroneous. Hobbs v. Gordon , 2014 Ark. 225, 434 S.W.3d 364. A decision is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id.
Under our statute, a petitioner for the writ who does not allege his or her actual innocence and proceed under Act 1780 of 2001 must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that he or she is being illegally detained. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016); Garrison , 2018 Ark. 8, 534 S.W.3d 136. Unless the petitioner can show that the trial court lacked jurisdiction or that the commitment was invalid on its face, there is no basis for a finding that a writ of habeas corpus should issue. Fields v. Hobbs , 2013 Ark. 416, 2013 WL 5775566.
Tilson did not invoke Act 1780, and although he alleged the facial invalidity of the judgment, he did not state facts or provide evidence to establish probable cause to believe that he is being illegally detained. Although claims of a defective information that raise a jurisdictional issue, such as those that raise a claim of an illegal sentence, are cognizable in a habeas proceeding, allegations of a defective information are not generally considered to be jurisdictional and are treated as trial error. Clay v. Kelley , 2017 Ark. 294, 528 S.W.3d 836. Assertions of trial error and due-process claims do not implicate the facial validity of the judgment or the jurisdiction of the trial court. Williams v. Kelley , 2017 Ark. 200, 521 S.W.3d 104.
Tilson attempts to frame at least a portion of his claims concerning the information as an issue of whether he was charged with a crime other than the one for which he was convicted. Yet the only defect in the information that Tilson identifies is that the wrong name was used to identify one of the victims. Language identifying the victim is not necessary for the document to have adequately charged him with the crime and conferred jurisdiction on the trial court. See England v. State , 234 Ark. 421, 352 S.W.2d 582 (1962). An information is not defective if it sufficiently apprises the defendant of the specific crime with which he is charged to the extent necessary to enable him to prepare a defense. Lockhart v. State , 2017 Ark. 13, 508 S.W.3d 869.
Likewise, Tilson's claims of inadequate notice that Dana Clark would be used as a witness to establish the crime are merely assertions of error that could have been raised at trial, on appeal, or in a postconviction proceeding. A habeas corpus proceeding does not afford a prisoner an opportunity to retry his case. Mackey v. Lockhart , 307 Ark. 321, 819 S.W.2d 702 (1991). The writ will not be issued to correct errors or irregularities that occurred at trial, and a writ of habeas corpus will not be issued as a substitute for postconviction relief. Id. The type of claim Tilson raised here concerning surprise or inadequate notice is not one cognizable in a habeas proceeding. See Johnson v. State , 2018 Ark. 42, 538 S.W.3d 819. An issue with the admission of evidence is a challenge that is not cognizable in a habeas proceeding. Philyaw v. Kelley , 2015 Ark. 465, 477 S.W.3d 503. Because Tilson failed to allege a basis for the circuit court to grant the writ, he demonstrated no clear error in the dismissal of his petition, and he cannot prevail on appeal. See Williams , 2017 Ark. 200, 521 S.W.3d 104.
Appeal dismissed; motions moot.
Hart, J., dissents.
Josephine Linker Hart, Justice, dissenting.
Mr. Tilson has not yet perfected his appeal, so this court's jurisdiction is limited to considering his motions for an extension of time to file his brief and his motion to obtain a transcript. Accordingly, while it is permissible for this court to dismiss Mr. Tilson's appeal because he did not timely file his brief, it is most certainly not proper to dismiss his appeal on the merits and declare the motions "moot."
All that is pending before this court are simple motions. There is no just reason for skipping over Mr. Tilson's motions to reach the merits of an appeal that we do not yet have jurisdiction to consider. This court should safeguard all appellants' constitutional rights to due process and access to the courts, not disregard those rights.
I dissent.
We note that there was no confusion at trial concerning whether Dana Clark was the victim. Counsel was clearly not surprised by the use of Dana Clark as a witness. The record reflects that her name appeared on witness lists. There was video of the crime. Counsel made statements reflecting that he was obviously well aware of the witness's identity and prior testimony at a codefendant's trial. In addition, Tilson's defense, which was that he wasn't present, was not dependent on the victim's identity. | [
112,
-24,
-28,
61,
11,
96,
18,
-84,
-61,
-77,
-17,
83,
-95,
-46,
0,
123,
-85,
15,
117,
-7,
-51,
-73,
39,
73,
-14,
-6,
17,
-41,
51,
75,
-12,
-10,
76,
96,
-54,
-43,
70,
-120,
-29,
28,
-114,
3,
-103,
-19,
81,
8,
40,
58,
26,
15,
-11,
-67,
-21,
47,
24,
-62,
105,
47,
-39,
-99,
72,
16,
-37,
5,
-33,
20,
-79,
4,
-101,
-125,
90,
62,
-104,
49,
1,
-6,
54,
-106,
-122,
116,
107,
-102,
40,
110,
99,
3,
28,
-57,
-71,
-88,
47,
126,
-97,
-90,
-46,
33,
75,
45,
-106,
-67,
120,
20,
7,
126,
127,
12,
61,
108,
-121,
-34,
-112,
-79,
-115,
104,
-106,
-5,
-29,
1,
80,
113,
-51,
-30,
92,
87,
59,
-5,
-114,
-42
] |
KENNETH S. HIXSON, Judge
The Clay County Circuit Court adjudicated appellant P.J. a juvenile delinquent on three counts, finding that he committed one count of second-degree sexual assault and two counts of third-degree assault. P.J. was fifteen years old when these acts allegedly occurred, and there were three separate victims. The trial court placed P.J. on one year probation and ordered him to complete forty hours of community service. On appeal, P.J. argues that there was insufficient evidence to support the delinquency adjudications. We affirm.
Pursuant to Ark. Code Ann. § 5-14-125(a)(1) (Supp. 2017), a person commits second-degree sexual assault if the person engages in sexual contact with another person by forcible compulsion. "Sexual contact" means any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female. Ark. Code Ann. § 5-14-101(11) (Supp. 2017). Pursuant to Ark. Code Ann. § 5-13-207(a) (Repl. 2013), a person commits third-degree assault if he purposely creates apprehension of imminent physical injury in another person.
In reviewing the sufficiency of the evidence in a delinquency case, we apply the same standard of review as in criminal cases; that is, we view the evidence in the light most favorable to the State, considering only the proof that tends to support the finding of guilt. T.R. v. State , 2018 Ark. App. 328, 552 S.W.3d 452. We will affirm if the adjudication is supported by substantial evidence, which is evidence that is of sufficient force and character to compel a conclusion one way or the other without resorting to speculation or conjecture. Id. In considering the evidence presented below, we will not weigh the evidence or assess the credibility of witnesses, because those are questions for the factfinder. J.N.A. v. State , 2017 Ark. App. 502, 532 S.W.3d 582.
M.C., a thirteen-year-old girl, was the alleged victim of the second-degree sexual assault. M.C. testified that she met P.J. in the school band and that they started liking each other. M.C. stated that it "went into a whole new category" when P.J. would touch her breasts or her butt. On the night of a basketball game, M.C. was coming back from the band room when she ran into P.J. in a courtyard outside of the gymnasium. According to M.C., P.J. tried to kiss her and she told him "no." Then P.J. shoved her against a brick wall. M.C. tried to push him off her, but P.J. kept shoving himself on her. Then P.J. put his left hand on her shoulder and shoved his right hand down her pants. M.C. testified that P.J. touched the inside of her vagina. M.C. stated that she did not want him to do that and that she kept telling him to stop.
M.F., a fourteen-year-old girl, was the alleged victim of one of the third-degree assaults. M.F. went to school with P.J. and they were friends. M.F. testified that they would sometimes walk together and that P.J. would grab her butt, causing her to jump. When she would jump, P.J. would do it again to see if she would jump again. P.J. would also touch her on her breasts and her vagina, and M.F. would tell him to stop or move his hand, making it very clear that she did not want that contact. On one occasion in a park, M.F. was walking on leaves, and P.J. told her that if she kept doing it he would hit her on her butt and that it would hurt. P.J. hit her on her butt, causing M.F. to scream because it "hurt a lot." M.F. stated that there was a hand-shaped bruise where P.J. had hit her.
A fifteen-year-old girl named A.C. was the alleged victim of the other third-degree assault. A.C. had met P.J. on the school bus and they became friends. A.C. testified that one day they were sitting and talking in a park when P.J. grabbed her hoodie, pulled it away from her chest, and put his hand down her bra. A.C. jerked away, covered her chest, and pushed her hoodie back to her chest. A.C. went home after that. She stated that, because of what happened that day, she did not meet with P.J. again.
P.J.'s friends from school testified as defense witnesses. M.R. testified that he was at the park with P.J. and M.F. and did not observe anything inappropriate. T.B. testified that she had never seen P.J. touch a female but that she had seen M.C. follow P.J. around and touch him inappropriately. K.F. testified that she had never seen P.J. act aggressively.
P.J. testified on his own behalf, and he denied touching any of the alleged victims inappropriately. P.J. testified that M.C. had always been aggravated at him because he did not want to date her. He thought that M.C. "got these other girls to testify against me because she wanted me to go away."
In this appeal, P.J. challenges the sufficiency of the evidence to support each adjudication of delinquency. He first challenges his adjudication for second-degree sexual assault committed against M.C.
The only argument P.J. makes with respect to his delinquency adjudication for second-degree sexual assault is that the State failed to prove that the sexual contact was through forcible compulsion. Arkansas Code Annotated section 5-14-101(2) (Supp. 2017) defines "forcible compulsion" as "physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person." M.C. testified that P.J. shoved her against the wall, put his hands down her pants, and touched the inside of her vagina. While conceding that it was clear that M.C. did not want him to touch her in that manner, P.J. asserts that she never stated that he employed physical force or a threat of death, physical injury, or kidnapping. P.J. claims that there was no evidence of violence and no evidence of whether the sexual contact ceased or continued when M.C. voiced her objection. P.J. argues that because the forcible-compulsion element was missing, there was insufficient evidence that he committed second-degree sexual assault.
We conclude that P.J.'s challenge to the sufficiency of the evidence supporting the trial court's finding that he committed second-degree sexual assault is not preserved for review. This is because, in making his motion for dismissal at the close of the evidence, P.J. did not advise the trial court of the element of the offense that the State failed to prove. With respect to this offense, P.J. argued below that "[a]s for the sexual assault, your honor, I would ask the court to take the credibility of the witness into account, and I believe that, at that point then, your honor, the State has not produced, beyond a reasonable doubt, any evidence of a sexual assault."
Under the Juvenile Code, the Arkansas Rules of Criminal Procedure apply to delinquency proceedings. Ark. Code Ann. § 9-27-325(f) (Supp. 2017). Rule 33.1(b) of the Arkansas Rules of Criminal Procedure provides that in a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of the evidence and shall state the specific grounds therefor. Rule 33.1(c) provides that the failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsection (b) will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the judgment. Rule 33.1(c) further provides that a motion for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. The appellate courts strictly construe Rule 33.1. N.L. v. State , 2017 Ark. App. 227, 519 S.W.3d 360.
In P.J.'s motion for dismissal, he did not challenge the sufficiency of the evidence with respect to any of the elements of second-degree sexual assault, including the forcible-compulsion element that he now attempts to challenge on appeal. Accordingly, P.J. failed to preserve his sufficiency challenge for this offense.
P.J. also challenges the sufficiency of the evidence with respect to the two counts of third-degree assault he was found to have committed against M.F. and A.C. Third-degree assault requires proof that the accused purposely creates apprehension of imminent physical injury in another person. Ark. Code Ann. § 5-13-207(a) (Repl. 2013). P.J. argues on appeal, as he did below, that the State failed to prove that he created an apprehension of imminent physical injury with respect to either M.F. or A.C. Therefore, these challenges are preserved for review. P.J. contends that although M.F. and A.C. clearly testified that they did not want to be touched in the manner each of them was touched by P.J., neither of them stated that she was in fear or apprehension of imminent physical injury. Nor did either alleged victim testify that it was her belief that it was P.J.'s intention to cause such apprehension. Thus, P.J. contends that his two adjudications for third-degree assault should be reversed.
We hold that substantial evidence supports both of P.J.'s adjudications for third-degree assault. M.F. testified that P.J. threatened to hit her on her butt so hard that it would hurt, and then he did, in fact, hit her so hard on her buttocks that it made her scream and left a hand-shaped bruise. The threat communicated by P.J. and the circumstances thereof constituted substantial evidence that P.J. purposely created in M.F. an apprehension of immediate physical harm. A.C. testified that a physical confrontation with P.J. ensued when P.J. grabbed her hoodie, pulled it away from her chest, and reached his hand into her bra. A.C. responded to P.J.'s actions by jerking away, pushing her hoodie back to her chest, and going home. A.C. subsequently avoided contact with P.J. as a result of this event. From A.C.'s testimony, the trial court could conclude without resort to conjecture that P.J. purposely caused in A.C. an apprehension of immediate physical injury. Having concluded that substantial evidence supports both of P.J.'s adjudications for third-degree assault, these adjudications are affirmed.
Affirmed.
Gladwin and Switzer, JJ., agree.
We observe that even had the forcible-compulsion element of this offense been raised below and preserved for review, it would be of no avail. The State sufficiently proved forcible compulsion where M.C. testified that P.J. shoved her against the wall, she tried to push him off her but he kept shoving himself on her, and he put one hand on her shoulder and one hand down her pants while she kept telling him to stop. | [
112,
-23,
-20,
-100,
10,
96,
58,
-76,
-46,
-77,
117,
82,
-81,
-18,
12,
123,
-94,
127,
85,
97,
-107,
-73,
19,
65,
-94,
-5,
-80,
71,
-77,
79,
-28,
-12,
24,
112,
-54,
-35,
2,
72,
-27,
94,
-126,
11,
-101,
-56,
25,
67,
52,
63,
82,
15,
49,
22,
-29,
107,
28,
-61,
105,
110,
83,
-67,
74,
19,
-40,
21,
-23,
20,
-77,
38,
-97,
1,
-8,
58,
-104,
57,
0,
104,
-13,
-94,
-122,
-12,
109,
-87,
-119,
96,
98,
3,
-119,
-58,
61,
-56,
47,
119,
-71,
-90,
-103,
105,
67,
45,
-73,
-98,
102,
117,
-120,
122,
-13,
79,
23,
108,
-95,
-49,
-80,
-79,
77,
32,
92,
-78,
-29,
61,
20,
37,
-35,
-58,
84,
84,
50,
-37,
-34,
-76
] |
In July 2015, the circuit court entered a divorce decree wherein the parties agreed that they would share joint custody of their child, seventeen-month-old L.P., and that Jill would receive reasonable child support. The decree provided that "each party shall have one week on and one week off of possession of the minor child." In October 2016, Phillip moved to modify the custody arrangement, alleging that a material change of circumstances had occurred and requesting that joint custody be modified so that he would be the primary custodian with Jill exercising visitation. In March 2017, the court entered an agreed modification order in which the parties agreed that both were enjoined from the following conduct:
a. disturbing the peace of the child or of the other party.
b. hiding or secreting the child from the other party.
c. making disparaging remarks regarding the other party or the other party's family in the presence or within the hearing of the child or on any form of social media.
d. discussing any litigation concerning the child in the presence or within the hearing of the child or on any form of social media.
e. using illegal drugs, drugs for which the parties do not have a valid prescription within the twelve (12) hours before or during the periods of possession of or access to the child.
In March 2018, Phillip again moved to modify the custody arrangement, contending that a material change of circumstances had occurred since entry of the modification order. He alleged that Jill had "consistently and systematically failed to act in the best interest of the minor child. Moreover, she [has] engaged in conduct that is harmful to the minor child." Phillip again asked that joint custody be modified so that he would be the primary custodian with Jill exercising visitation. He also alleged that Jill was using or had used illicit drugs recently during periods in which L.P. was in her care, and he asked that the court order Jill to submit to drug testing. Jill answered and denied Phillip's allegations; she also accused Phillip of harassing her by filing multiple motions to modify and asked for full attorney's fees.
On 2 May 2018, the circuit court ordered that Jill and her boyfriend, Sean Lancaster, submit to drug testing. On June 25, the court convened a final hearing on Phillip's motion to modify. Jill testified that since the last modification hearing in March 2017, she had discontinued her pursuit of an undergraduate degree and had moved out of her parents' house. She said she now resides in a rental property and shares the property with two adults and their sixteen-year-old son. She is currently employed as a long-term substitute teacher for the Texarkana, Arkansas, Independent School District. She testified that she and Sean Lancaster were no longer a couple. She denied that she would ever drink excessively or use illegal drugs around L.P. She agreed that L.P. was enrolled at Trinity Christian School in the Pre-K program (K-3) and stated that early dropoff begins at 7:30 a.m. and school ends at 3:15 p.m. She said that according to the school handbook, every toddler needs to be in his or her classroom by 9:00 a.m. She acknowledged that L.P. had missed several days of school while in her care (reasons unknown). She also acknowledged that she had exchanged text messages with Niraj Krishna in December 2017 and January 2018 and that some of those texts contained sexually explicit language and photographs. She also agreed that some texts contained derogatory comments about her students and references to drinking and intoxication. She admitted that one text referenced cocaine being in her system, but she denied that she had consumed any illegal drugs since January 2017. She asserted that she had not had any overnight guests with L.P. present. She did agree that she had invited Niraj to her house and asked him to bring beer after L.P. was asleep.
On cross-examination, Jill confirmed that L.P. had been late to school (9:15 a.m.) once and that she (Jill) had been late (by a few minutes) picking up L.P. from aftercare once. Jill also said that she and Phillip had briefly reconciled after the last court order was entered but that he had now remarried after dating his current wife for four months. Jill agreed that she had difficulties with Phillip's new wife, Lacy. She also admitted that she had started teaching fulltime in October 2017 but had been terminated for alleged drug use. She continued working as a substitute teacher, however, and is employed at Pecan Point Brewery for the summer. She confirmed that she had taken the court-ordered drug test and that the results were negative.
Allison Munn, L.P.'s K-3 teacher at Trinity, testified via deposition that she had interacted with both of L.P.'s parents and had seen a lack of consistency in Jill's parenting. Munn also said that Jill had not always paid attention during parent/teacher conferences and that she had sometimes failed to send the requisite school supplies with L.P. Munn observed a difference in L.P.'s behavior during the weeks she is with Jill compared to the weeks she is with Phillip; according to Munn, "Mom's week, [L.P.] is always exhausted, tired, her behavior is completely different, she is very defiant[.]" But during Phillip's week, L.P. is "not tired at nap time, she kind of flips all around because she's not exhausted." Munn agreed that based on her observations over the past year, she had developed concern for L.P.'s educational development and her safety and well-being while in her mother's care.
Elizabeth Foster, who teaches the summer program at Trinity, testified that the school prefers that students be there by 8:15 a.m. Foster said that the week of June 11, when L.P. was in Jill's care, L.P. was dropped off on Monday at 8:00 a.m., picked up at 5:15 p.m. from extended care, and did not attend the rest of the week. During the week that L.P. was in Phillip's care, L.P. was signed in between 7:45 and 8:00 a.m. each day and picked up between 3:00 and 3:15 p.m. Foster also testified there was one day that Jill did not provide an appropriate lunch for L.P. because it did not contain a meat product, but that during Phillip's weeks, L.P. had a sufficient lunch. On cross-examination, Foster agreed that L.P. is at an appropriate education level and is a good student.
Niraj Krishna testified that he had used cocaine with Jill once in December 2017 and again in January 2018. He also said that there had been times that he had visited Jill at her home while L.P. was asleep. He confirmed that he had visited Jill's house in the middle of the night when L.P. was present. He also described one instance in which he met Jill for lunch and she consumed more than one alcoholic beverage then left to pick up L.P.
Phillip testified that he is a physician and that he lives with his wife and their three children (his wife's two children from a previous marriage and L.P.). He said that he believed there had been a material change of circumstances since the entry of the last order; he explained that after Jill had moved out of her mother's house, Jill began exhibiting different behaviors that he believed negatively impacted L.P. He took no comfort in the fact that Jill's drug test was negative because "[i]t was done almost six months after she was doing this" and "[s]he's always had problems." He also said that he saw behavioral changes in L.P. after being in her mother's care; specifically, L.P. picks up sticks and imitates smoking, is tired, and has trouble readjusting her sleep schedule. Phillip also voiced concern over two injuries that L.P. has suffered in the past year: (1) a burn on her hand and (2) a vaginal tear that was discovered by a worker at Trinity. After the discovery of the second injury, L.P. was taken to a medical provider, and according to Phillip, when Jill arrived at the doctor's office, "she appeared to be under the influence of something" and "smelled of marijuana." Phillip testified that he was "not really" able to communicate with Jill in an "adult to an adult type manner." He expressed concern with the individuals with whom Jill associates, the roommates in her house, and Jill's general state of mind and "erratic behavior." Phillip said that he is the more appropriate parent to take care of L.P.'s essential needs and asked that he be designated the primary custodial parent with Jill exercising standard visitation. He stated that if he was not L.P.'s primary custodial parent, he was worried about future conflict because "[w]e can't agree on anything now." On cross-examination, Phillip admitted that to his knowledge, Jill had not received any DWIs or been arrested for using any illegal substance since the last court order. Regardless, he said that he believes Jill has a problem with drugs and is actively using drugs.
Sharon Pace, Phillip's mother, testified that she lives near Phillip and his family and that during Phillip's custody weeks, she spends Tuesday nights with L.P. Sharon recalled an incident in December 2017 in which Jill came to Sharon's house to pick up L.P. and Sharon thought she smelled alcohol on Jill. Sharon called the police, but when they arrived fifteen minutes later, Jill had left. Sharon expressed concern for L.P.'s safety and well-being while in Jill's custody.
After Phillip rested, Jill asked that the motion be dismissed, asserting that no material change of circumstances had been proved. The court found that "since the entry of the last order, that there has been a sufficient change of circumstances on both sides for the court to consider the best interest of the child at this point in time under the present custody arrangement, so I'll let you go forward on that."
Linda Lowe, Jill's coworker, testified that she sees Jill every day and that she has never had a reason to question Jill's sobriety. Lindsay Franklin, another coworker, testified that she had known Jill for twenty-five years, that Jill is one of the best mothers she knew, and that she never had any reason to suspect that Jill was under the influence of drugs.
Marsha Hardin, Jill's mother, testified that she had been with L.P. when she injured her hand. Hardin explained that she and L.P. had been cooking eggs; that L.P. had been standing on a chair; and that the chair wobbled, causing L.P. to instinctively reach out and catch herself and in so doing touch the burner on the stove. Hardin said she ran cold water over the burn, applied aloe gel, and bandaged L.P.'s hand. L.P. had a school performance that night, so Hardin gave L.P. a mitten to wear over the bandage to protect it.
Jill again took the stand and testified that she had not been notified on the day that L.P.'s lunch was deemed inadequate and that she had made a sandwich for L.P.'s lunch the night before but had forgotten it. She also said she regretted the texts between her and Krishna but maintained that she had not had any overnight guests when L.P. was present. She testified that she and Phillip do not have any communication with each other and that she primarily communicates with Lacy. Upon questioning by the court, Jill explained that they exchange custody of L.P. at each other's homes.
On 17 July 2018, the court entered a written order containing the following findings:
The Court finds that it was established by a preponderance of the evidence that Defendant used cocaine on one occasion since the last Order. The Court does not find that such evidence warrants a change in the custody order previously entered in this cause.
The Court further finds the Defendant has met the child's educational needs and most of the other evidence presented was personal in nature and would not have been known by the child or impacted the mother-daughter relationship.
Both parties are required to use due diligence to protect the safety and well being of the child. There was no evidence presented that Defendant's current renters have harmed or would harm the child. ... The Court finds that there ha[ve] been material changes of circumstances in the lives of both parties since the last order. However, it is not in the best interests of the child to modify the joint custody agreed to by the parties in their Decree of Divorce dated on July 16, 2015.
The court denied Jill's request for attorney's fees. Phillip has appealed the denial of modification of custody, and Jill has cross-appealed the denial of attorney's fees.
I. Best Interest
Arkansas law is well settled that the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. Anderson v. Thomas , 2013 Ark. App. 653, 2013 WL 5964473. Generally, courts impose more stringent standards for modifications in custody than they do for initial determinations of custody. Id. The reason for requiring more stringent standards for modifications than for initial custody determinations is to promote stability and continuity in the life of the child and to discourage repeated litigation of the same issues. Id.
The party seeking modification of the custody order has the burden of showing a material change in circumstances. Anderson, supra. To change custody, the circuit court must first determine that a material change in circumstances has occurred since the last order of custody; if that threshold requirement is met, it must then determine who should have custody with the sole consideration being the best interest of the children. Id. In reviewing child-custody cases, we consider the evidence de novo but will not reverse a circuit court's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Preston v. Preston , 2014 Ark. App. 58, 2014 WL 245783. Because the question of whether the circuit court's findings are clearly erroneous turns largely on the credibility of witnesses, we give special deference to the superior position of the circuit court to evaluate the witnesses, their testimony, and the child's best interest. Ford v. Ford , 347 Ark. 485, 65 S.W.3d 432 (2002). There are no cases in which the superior position, ability, and opportunity of the circuit court to observe the parties carry as great a weight as those involving minor children. See Vo v. Vo , 78 Ark. App. 134, 79 S.W.3d 388 (2002).
Phillip begins by citing the general law on joint custody. He notes that the mutual ability of the parties to cooperate in reaching shared decisions in matters affecting the child's welfare is a crucial factor bearing on the propriety of joint custody, and when the parties have fallen into such discord that they are unable to cooperate in sharing the physical care of the children, this constitutes a material change in circumstances affecting the children's best interest. See Doss v. Miller , 2010 Ark. App. 95, 377 S.W.3d 348. It is reversible error, he says, to order continuation of a joint-custody arrangement when there is evidence that the parents can no longer cooperate in reaching decisions in matters affecting their children. See Montez v. Montez , 2017 Ark. App. 220, 518 S.W.3d 751. That is the basic law.
Phillip asserts that such a situation exists in this case: he and Jill "have reached a state where they simply cannot agree on the correct actions to take parenting [L.P.]," and Jill's actions "indicate poor judgment and wholly undermine Phillip's confidence that she will act in the best interest of L.P." Phillip likens this case to Dansby v. Dansby , 87 Ark. App. 156, 189 S.W.3d 473 (2004), in which this court affirmed a circuit court's modification of joint custody. This court held:
Here, the change in circumstances was that Robin's bad acts were happening in the presence of the child, where they were presumably hidden before the divorce. To her detriment, the judge believed the testimony that Robin had men in the house overnight at least once while the children were present; that marijuana was found in Robin's house by Lynzi; that Robin spoke disparagingly of Lathaire in the children's presence; that Robin was drunk and smoked in front of the asthmatic child; and that while the parties were able to work out the schedule most of the time to give each other one-half of Krysten's time, they were in disagreement now. The judge apparently was persuaded by Lathaire's explanations for not paying child support when he was frustrated, and for his arrest in the children's presence. We must defer to the credibility calls made by the trial judge. Moreover, joint custody should only stand where the parties are very agreeable. Given the standard of review, we affirm the change from joint custody of Krysten to Lathaire having full custody.
Id. at 166, 189 S.W.3d at 480 (internal citation omitted) (emphasis added). Phillip contends that this court should award him sole custody of L.P.
In response, Jill notes that Phillip's motion did not allege that she had violated any of the conduct that was enjoined in the 2017 agreed modification order; instead, he made a general allegation that Jill had acted in ways harmful to L.P. and not in L.P.'s best interest. But there was no evidence that Jill's alleged improper conduct occurred in L.P.'s presence or negatively affected her. Nor was there evidence that Phillip's other concerns- such as L.P.'s check-in time at preschool, her isolated injuries, and Jill's current living arrangements-had affected L.P. negatively or been caused by Jill's conduct. For her part, Jill says that there was no testimony that the parties' relationship had deteriorated to such a degree that modification of the custody arrangement was necessary. The weekly exchanges of custody have occurred without incident, no one testified that they did not agree on L.P.'s current education, and "[w]hile there may well be a lack of trust among [Phillip] and [Jill], it has not proven to be an issue that prevents the parties from amicably following the terms of the Agreed Modification Order on a regular basis." Jill concludes that the circuit court acted within its discretion in evaluating the credibility of the witnesses, seeing beyond the "petty disputes" that are commonly seen in custody cases, and deciding that four-year-old L.P. should not be denied equal time with both parents.
There are some concerning aspects to this case, but on the whole we agree that the evidence did not demonstrate that the parties have reached a state of discord and animosity to a degree and frequency that they cannot communicate and agree on the proper care for their child. They have arranged a weekly pick-up and drop-off schedule that works for both parties, neither party asserts that L.P.'s school situation should be changed, and L.P. is a happy and healthy young girl. In addition, many of the instances cited by Phillip as evidence of bad parenting by Jill consist of what appear in the record to be one-time occurrences: late to school once, picked up late from aftercare once, and one school lunch that was deemed inappropriate-a protein was missing one day. And while one teacher expressed concern for L.P. while in Jill's care, another teacher did not and noted that L.P. is at an appropriate education level for her age and is a good student. The circuit court, not this court, observed the witnesses and parties and decided how to weigh and credit the testimony. Under our standard of review, we are duty bound to defer to the circuit court's better vantage point for discerning what custody arrangement between these parents is in the child's best interest. Sharp v. Keeler , 103 Ark. App. 233, 288 S.W.3d 256 (2008). The case law cited by Phillip, Dansby v. Dansby , confirms that this court must defer to the circuit court's credibility determinations, especially in this case, which is a quintessential "judgment call." Consequently, we affirm.
II. Attorney's Fees
A circuit court has inherent power to award attorney's fees in domestic-relations proceedings, and whether to do so and the amount thereof are matters within the circuit court's discretion. James v. Walchli , 2017 Ark. App. 645, 535 S.W.3d 679. Given the circuit court's intimate acquaintance with the record and the quality of services rendered, we usually recognize the superior perspective of the circuit court in determining the issue of attorney's fees. Id. A circuit court's decision related to attorney's fees will not be disturbed on appeal absent an abuse of discretion. Id.
Jill argues that there have been four motions filed and three hearings held since the parties' divorce, and while Phillip is a physician with more financial resources, she has a limited income and relies heavily on the child-support payments she receives from Phillip. She argues that she should not be penalized for her lack of resources, nor should L.P. "be penalized from child support funds having to be diverted to fight her Father's multiple motions, none of which have resulted in a change of custody." Phillip counters that Jill's actions have justified his concerns for L.P.'s well-being and notes that even the circuit court found a material change of circumstances. Therefore, he argues, the circuit court did not abuse its discretion in denying attorney's fees.
The circuit court denied attorney's fees for both parties, and we see no abuse of discretion in that decision.
Affirmed on direct appeal; affirmed on cross-appeal.
Switzer, Whiteaker, Vaught, and Hixson, JJ., agree.
Abramson, Virden, Gladwin, and Brown, JJ., dissent.
According to the Trinity handbook, "Toddler and Preschool (K2 and K3) class begins at 8:15 a.m. and students should be signed in no later than 9:00 a.m."
Aftercare service concludes at 5:30 p.m.; on that day, Jill was pulling into the parking lot when the school called her at 5:30 p.m.
An investigation into L.P.'s injury concluded that she had a urinary-tract infection and a straddle injury, which can be caused from falling off a bike or straining while using the bathroom. The investigation concluded that the injury was not caused by child abuse or neglect. | [
-80,
104,
-44,
108,
43,
97,
10,
-80,
99,
-45,
103,
-47,
-85,
-10,
16,
41,
-102,
111,
80,
105,
-45,
-77,
75,
-64,
-14,
-45,
-80,
91,
-73,
79,
111,
31,
92,
56,
-126,
-11,
66,
-47,
-15,
84,
-126,
41,
-85,
-32,
82,
-62,
36,
121,
26,
15,
49,
-97,
-77,
44,
25,
95,
72,
72,
127,
-4,
-40,
-4,
-97,
21,
46,
18,
-77,
116,
60,
-90,
-56,
75,
-104,
56,
0,
-23,
115,
-74,
-110,
116,
69,
-101,
-127,
48,
98,
-128,
77,
-25,
-16,
-116,
-18,
46,
-120,
-26,
91,
121,
8,
14,
-90,
-74,
116,
16,
46,
122,
107,
-115,
21,
-24,
36,
-53,
20,
-101,
13,
16,
-36,
51,
-29,
-91,
33,
85,
-53,
-92,
84,
68,
51,
-45,
-1,
-41
] |
RAYMOND R. ABRAMSON, Judge
This lawsuit arises out of an online auction to sell certain real property located at 901 South Main Street in Mountain Home, Arkansas. The overarching issue presented in this appeal is whether Freeman Holdings of Arkansas, LLC, and Francis B. Freeman, Jr., (Freeman) formed an enforceable contract with FNBC Bancorp, Inc. (FNBC), to purchase the property. The circuit court found that an enforceable contract existed between the parties and ordered specific performance. We affirm.
I. Background
FNBC sought to sell certain real property located at 901 South Main Street in Mountain Home, Arkansas. FNBC hired Wooley Auctioneers (Wooley) to administer an online auction to sell the property and gave Wooley the exclusive right to offer the property for sale. In the course of Wooley's representation of FNBC, Wooley drafted the documents for the online auction, and FNBC accepted those documents as its own.
Freeman was interested in purchasing the property. Freeman authorized its agent, Raymond Mikesch, to conduct research on the auction and bid on the property. It is undisputed that Mikesch had authority to act on Freeman's behalf.
Before the auction, Mikesch perused Wooley's website to familiarize himself with it. Then, on April 27, 2016, the date of the auction, Mikesch logged on to Wooley's website and registered to bid. Mikesch was required to accept the terms and conditions of the auction when he registered to bid on the property. Thereafter, he made thirteen separate bids to purchase the property. At the conclusion of the auction, he was informed that he had placed the highest bid-$52,000.
The terms and conditions agreed to by Mikesch would prove to be integral to the future litigation. They provide in part as follows:
TERMS TO PURCHASE REAL ESTATE: Successful Purchasers Will Be Required To Tender A Cashier's Check In The Amount Equal To 20% Of Contract Purchase Price To The Respective Title Company(s) Within 48 Hours After Acceptance By The Bank, Along With A Signed Copy Of The Offer & Acceptance Agreement That Will Be Emailed To You Immediately After Acceptance By The Bank. The Balance Will Be Due In Approx. 30 Day [sic] At Closing. The Purchaser Will Pay The Buyers Side Of The Closing Costs And All Taxes Will Be Prorated To The Date Of Closing.
The terms and conditions also specify that a 10 percent buyer's premium will be added to the bid to determine the final sales price and refer to a "sample" offer-and-acceptance agreement, which is not included in the record and may not have existed at the time Mikesch placed bids on behalf of Freeman. Finally, the terms and conditions indicate that "your bid is a contract to buy" and that all property is sold "as is."
After Mikesch learned that Freeman had placed the highest bid for the property, he called Wooley and was informed that FNBC had to accept its bid. Mikesch admitted that he was later notified that FNBC had accepted the bid. Thereafter, Wooley allegedly sent Mikesch an email that attached the auction contracts, including the offer-and-acceptance agreement. Importantly, the offer-and-acceptance agreement merely reiterated the terms and conditions to which Freeman had agreed and incorporated the exact monetary amount Freeman offered to pay. Specifically, the offer-and-acceptance agreement specified the bid price offered by Freeman-$52,000. The document then calculated the 10 percent buyer's premium-$5200; the total purchase price-$57,200; the down payment-$11,440; and the balance due at closing-$45,760. Mikesch contends that he did not receive Wooley's email. Two months passed, and Freeman never paid any of the money due according to the terms and conditions of the auction, nor did it sign the offer-and-acceptance agreement. Freeman never closed on the sale of the property.
Freeman's refusal to close on the property was based on perceived problems with it. After the auction, Freeman inspected the property, which led it to conclude that the building's pipes had burst. Freeman declined to go forward with its purchase because it believed that the property had not been adequately protected and would require considerable expense to repair the pipes.
II. The Litigation
In August 2016, FNBC sued Freeman for breach of contract and sought specific performance of the contract. Freeman mounted several defenses to the lawsuit, including that the alleged contract was unenforceable because it did not satisfy the statute of frauds.
The circuit court held a bench trial in October 2017. At trial, the terms and conditions of the auction were introduced into evidence. Mikesch admitted that he saw, reviewed, and accepted the terms and conditions for the auction, that he placed bids on the property, and that he knew FNBC had accepted Freeman's highest bid to purchase the property.
After the trial, the circuit court issued a judgment in favor of FNBC and ordered specific performance of the contract. In the judgment, the circuit court found that "a contract was formed ... with adequate consideration and mutual obligation." It further found that "the statute of frauds [wa]s unavailable as a defense, because the material aspects of the contract were admitted under oath by representatives of Freeman Holdings." Freeman timely appealed to our court.
III. Issues on Appeal
On appeal, Freeman contends that the circuit court's order requiring specific performance must be reversed and argues that (1) the circuit court improperly applied the judicial-admissions doctrine, (2) the alleged contract did not satisfy the statute of frauds, (3) there was no contract, and (4) it did not admit all material terms of the alleged contract.
Based on our review, we hold that the parties entered into a contract that satisfied the statute of frauds; consequently, we affirm the circuit court's judgment without reaching the merits of Freeman's remaining points on appeal.
IV. Whether There Is A Contract
We begin our analysis of this appeal with the most fundamental inquiry in contract law: whether Freeman and FNBC had a contract. It was FNBC's burden to prove the existence of a contract. Grisanti v. Zanone , 2010 Ark. App. 545, 336 S.W.3d 886.
The essential elements of a contract are (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligation. Bank of the Ozarks, Inc. v. Walker , 2016 Ark. 116, 487 S.W.3d 808. Our review of whether the circuit court erred by finding there was a contract is limited to whether the finding was clearly erroneous. Robinson v. Villines , 2009 Ark. 632, 362 S.W.3d 870.
Certain essential principles apply to the formation of a contract. Very simply stated, a contract requires an offer and an acceptance. Gibson v. Boyd , 206 Ark. 48, 50, 172 S.W.2d 928, 929 (1943). An auction is an invitation to offer. See Mercer v. N. Little Rock Special Sch. Dist. , 177 Ark. 127, 132, 6 S.W.2d 16, 18 (1928). And in an auction, a bid constitutes the making of an offer. Id. Offers may be accepted either by spoken words or by conduct. Van Dyke v. Glover , 326 Ark. 736, 934 S.W.2d 204 (1996).
Freeman clearly made an offer to purchase the property when it placed its bids during the auction. FNBC was free to accept or reject that offer, which was evident from the telephone call between Wooley and Mikesch wherein Mikesch learned that Freeman was the highest bidder but that FNBC had to accept Freeman's offer. Ultimately, FNBC accepted Freeman's offer, which was conveyed to Mikesch through a subsequent telephone call.
Based on these facts, we are charged with determining whether FNBC's acceptance created a binding contract for the purchase and sale of the property. Freeman contends that it did not. The lynchpin of Freeman's argument for reversal is that there was no mutual agreement because the terms and conditions it agreed to did not include the offer-and-acceptance agreement, which was to be emailed after FNBC's acceptance of its bid. Essentially, Freeman argues there was no meeting of the minds.
It is well settled that in order to make a contract there must be a meeting of the minds as to all terms, using objective indicators. DaimlerChrysler Corp. v. Smelser , 375 Ark. 216, 289 S.W.3d 466 (2008). Both parties must manifest assent to the particular terms of the contract; thus, the terms of the contract must be effectively communicated. Asset Acceptance, LLC v. Newby , 2014 Ark. 280, 437 S.W.3d 119. This includes a requirement that the contract cannot be so vague as to be unenforceable. DaimlerChrysler Corp., supra. Terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy. Id.
We are reminded that whether there was a meeting of the minds is an issue of fact, and we will not reverse a circuit court's finding of fact unless it is clearly erroneous. Id. In this instance, we cannot say that it is. The unsigned offer-and-acceptance agreement that Freeman contends negated the existence of the contract merely supplied the terms and conditions to which Freeman agreed and included the exact monetary amounts Freeman offered to pay. It did not contain new terms nor did it vary any terms previously agreed to by the parties. There is evidence to support a finding that both Freeman and FNBC manifested assent to the terms of the contract. It was not erroneous for the circuit court to find that there was a meeting of the minds on all terms. Accordingly, we hold that the circuit court did not err by finding that Freeman and FNBC had entered into a contract.
V. Whether the Contract Satisfied the Statute of Frauds
Having determined that Freeman and FNBC did, in fact, enter into a contract, we now direct our analysis to whether that contract is enforceable. Generally, the statute of frauds requires that contracts for the sale of land be in writing to be enforceable. Ark. Code Ann. § 4-59-101(a)(4) (Supp 2017).
We begin by acknowledging that the circuit court did not specifically rule on whether the contract satisfied the statute of frauds. The pertinent portion of the judgment provides that "a contract was formed," and that "the statute of frauds is unavailable as a defense because the material aspects of the contract were admitted under oath." Despite the absence of a ruling on this particular question, our court "may affirm a circuit court where it has reached the right decision, albeit for the wrong reason, so long as the issue was raised, and a record was developed below." Ark. State Bd. of Election Comm'rs v. Pulaski Cty. Election Comm'n , 2014 Ark. 236, at 12, 437 S.W.3d 80, 87.
Whether this contract satisfied the statute of frauds was clearly litigated before the circuit court. With this in mind, we next determine whether the statute of frauds was satisfied because this inquiry is the next logical step in the analysis of the enforceability of this contract, and its determination disposes of the litigation.
To comply with the statute of frauds, a writing must contain in itself, or by reference to another writing, all essential terms. Van Dyke , 326 Ark. 736, 934 S.W.2d 204. Specifically, a contract for the sale of real property must include (1) the terms and conditions of the sale, (2) the price to be paid, (3) the time for payment, and (4) the land to be sold. Id. at 743, 934 S.W.2d at 208.
Here, the written contract is composed of two documents: the terms and conditions to which Freeman agreed when it bid on the property and its electronic bids. Notwithstanding these terms, Freeman argues that the contract fails to satisfy the statute of frauds because all essential terms of the contract are not reduced to writing. On appeal, it advances two primary arguments in support of reversal, asserting that the terms and conditions did not identify FNBC as the seller and that the terms and conditions did not include the offer-and-acceptance agreement.
First, we address whether the offer-and-acceptance agreement contained essential terms that were absent from the written contract. On this point, we reiterate that the offer-and-acceptance agreement merely supplied the exact monetary amount that Freeman offered to pay FNBC for the property and restated the written terms and conditions. Because the offer-and-acceptance agreement did not introduce or vary any essential terms, its absence from the written contract does not result in a failure to satisfy the statute of frauds.
Next, we analyze whether FNBC's status as the seller is an essential term that was absent from the contract. We acknowledge that the terms and conditions provide that "the bank" must accept any offer. Although FNBC was not specifically identified in the terms and conditions, the property description on Wooley's website identifies FNBC as the seller and provided that keys to preview the property were available at FNBC. Additionally, we recognize that Wooley was FNBC's agent for this auction. The contract between Wooley and FNBC provided that Wooley had the exclusive right to offer the property for sale, and Wooley was identified on both the terms and conditions and on Freeman's bids. Thus, we hold that this contract does not fail to satisfy the statute of frauds based on the failure to identify FNBC as the seller.
In summation, we hold that this contract satisfies the statute of frauds and is therefore enforceable. The written terms and conditions of this auction were sufficient to put Freeman on notice as to how the auction would be conducted and to the obligations imposed on it by placing a bid.
VI. Conclusion
Because we hold that Freeman and FNBC entered into a contract for the sale of land that satisfied the statute of frauds, we affirm the circuit court's judgment without the necessity of reaching the merits of Freeman's remaining arguments on appeal.
Affirmed.
Virden and Hixson, JJ., agree.
A finding that a contract exists is not a finding that the statute of frauds is satisfied. The statute of frauds provides that in order to be enforceable, certain contracts must be in writing. Ark. Code Ann. § 4-59-101(a)(4).
Because the terms and conditions and Freeman's bids were executed contemporaneously by the same party in the course of the same transaction, the instruments are considered one contract for the purposes of interpretation. See Byme, Inc. v. Ivy , 367 Ark. 451, 241 S.W.3d 229 (2006). | [
113,
124,
-7,
-52,
24,
96,
56,
-104,
114,
-89,
38,
91,
-5,
-62,
21,
105,
-89,
41,
97,
105,
-60,
-77,
71,
-62,
-46,
-109,
-109,
-49,
59,
-49,
-76,
-122,
-52,
0,
-54,
85,
-26,
-62,
-51,
-40,
10,
2,
27,
84,
-59,
99,
56,
-65,
0,
74,
33,
-122,
-13,
37,
29,
-53,
77,
62,
-5,
45,
81,
-103,
-21,
-115,
-1,
23,
-127,
52,
-102,
23,
-8,
72,
-112,
112,
8,
-24,
115,
54,
-42,
36,
75,
47,
44,
98,
99,
2,
-127,
-19,
-12,
-120,
37,
-37,
-121,
-89,
-95,
25,
2,
43,
-65,
28,
-40,
0,
17,
-6,
-27,
12,
-99,
108,
31,
-82,
-42,
-93,
-81,
118,
-100,
26,
-1,
5,
112,
112,
-49,
-90,
81,
6,
62,
11,
-114,
-65
] |
....
2. a "hit-and-run" land motor vehicle whose owner or driver remains unknown and which strikes:
a. the insured ; or
b. the vehicle the insured is occupying
and is the proximate cause of bodily injury to the insured.
(Emphasis in policy.)
Cross argues on appeal that she was entitled to UM coverage because she presented a question of fact on the issue of whether she was legally entitled to collect from the owner or driver of an uninsured vehicle. This language is consistent with the language of section 23-89-403, which states that its purpose is to protect those who are legally entitled to recover damages from owners or operators of uninsured motor vehicles. Ark. Code Ann. § 23-89-403(a)(1) (Repl. 2014). Our supreme court has held that the policy requirement that an insured must be "legally entitled to recover from an uninsured motorist is intended only to require a showing of fault on the part of the uninsured motorist." Elam v. Hartford Fire Ins. Co. , 344 Ark. 555, 570-71, 42 S.W.3d 443, 463 (2001) (citing Hettel v. Rye , 251 Ark. 868, 870, 475 S.W.2d 536, 538 (1972) ).
Arkansas case law has further interpreted the phrase "legally entitled to recover from an uninsured motorist" as requiring the plaintiff to prove that the other vehicle is uninsured. State Farm Mut. Auto. Ins. Co. v. Henderson , 356 Ark. 335, 341, 150 S.W.3d 276, 279 (2004) ; Home Ins. Co. v. Harwell , 263 Ark. 884, 885, 568 S.W.2d 17, 18 (1978) ; Ward v. Consol. Underwriters , 259 Ark. 696, 698, 535 S.W.2d 830, 832 (1976) ; Sw. Underwriters Ins. Co. v. Miller , 254 Ark. 387, 391-92, 493 S.W.2d 432, 434 (1973). This interpretation is consistent with the language of the policy, which puts the focus on whether the motor vehicle is uninsured. Therefore, to survive summary judgment, Cross had to present a question of fact showing that AHTD dump trucks were at fault and that AHTD dump trucks were uninsured.
We hold that Cross met her burden of presenting evidence to create a question of fact and survive summary judgment on this issue. First, State Farm admitted in its responses to requests for admission that AHTD was not covered by liability insurance at the time of the collision in this case. Further, AHTD's attorney stated in his affidavit that there was no insurance on the AHTD trucks that were used to transport and place materials on Highway 108. Second, Cross presented evidence of AHTD's fault. Her deposition testimony, along with that of Ricky Carter and Raymond Smith, was sufficient evidence to present a question of fact on the issue of AHTD's fault. Furthermore, the circuit court, in its order, expressly found that there were material questions of fact on the issue of negligence of AHTD's dump truck and/or drivers. Therefore, we hold that Cross presented sufficient evidence to create a question of fact on the issue of her entitlement to UM coverage.
We acknowledge the supreme court's holding in Gailey v. Allstate Insurance Co. , 362 Ark. 568, 210 S.W.3d 40 (2005), which appears to be contrary to our holding. In Gailey , the appellant was struck by a vehicle driven by Bianca Sills and owned by Jerry Woods. The appellant made a claim with her UM carrier, the appellee. After a trial, the jury found that Sills and the vehicle she was driving were uninsured. Gailey , 362 Ark. at 572, 210 S.W.3d at 43. The UM carrier cross-appealed, contending that while the insured presented sufficient evidence to prove that Sills was uninsured, the insured failed to present sufficient evidence that the vehicle was uninsured. Id. at 577, 210 S.W.3d at 45-46. Citing Home Insurance Co. v. Harwell , the supreme court stated that "[i]n order to recover uninsured-motorist benefits under Arkansas law, a plaintiff must prove that both the driver of the vehicle and the vehicle itself were uninsured." Id. at 577, 210 S.W.3d at 46. The court went on to find that substantial evidence supported the jury's finding that the vehicle was uninsured. Id. at 578-79, 210 S.W.3d at 47-48.
We distinguish Gailey for two reasons. First, the Gailey court did not recite the UM policy language at issue in that case. Therefore, we do not know what it required.
Referring back to the policy language in the instant case, it expressly provides that an insured is legally entitled to collect from the owner or operator of the uninsured motor vehicle, which is a clear basis on which to distinguish Gailey .
Second, Gailey cites Home Insurance Co. v. Harwell for the proposition that in order to recover uninsured-motorist benefits, the insured must prove that both the driver of the vehicle and the vehicle itself were uninsured; however, the Harwell court did not, in fact, state that the uninsured status of both the driver and the vehicle had to be proved. In Harwell , the driver of the vehicle who caused the accident, John Hinman, was not the owner of the vehicle; the vehicle's owner was Donald Eoff. It was stipulated that Hinman did not have liability insurance. The insured, however, introduced no evidence as to whether Eoff had insurance on his vehicle. The supreme court did not hold that the insured had to prove that both the owner and the operator of the offending vehicle were uninsured; rather, the court held that the insured failed to prove that the vehicle was an "uninsured vehicle" within the meaning of the plaintiff's uninsured-motorist policy and the predecessor statute to section 27-89-403. Harwell , 263 Ark. at 885-86, 568 S.W.2d at 18. For these reasons, we hold that Gailey is inapplicable to the case at bar.
On the issue of UM coverage, the circuit court also found that Cross failed to identify which AHTD truck and which AHTD driver caused the alleged negligence that led to her accident. The circuit court found that because both the truck and the driver were unknown, Arkansas law and the "hit-and-run" provision of the UM coverage required physical contact between the unidentified truck and Cross's vehicle. The court then found that there was no such contact; therefore, Cross was not entitled to UM coverage as a matter of law.
We hold that the circuit court erred in applying the "hit-and-run" provision of the UM coverage and in finding that there had to be contact between an AHTD truck and Cross's vehicle. Under the policy, an "uninsured motor vehicle" is also defined as a "hit-and-run" land motor vehicle whose owner or driver remains unknown and which strikes the insured or the vehicle the insured is occupying.
In this case, it was undisputed that the AHTD owned the dump trucks used in the construction project. There was also evidence presented that one of five named AHTD employees drove the dump truck in question, which is some evidence of the identity of the driver of the truck. Because the owner of the motor vehicle or the driver was not unknown, it is clear that the "hit-and-run" provision does not apply. Accordingly, the requirement that the dump truck "strike" Cross's vehicle does not apply either. This case is not a hit-and-run case, in which the insured has no idea who hit him or her. Therefore, the circuit court erred in granting summary judgment in favor of State Farm based on the requirement in the "hit-and-run" provision that an AHTD dump truck strike Cross's vehicle. We reverse the circuit court's summary-judgment order in favor of State Farm finding that Cross was not entitled to UM coverage as a matter of law.
Because we hold herein that Cross presented factual questions sufficient to survive summary judgment on the issue of whether she was entitled to UM coverage, we must next determine whether the circuit court erred as a matter of law in finding that Cross was excluded from UM coverage based on State Farm's government-owned-vehicle exclusion. This exclusion provides, "An uninsured motor vehicle does not include a land motor vehicle ... [o]wned by any government or any of its political subdivisions or agencies." (Emphasis in policy.) The circuit court noted that in Vaught v. State Farm Fire & Casualty Co. , 413 F.2d 539 (8th Cir. 1969) (interpreting Arkansas law), the exclusion was held to be void against public policy; however, the circuit court found that the issue had not been addressed by Arkansas appellate courts, and until the appellate courts held otherwise, the exclusion was valid and not void as against public policy.
In Vaught , the insured was involved in a collision with a vehicle owned by the City of North Little Rock. The insured filed an UM suit against State Farm, and State Farm responded that the claim was excluded under a government-owned-vehicle exclusion similar to the one in the instant case. The district court found the exclusion was against public policy and invalid, and the insured recovered a judgment. State Farm appealed based on the policy exclusion.
On appeal, State Farm contended that "because the Uninsured Motorist Act refers to the Motor Vehicle Safety and Responsibility Act [MVSRA] for the purpose of prescribing the limits of coverage, it is fair to look at the latter act to determine legislative intent as to exclusions." Vaught , 413 F.2d at 541. State Farm also argued that since the MVSRA contained an exclusion for vehicles owned by the government, a similar exclusion should be read into the Uninsured Motorist Act. Id. The Eighth Circuit disagreed, stating that "the answer to this contention is if the legislature had so intended, it could have been as explicit with respect to one as it was with the other." Id. The Eighth Circuit held that the policy exclusion defeated the purpose of the Uninsured Motorist Act, which is to provide insureds protection against inadequate compensation for injuries in a collision with uninsured motor vehicles. Id. The Eighth Circuit also held that the Uninsured Motorist Act and the MVSRA are not codified in in the same chapter and that the Uninsured Motorist Act does not specifically exclude government-owned vehicles. Id.
We apply the reasoning in Vaught to the instant case and hold that the application of the government-owned-vehicle exclusion violates Arkansas public policy. The purpose of UM coverage is to protect the insured from financially irresponsible motorists, Jacobs v. Gulf Insurance Co. , 85 Ark. App 435, 438, 156 S.W.3d 737, 738-39 (2004) (citing Pardon v. Southern Farm Bureau Cas. Ins. Co. , 315 Ark. 537, 868 S.W.2d 468 (1994) ), and this exclusion deprives Cross of that benefit.
The "the majority of courts in other jurisdictions that have considered the validity of exclusions for government-owned vehicles have found them to be void and unenforceable as contrary to their respective [uninsured] insurance laws." Jenkins v. City of Elkins , 230 W.Va. 335, 738 S.E.2d 1, 16 (2012) (citing Borjas v. State Farm Mut. Auto. Ins. Co. , 33 P.3d 1265, 1270 (Colo. App. 2001) ; Carter v. Saint Paul Fire & Marine Ins. Co. , 283 F.Supp. 384 (E.D. Ark. 1968) ; Higgins v. Nationwide Mut. Ins. Co. , 291 Ala. 462, 282 So.2d 301 (1973) ; Cropper v. State Farm Mut. Auto. Ins. Co. , 671 A.2d 423 (Del. Super. Ct. 1995) ;
United Servs. Auto. Ass'n v. Phillips , 740 So.2d 1205 (Fla. Dist. Ct. App. 1999) ; Franey v. State Farm Mut. Auto. Ins. Co. , 5 Ill.App.3d 1040, 285 N.E.2d 151 (1972) ; Cincinnati Ins. Co. v. Trosky , 918 N.E.2d 1 (Ind. Ct. App. 2009) (UIM coverage); Hillhouse v. Farmers Ins. Co. , 226 Kan. 68, 595 P.2d 1102 (Kan. 1979) ; Nationwide Mut. Ins. Co. v. Hatfield , 122 S.W.3d 36 (Ky. 2003) (UIM coverage); Mednick v. State Farm Mut. Auto. Ins. Co. , 31 So.3d 1133 (La. Ct. App. 2010) ; Young v. Greater Portland Transit Dist. , 535 A.2d 417 (Me. 1987) ; W. Am. Ins. Co. v. Popa , 352 Md. 455, 723 A.2d 1 (1998) ; Mass. Insurers Insolvency Fund v. Premier Ins. Co. , 449 Mass. 422, 869 N.E.2d 576, 583 (2007) ; Ronning v. Citizens Sec. Mut. Ins. Co. , 557 N.W.2d 363 (Minn. Ct. App. 1996) (UIM coverage); Welch v. Auto. Club Inter-Ins. Exch. , 948 S.W.2d 718 (Mo. Ct. App. 1997) ; Bartell v. Am. Home Assur. Co. , 310 Mont. 276, 49 P.3d 623 (2002) ; Boradiansky v. State Farm Mut. Auto. Ins. Co. , 141 N.M. 387, 156 P.3d 25 (2007) ; Gabriel v. Minn. Mut. Fire & Cas. , 506 N.W.2d 73 (N.D. 1993) (UIM coverage); Jennings v. Dayton , 114 Ohio App.3d 144, 682 N.E.2d 1070 (1996) ; State Farm Auto. Ins. Co. v. Greer , 777 P.2d 941 (Okla. 1989) ; Kmonk-Sullivan v. State Farm Mut. Auto. Ins. Co. , 746 A.2d 1118 (Pa. Super. Ct. 1999) ; Rueschemeyer v. Liberty Mut. Ins. Co. , 673 A.2d 448 (R.I. 1996) ; Kyrkos v. State Farm Mut. Auto. Ins. Co. , 121 Wash.2d 669, 852 P.2d 1078 (1993) (UIM coverage)).
These courts have reasoned "that the exclusion of government[-]owned vehicles from uninsured ... motorist coverage thwarts the expressed public policy of the statute setting forth the purpose of such coverage, namely to protect those innocent insureds who are harmed by an uninsured ... tortfeasor." Jenkins , 738 S.E.2d at 16 (citing Mednick , 31 So.3d at 1137 ). The minority of jurisdictions that have upheld the government-owned-vehicle exclusion have done so because either their statutes or regulations affirmatively authorized the exclusion. Jenkins , 738 S.E.2d at 16-17 (citing Giglio v. Am. Econ. Ins. Co. , 278 Conn. 794, 900 A.2d 27 (2006) ; Cont'l W. Ins. Co. v. Conn , 262 Neb. 147, 629 N.W.2d 494 (2001) ; Norcia v. Liberty Mut. Ins. Co. , 297 N.J.Super. 563, 688 A.2d 679 (N.J. Super. Law Div. 1996) ; Jones v. S. Farm Bureau Cas. Co. , 251 S.C. 446, 163 S.E.2d 306 (1968) ; Francis v. Int'l Serv. Ins. Co. , 546 S.W.2d 57 (Tex. 1976) ).
Accordingly, we hold that State Farm's government-owned-vehicle exclusion is void as it is contrary to the public-policy purpose behind the UM statute. Therefore, we reverse on this issue.
Reversed and remanded.
Abramson, Murphy, and Brown, JJ., agree.
Klappenbach and Whiteaker, JJ., concur in part and dissent in part.
The UM coverage defines an "uninsured motor vehicle" as "a land motor vehicle, the ownership, maintenance or use of which is not insured or bonded for bodily injury liability at the time of the accident."
For the same reasons, we hold that the circuit court erred in relying on AMI Civ. 2301 and finding that Cross was required to prove that both the dump truck and the operator of the truck did not have liability insurance before UM coverage was available to her.
See Ark. Code Ann. §§ 27-19-101 et seq. (Repl. 2014).
See Ark. Code Ann. § 27-19-604(8). | [
-110,
125,
-12,
-83,
-119,
96,
34,
90,
81,
-119,
108,
-109,
-65,
-64,
21,
45,
-26,
-5,
101,
75,
-9,
-89,
23,
2,
-48,
-109,
-77,
69,
17,
-53,
110,
108,
79,
32,
-114,
85,
96,
88,
-123,
122,
-54,
14,
42,
109,
88,
73,
36,
75,
64,
15,
65,
-97,
3,
62,
18,
67,
109,
42,
75,
-75,
-31,
56,
-53,
71,
127,
10,
-125,
68,
-72,
37,
-16,
8,
-108,
25,
80,
-22,
114,
-90,
-126,
-59,
79,
-103,
9,
102,
118,
49,
28,
-19,
-20,
-112,
38,
-94,
15,
-122,
-112,
57,
11,
11,
-105,
-100,
123,
5,
68,
-8,
-8,
5,
31,
108,
23,
-113,
22,
-79,
109,
96,
28,
11,
-25,
-33,
54,
117,
-56,
-14,
85,
71,
110,
-101,
-117,
-10
] |
PHILLIP T. WHITEAKER, Judge
Craig Martens appeals a White County Circuit Court order denying his request for automatic termination of alimony payments upon the remarriage of his ex-wife Melanie Martens (now Blasingame). For the reasons set forth in this opinion, we affirm.
Martens and Blasingame were married in May 1996 and divorced in January 2015. The parties agreed on several issues, which were set forth in the divorce decree. They agreed on child custody, visitation, and child support. They also agreed on property division; specifically, Blasingame was awarded sole ownership of the parties' GMC Acadia and agreed to indemnify, defend, and hold Martens harmless from any and all indebtedness owed on the vehicle. Additionally, they agreed on alimony, and the decree awarded Blasingame "alimony" in the amount of $702.34 for 48 consecutive months-the exact amount and duration of the car payments on the Acadia.
After the decree was entered, Martens made only two spousal-support payments. Martens unilaterally ceased his alimony payments, believing Blasingame had begun cohabitating with her boyfriend in March 2015. In May 2015, Blasingame remarried. On December 15, 2016, the Office of Child Support Enforcement notified Martens that it would begin withholding past-due and future claims for child and spousal support from his wages. As a result, Martens filed a motion to clarify the divorce decree relating to alimony. Citing Arkansas Code Annotated section 9-12-312, Martens argued that he no longer owed spousal support because his liability for alimony automatically ceased in March 2015 upon Blasingame's cohabitation, or at the very latest, in May 2015 when Blasingame remarried.
The court held a hearing on the motion to clarify. At the hearing, both Martens and Blasingame testified to the nature of the alimony award within the decree. Blasingame testified that the parties had entered into an agreement that Martens would pay her $702.34 for 48 consecutive months in periodic alimony, representing the remaining balance of car payments on the GMC Acadia that she had been awarded. Martens agreed that the amount of spousal support was calculated based on the car payment, but that it was designated as "alimony" so that he could deduct it from his taxes and so that it would automatically terminate if Blasingame remarried. Since Blasingame had remarried, Martens took the position that his obligation to pay alimony terminated by operation of law. Blasingame acknowledged that the law terminates alimony upon remarriage of the receiving spouse, unless otherwise ordered. However, she understood that, because the "alimony" was calculated based on the remaining balance on the automobile loan, Martens was still required to make the payments under their agreement. Martens admitted that he was unaware that spousal support could continue after remarriage if the parties agreed.
After hearing the testimony and arguments of counsel, the trial court held that, although designated as alimony, the $702.34 was in actuality a payment pursuant to a property-settlement agreement reached by the parties. In so finding, the court noted that the "alimony" payments were derived from the amount owed on the vehicle. It also noted that the way the other property was divided in the divorce, along with Blasingame's apparent lack of need at the time, further militated toward a finding of property settlement over alimony. As a result, the trial court refused to find that the payments were terminated upon Blasingame's remarriage. Martens appeals.
In reviewing domestic-relations cases, we perform a de novo review. Taylor v. Taylor , 369 Ark. 31, 250 S.W.3d 232 (2007) ; Farrell v. Farrell , 365 Ark. 465, 231 S.W.3d 619 (2006). We will not reverse the trial court's finding of fact unless it is clearly erroneous. Id. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id.
Martens contends that the trial court erred in characterizing the "alimony" payments in the divorce decree as a property-division settlement. We agree that the trial court erred in finding that the "alimony" payments in the decree were provisions of a property-settlement agreement and not, in actuality, alimony payments. The clear and unambiguous language of the decree designates the payments as alimony. Both parties admitted at the hearing that they had agreed that the payments were to be considered alimony. Thus, the payments set forth in the divorce decree were, in fact, alimony payments.
Next, Martens argues that the court erred in concluding that the alimony payments were nonmodifiable and in denying his request for termination of alimony by operation of law. We disagree.
Martens bases his argument on the application of Arkansas Code Annotated section 9-12-312(a)(2) :
Unless otherwise ordered by the court or agreed to by the parties , the liability for alimony shall automatically cease upon the earlier of:
(A) The date of the remarriage of the person who was awarded the alimony;
....
(D) The living full time with another person in an intimate, cohabitating relationship.
Ark. Code Ann. § 9-12-312(a)(2)(A), (D) (Repl. 2015) (emphasis added). Under our de novo review, we find that the parties reached an independent agreement for the payment of alimony; thus, removing it from the automatic-cessation requirements of the law.
The Arkansas Supreme Court has distinguished the two major types of agreements for the payment of alimony. In Seaton v. Seaton , 221 Ark. 778, 255 S.W.2d 954 (1953), the court stated:
Our decisions have recognized two different types of agreement for the payment of alimony. One is an independent contract, usually in writing, by which the husband, in contemplation of the divorce, binds himself to pay a fixed amount or fixed installments for his wife's support. Even though such a contract is approved by the chancellor and incorporated in the decree, as in the Bachus [v. Bachus , 216 Ark. 802, 227 S.W.2d 439] case, it does not merge into the court's award of alimony, and consequently, as we pointed out in that opinion, the wife has a remedy at law on the contract in the event the chancellor has reason not to enforce his decretal award by contempt proceedings.
The second type of agreement is that by which the parties, without making a contract that is meant to confer upon the wife an independent cause of action, merely agree upon "the amount the court by its decree should fix as alimony." ... A contract of the latter character is usually less formal than an independent property settlement; it may be intended merely as a means of dispensing with the proof upon an issue not in dispute, and by its nature it merges in the divorce decree.
Id. at 780, 255 S.W.2d at 955-56. (internal citations omitted). The agreement need not be in writing to be considered a binding, independent contract of the first type. See Linehan v. Linehan , 8 Ark. App. 177, 649 S.W.2d 837 (1983).
Here, both parties admitted to an agreement regarding the payment of alimony. They both admitted that the alimony payments were designed to cover the remaining balance of the automobile loan covering the GMC Acadia. They further agreed to alimony payments of a designated sum for a designated period of time. In Artman v. Hoy , 370 Ark. 131, 257 S.W.3d 864 (2007), our supreme court held that section 9-12-312, which provides for the automatic termination of alimony when the receiving spouse remarries or cohabitates, does not apply to an agreement for the payment of alimony over a term of years, even when the decree does not specifically address the effect of remarriage or cohabitation on the alimony obligation. Instead, when the parties agree to alimony for a designated period of time, it follows that there has been an agreement as contemplated by section 9-12-312(a), such that the automatic-termination provision regarding remarriage or cohabitation is not applicable. Id.
Because we can affirm the trial court when it reaches the right result, even though it may have announced the wrong reason, Delgado v. Delgado , 2012 Ark. App. 100, 389 S.W.3d 52, we hereby affirm the trial court's decision to deny Martens's request for termination of his alimony payments.
Affirmed.
Gladwin and Brown, JJ., agree.
Martens does not challenge the trial court's ruling on child support, and it is not discussed here.
Martens admitted that, before the decree was entered, the parties informed the court that a settlement had been reached; that he confirmed to the court that he was agreeing to the alimony payments as indicated; that the agreement was read into the record; and that he signed the divorce decree. | [
84,
104,
-48,
108,
-120,
-128,
-125,
-88,
82,
-113,
35,
83,
-1,
-10,
20,
105,
-94,
63,
101,
97,
-45,
-77,
13,
64,
107,
-13,
-15,
-38,
-75,
-51,
-4,
-42,
92,
56,
-125,
-43,
100,
-117,
-113,
88,
-122,
6,
-85,
108,
-39,
7,
52,
-17,
64,
15,
37,
-114,
-45,
47,
57,
107,
108,
108,
93,
61,
-48,
-76,
-117,
4,
111,
7,
-109,
20,
-102,
41,
88,
44,
-108,
57,
12,
-32,
115,
54,
-58,
116,
105,
-69,
9,
52,
115,
0,
4,
-36,
-8,
-88,
14,
-1,
31,
-122,
-6,
121,
18,
75,
-74,
22,
92,
22,
-120,
-2,
90,
-115,
60,
100,
2,
-20,
-106,
-127,
4,
93,
20,
24,
-1,
-29,
112,
117,
-49,
-26,
93,
-57,
59,
-69,
-122,
-78
] |
Courtney Hudson Goodson, Associate Justice
Appellants City of Fort Smith and city directors Keith Lau, Mike Lorenz, and Andre Good (the City) appeal the circuit court's order granting appellee Bruce Wade's motion for summary judgment and finding that the City violated the open-meeting provisions of the Arkansas Freedom of Information Act (FOIA) when three of the city directors and the city administrator exchanged emails relating to city business. For reversal, the City argues that (1) emails cannot constitute a meeting because neither the Arkansas General Assembly nor this court has ever expressly stated that a meeting can be constituted by email, and (2) even if email can in some cases constitute a meeting, the content of the emails here was merely background information provided in advance of subsequent public meetings. We reverse and remand.
I. Factual Background
On January 9, 2017, Fort Smith hired Nathaniel Clark as its police chief. Clark was given a mandate to diversify employment in the police department. Fort Smith has established a Civil Service Commission (CSC). Fort Smith's CSC rules require an applicant for sergeant to have served five years on the Fort Smith police force, with additional years of service being required for higher ranking appointments. Clark sought to change CSC rules to allow for appointment of external candidates to openings for the rank of sergeant and higher.
A CSC meeting was scheduled for May 22, 2017, to consider Clark's proposed changes. Good sent a May 21, 2017 email to city administrator Carl Geffken and the city directors email group complaining that the Fraternal Order of Police was threatening a no-confidence vote in Clark, and that the chief, not the CSC, needed to make staffing decisions. Good also wrote that if the CSC considered the no-confidence vote, the CSC should be dissolved. The CSC did not adopt any rule changes at its May 22 meeting. Geffken sent a May 22 email to the board stating that the CSC chair was willing to consider "more narrow language to allow external applicants," but that he was not in favor of a "more restrictive policy." Good responded to Geffken's email agreeing that he was not in favor of a more restrictive policy, and Lorenz responded that he agreed "100% with you both!" The day after the CSC meeting, Good sent an email to Geffken sharing his notes and observations of the CSC meeting and stating his opinion that "it is in our best interest to dissolve our Civil Service Commission as quickly as possible."
On May 30, 2017 Geffken sent all the directors an email outlining four possible options in light of the CSC's refusal to change the rules: (1) do nothing, (2) pass a non-binding resolution showing the board's support for external candidates, (3) increase the size of the CSC, or (4) dissolve the CSC. Lorenz responded and suggested that the second option would be a start, but he also wrote that he was not sure he understood the CSC's function and that he believed that the human-resources department could handle CSC issues. Good responded with a May 31 email stating that, essentially, the board of directors should do whatever was necessary to give Clark more freedom to hire external applicants. Good suggested possible dissolution of the CSC. The proposed rule changes were discussed at length at a regular board meeting on June 6, 2017. The board adopted a non-binding resolution to support the changes that Clark sought.
On June 21, Wade filed a complaint against Fort Smith only alleging that the Fort Smith board of directors is bound by the open-meetings provisions of FOIA. Arkansas Code Annotated § 25-19-106 requires that notification of public meetings be given to certain people and entities, including those, like Wade, who request such notice. Wade alleged that the emails from May 21, through May 31, 2017, were "meetings" that violated the open-meeting provisions of FOIA.
Wade's attorney proposed a settlement whereby an agreed order would be entered in which Fort Smith would concede that the May 21-31 emails violated FOIA, and the court would order that future informal meetings, including by email, would not occur without notice when one or more board members make a proposal for board action and either (1) that board member requests support, or (2) one or more board members express support.
On August 9, Geffken emailed the proposed settlement to the board, and Lau emailed his opposition. An hour later, Good emailed his agreement with Lau. Two days later, Lorenz emailed his opposition. The proposed settlement was discussed at a September 12, 2017 public-study meeting, but it was not adopted. Wade amended his complaint to add Lau, Lorenz, and Good as defendants and argued that their responses to Geffken's email constituted an additional FOIA violation.
The parties filed cross-motions for summary judgment. On January 4, 2018, the circuit court granted Wade's motion. The City filed its notice of appeal on January 30. The court allowed Wade to file a motion for attorney's fees and costs. Wade filed an amended bill of costs waiving all claims except for $ 172.50 for filing and summons fees, which the court granted. On February 26, the City filed a second notice of appeal.
II. Standard of Review
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, responses to requests for admission, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Cannady v. St. Vincent Infirmary Med. Ctr. , 2018 Ark. 35, 537 S.W.3d 259. On appeal, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party leave a material question of fact unanswered. Id. This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. We review questions of law de novo. Miracle Kids Success Acad., Inc. v. Maurras , 2019 Ark. 146, 573 S.W.3d 533.
III. Analysis
A. Email as a Potential Meeting
The City first argues that (1) neither the General Assembly nor this court has ever equated email with FOIA meetings, and (2) the constitutional infirmities created by the circuit court's declarations should be avoided by reversing the circuit court's order. Essentially, the City argues that because FOIA does not include language that a public meeting can be constituted by electronic communication, this court should establish a bright-line rule that FOIA's reach does not extend to email. We disagree.
In relevant part, Arkansas Code Annotated § 25-19-106 provides as follows:
(a) Except as otherwise specifically provided by law, all meetings, formal or informal, special or regular, of the governing bodies of all municipalities, counties, townships, and school districts and all boards, bureaus, commissions, or organizations of the State of Arkansas, except grand juries, supported wholly or in part by public funds or expending public funds, shall be public meetings.
(b)(1) The time and place of each regular meeting shall be furnished to anyone who requests the information.
(2) In the event of emergency or special meetings, the person calling the meeting shall notify the representatives of the newspapers, radio stations, and television stations, if any, located in the county in which the meeting is to be held and any news media located elsewhere that cover regular meetings of the governing body and that have requested to be so notified of emergency or special meetings of the time, place, and date of the meeting. Notification shall be made at least two (2) hours before the meeting takes place in order that the public shall have representatives at the meeting.
Ark. Code Ann. § 25-19-106(a) - (b)(1)(2) (Supp. 2017).
The City acknowledges that we have said that a FOIA meeting may occur even in the absence of an actual gathering of members in the case of a telephone poll or when serial third-party contact is made to obtain approval of action. See Harris v. City of Fort Smith , 359 Ark. 355, 197 S.W.3d 461 (2004) (holding that one on one meetings, including telephone conversations, between the administrator and city directors to obtain a decision on a property purchase were informal meetings subject to FOIA); Rehab. Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency, Inc. , 285 Ark. 397, 687 S.W.2d 840 (1985) (holding that a telephone poll with proper notice may be an acceptable type of open meeting).
The City argues that emails cannot constitute a meeting because the General Assembly amended FOIA by Act 1653 of 2001 to include "electronic or computer-based information" as "public records" pursuant to Arkansas Code Annotated § 25-19-103 but expressed no intention at that time that electronic communications can constitute a public meeting. However, we decided Harris after that amendment, and in the fifteen years since the General Assembly has not enacted legislation to change our interpretation that telephone conversations can, in some cases, constitute a meeting. The General Assembly is presumed to be familiar with this court's interpretations of its statutes, and if it disagrees, it can amend these statutes. Air Evac EMS, Inc. v. USAble Mut. Ins. Co. , 2017 Ark. 368, 533 S.W.3d 572. FOIA does not include "telephone communications" in its definition of a public meeting, but the General Assembly has not amended the statute post- Harris . We do not see any material difference between the use of email exchanges to conduct public business and telephone conversations to conduct public business. For the same reasons, the application of FOIA's public meeting provisions to emails does not present either a separation of power issue or constitutional issue any more than the telephone calls at issue in Harris .
We liberally construe FOIA to accomplish its broad and laudable purpose that public business be performed in an open and public manner. McCutchen v. City of Fort Smith , 2012 Ark. 452, 425 S.W.3d 671. We therefore have no difficulty in concluding that FOIA's open-meeting provisions apply to email and other forms of electronic communication between governmental officials just as surely as they apply to in-person or telephonic conversations. It is unrealistic to believe that public business that may be accomplished via telephone could not also be performed via email or any other modern means of electronic communication. Neither this court nor the General Assembly can be expected to list all such communication methods or anticipate others yet to emerge. Exempting electronic communication would allow governmental officials who are so inclined to make decisions in secret, leave the public in the dark, and subvert the purpose of FOIA's open-meeting provisions.
B. Content of the Emails
Although we hold that email communication is subject to FOIA's open-meeting provisions, that does not end our analysis. The City argues that even if email communication can qualify as a meeting, the emails in this instance were only "background information," and "non-decisional" information sharing. In McCutchen , the city director provided five of the seven board members with a copy of a proposed ordinance and recommended its passage. Some board members voluntarily stated their positions to the city director. We stated that
[w]e recognize that Kelly recommended in the memorandum that Board members pass the proposed ordinance and that some Board members voluntarily stated their positions to Kelly, but Kelly did not solicit responses from Board members in the memorandum, and there is no evidence that the issue was discussed or debated prior to the study session. Furthermore, there is no evidence that the Board members exchanged any correspondence about the memorandum. We hold that the circuit court did not err in concluding that Kelly did not violate the open-meetings provision of the FOIA when he presented to individual Board members, in advance of a study session, a memorandum expressing his opinion on a proposed ordinance that might come before the Board.
McCutchen , 2012 Ark. 452 at 12, 425 S.W.3d at 679.
This case is analogous to McCutchen in that no response was solicited. No board member responded to either Good's May 21 email or his May 23 notes on the CSC meeting. Good and Lorenz responded to Geffken's May 22 email, and only Good and Lorenz responded to Geffken's May 30 email advising the board of its options. No decision was made, and the board discussed the proposed CSC rule change at its June 6, 2017 public meeting.
Likewise, the August emails regarding the settlement proposal show that no decision was made through the use of email. Geffken sent an email to the board with his recommendations on the settlement proposal and received three unsolicited responses. The issue was discussed at a public-study meeting and because no two board members asked for the settlement to be placed on the agenda for action, the settlement was rejected. The facts here are distinguishable from those in Harris and Rehab Hosp. Servs. Corp. in that no decision was either sought or made. Rather, like the communication in McCutchen , the emails here contain information, a recommendation, and unsolicited responses with no decision. As in McCutchen , the communication does not violate the open-meeting provisions set forth in Arkansas Code Annotated § 25-19-106, and we reverse and remand this matter to the circuit court for the entry of an order consistent with this opinion.
Reversed and remanded.
Hart, Wood, Wynne, and Womack, JJ., concur in part and dissent in part.
Josephine Linker Hart, Justice, concurring in part and dissenting in part.
This case involves an email group composed of all seven members of the City of Fort Smith Board of Directors. The email address which disseminates an email to all members of the Fort Smith Board of Directors is [email protected]. It is not disputed that the email exchanges that underlie this lawsuit concerned proposals for altering or scrapping the city's civil service commission.
In El Dorado v. El Dorado Broad. Co. , 260 Ark. 821, 824, 544 S.W.2d 206, 207 (1976), this court defined an "informal meeting" as "any group meeting called by the mayor or any member of the city council at which members of the city council, less in number than a quorum meet for the purpose of discussing or taking any action on any matter on which foreseeable action will be taken by the city council." Furthermore, in Harris v. City of Fort Smith , 359 Ark. 355, 197 S.W.3d 461 (2004), this court held that telephone communication between city officials and board members where official business was discussed could constitute a public meeting. These two cases lead to the inevitable conclusion that communication via the email group are "public meetings" for the purposes of the Arkansas Freedom of Information Act (FOIA).
It is undisputed that the emails were disseminated to all of the Fort Smith Board of Directors and that the purpose of the emails in question were to discuss official city business. Further, there is nothing inherent in email that would distinguish it from the telephone contact in Harris . Like a phone call, an email is a nearly instant communication via an electronic medium. The fact that emails can also be considered public records is a red herring. The fact that emails can be archived allow them to be both the communication and the record of that communication.
Because the FOIA is remedial legislation, it must be liberally construed to accomplish its purpose. Eldorado Broad. Co., supra. The purpose of FOIA is clearly stated in the act itself:
It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this chapter is adopted, making it possible for them or their representatives to learn and to report fully the activities of their public officials.
Ark. Code Ann. § 25-19-102. Accordingly, I join the majority in concluding that emails between public officials constitute a "public meeting" as contemplated by FOIA's open-meeting provision.
However, today's majority opinion ultimately fails to advance the clearly stated purpose of the FOIA. In its fact-finding, the majority has adopted a test for determining whether email exchanges constitute a public meeting that will render its conclusion that emails can constitute a public meeting illusory. Perhaps unwittingly, the majority has imposed a requirement that, to constitute a meeting, an email must: (1) directly solicit a response; (2) render a decision; and (3) involve more than three-sevenths of a city's board of directors. Worse still, these determinations will almost certainly require a lawsuit to resolve.
Contrary to the majority's assertions, the case before us is not all analogous to McCutchen v. City of Fort Smith , 2012 Ark. 452, 425 S.W.3d 671. Whereas the case before us involves an email group, McCutchen concerned a delivery of documents, including a draft ordinance to several of Fort Smith's directors. During the delivery of these documents to individual directors, the city administrator discussed the contents of the packet. Importantly, the McCutchen court noted
Prior to each meeting, each member of the Board is provided an agenda and informational package of documents containing a briefing report for each item and a draft resolution or ordinance for each item. After delivery to the Board members, the information packets, as public documents, are made available to any member of the press or public who requests a copy. The documents are also available on the City's website.
Accordingly, the information delivered by the city administrator was made available to the public as a matter of course. This included the city administrator's recommendation that the new ordinance be adopted. The holding in McCutchen was therefore very limited: the administrator's one-on-one lobbying for the adoption of the ordinance was held not to be a "public meeting."
The McCutchen court stated:
We recognize that Kelly [the city administrator] recommended in the memorandum that Board members pass the proposed ordinance and that some Board members voluntarily stated their positions to Kelly, but Kelly did not solicit responses from Board members in the memorandum, and there is no evidence that the issue was discussed or debated prior to the study session. Furthermore, there is no evidence that the Board members exchanged any correspondence about the memorandum. We hold that the circuit court did not err in concluding that Kelly did not violate the open-meetings provision of the FOIA when he presented to individual Board members, in advance of a study session, a memorandum expressing his opinion on a proposed ordinance that might come before the Board.
Again, it is noteworthy that the memorandum was made available to the public through FOIA.
In the case before us, the email group was established to discuss public business, which the directors obviously did. Today's majority opinion denies the electorate in Fort Smith insight into the performance of its elected officials and allows those public officials to make their decisions in secret. Secrecy is poison to democracy. On this point, I respectfully dissent. | [
52,
-22,
-24,
-36,
60,
65,
-98,
54,
89,
-7,
-26,
115,
45,
-104,
22,
127,
-85,
61,
84,
73,
-59,
-74,
-58,
107,
98,
-45,
-5,
-59,
-1,
-49,
-12,
-36,
89,
113,
-54,
-43,
70,
-54,
-113,
-36,
-122,
-125,
3,
-23,
-48,
-64,
48,
43,
18,
-113,
53,
126,
-14,
60,
24,
67,
-55,
40,
93,
-96,
-48,
123,
-120,
-115,
95,
4,
-95,
-76,
29,
-121,
-15,
46,
24,
49,
-119,
-24,
51,
-90,
-122,
116,
111,
123,
44,
42,
96,
2,
-12,
-41,
-100,
-113,
92,
-98,
-99,
-90,
-107,
25,
106,
37,
-106,
-109,
101,
16,
11,
-10,
-25,
45,
57,
108,
15,
-50,
-60,
-127,
31,
124,
-106,
67,
-21,
3,
16,
117,
-36,
-10,
-33,
79,
51,
91,
-114,
-48
] |
N. MARK KLAPPENBACH, Judge
Appellant Fred Albert Kauffeld was convicted by a Johnson County jury of second-degree murder, first-degree murder, and residential burglary. Appellant was sentenced to concurrent prison terms of "0 months," twenty-eight years, and five years, respectively. The charges arose from a burglary at the home of Bill Nobles and the death of an auxiliary sheriff's deputy who had responded to the call. Appellant's direct appeal was affirmed by our court in Kauffeld v. State , 2017 Ark. App. 440, 528 S.W.3d 302. Appellant filed a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37 asserting that (1) his two murder convictions violated double jeopardy and (2) his counsel was ineffective for failing to request a change of venue. The circuit court entered an order denying appellant's petition without conducting an evidentiary hearing. Appellant appeals. The State acknowledges that although it was permitted to try appellant on two alternative theories of murder, only one murder conviction is permissible under the law. We reverse and remand on the double-jeopardy issue, and we affirm as to the venue issue.
We do not reverse the denial of postconviction relief unless the circuit court's findings are clearly erroneous. Johnson v. State , 2018 Ark. 6, at 2, 534 S.W.3d 143, 146. A finding is clearly erroneous when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that the circuit court made a mistake. Id.
The benchmark for judging a claim of ineffective assistance of counsel must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Pursuant to Strickland , we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance of counsel must show that his counsel's performance fell below an objective standard of reasonableness. Mancia v. State , 2015 Ark. 115, 459 S.W.3d 259. A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Osburn v. State , 2018 Ark. App. 97, 538 S.W.3d 258. Second, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Id. The petitioner must show there is a reasonable probability that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. Additionally, conclusory statements that counsel was ineffective cannot be the basis for postconviction relief. Id.
Appellant's first argument relates to a double-jeopardy issue. The State presented two theories to support its allegation that Kauffeld committed capital murder. One theory rested on the allegation that he intentionally shot and killed a law enforcement officer acting in the line of duty, and it resulted in the jury's finding of guilt on second-degree murder (count 1). The other theory rested on the allegation that he killed a person in the course of or in immediate flight from residential burglary, and it resulted in the jury's finding of guilt on first-degree murder (count 2). The circuit court received those guilty verdicts and then moved the trial along to the sentencing phase.
The circuit court instructed the jury that "there will be no sentencing instructions or verdict forms provided to you" on second-degree murder because that was an "alternative count" to first-degree murder. The jury was instructed on the possible range of sentencing for first-degree murder and for residential burglary. The jury deliberated and returned a sentence of twenty-eight years for first-degree murder and five years for residential burglary, recommending concurrent sentences. The circuit court accepted those sentences. The sentencing order, however, reflects three convictions and sentences: second-degree murder ("0 months"), first-degree murder (twenty-eight years), and residential burglary (five years).
In his Rule 37 petition, appellant argued to the circuit court that the two murder convictions violate the rule against double jeopardy. Collateral attacks on a judgment are cognizable in a postconviction challenge to determine whether a judgment was void because it violated fundamental constitutional rights. Jackson v. State , 2013 Ark. 19, 2013 WL 298081. Appellant argued that the first-degree murder conviction should be vacated because it was count 2, and thus second in time to second-degree murder in count 1. The State responded that having both convictions on the sentencing order was a violation of the double-jeopardy clause but was merely a clerical error that required correction by eliminating the erroneous conviction and "0" sentence for second-degree murder. The circuit court determined that the jury did not consider multiple punishments for the same homicide, appellant was sentenced only on first-degree murder, and he was not subjected to multiple punishments. The circuit court found that the "entry of '0' months in the sentencing order amounts to a clerical error and shall be corrected by entry of an order Nunc Pro Tunc." No such corrected sentencing order is present in the record before us.
A double-jeopardy argument constitutes an attack on a judgment cognizable in a postconviction challenge because it concerns violation of a fundamental constitutional right. Jackson, supra . A defendant cannot object to a double-jeopardy violation until he has actually been convicted of the multiple offenses, because it is not a violation of the prohibition against double jeopardy for the State to charge and prosecute on multiple and overlapping charges. Brown v. State , 347 Ark. 308, 65 S.W.3d 394 (2001). It is only after the jury returns guilty verdicts on both offenses that the circuit court would be required to determine whether convictions could be entered as to both based on the same conduct. Id. In this case, the circuit court did make that determination, finding that only a single punishment could be entered for committing only one murder.
The disagreement here is as to the proper remedy for the mistake evident on the sentencing order. Appellant argues on appeal that we must vacate the first-degree murder conviction that resulted in the twenty-eight-year sentence and remand for resentencing on the second-degree murder conviction. Appellant provides no supportive or persuasive authority to support his "timing" theory, and he acknowledges that he could not find any such supportive authority. It was obvious to the circuit court, and it is likewise obvious to our court, that the entry of a conviction and sentence on second-degree murder was a mere clerical error.
A true clerical error is one that arises not from an exercise of the court's judicial discretion but from a mistake on the part of its officers. Lewis v. State , 2017 Ark. 211, 521 S.W.3d 466. The State proceeded on two theories of murder, but the jury considered punishment only as to first-degree murder. The jury rendered a sentence only as to first-degree murder, not second-degree murder. We reverse the circuit court's order denying postconviction relief and remand for the circuit court to enter a proper sentencing order that correctly reflects that appellant was convicted of and sentenced for the commission of first-degree murder and residential burglary.
For his second point on appeal, appellant asserts that his trial counsel was ineffective for failing to file a motion seeking a change of venue. He maintains that extensive pretrial publicity prevented him from receiving a fair trial in Johnson County. Specifically, he alleges that there were at least nineteen newspaper articles published, there was repeated television coverage, and there were Facebook posts about this case, which painted the deputy in glowing terms and appellant in negative terms. This extensive pretrial publicity, he argues, tainted the jury pool and deprived him of a fair trial. Appellant contends that he asked his counsel to seek a change of venue, but his counsel replied that "he traded that issue for the State taking the death penalty off the table." Appellant asserts that "Conway or Faulkner counties would have been a more neutral forum." Appellant argues that his counsel was ineffective for failing to request a change of venue, entitling him to a new trial. We disagree.
As a general rule, the decision whether to seek a change of venue is largely a matter of trial strategy and is therefore not an issue to be debated under our postconviction rule. Huls v. State , 301 Ark. 572, 785 S.W.2d 467 (1990). Furthermore, to establish that the failure to seek a change in venue amounted to ineffective assistance of counsel, a petitioner must offer some basis on which to conclude that an impartial jury was not empaneled. Id. Appellant has failed in that regard. A defendant is not entitled to a jury totally ignorant of the facts of a case, and he is not entitled to a perfect trial, only a fair one. Van Winkle v. State , 2016 Ark. 98, 486 S.W.3d 778. Jurors are presumed unbiased, and the burden of demonstrating actual bias is on the petitioner. Huls , supra .
Appellant does not argue that the jury that tried him was not impartial. In fact, the record demonstrates that the circuit court inquired of the potential jurors whether anyone had heard about this case in any form of media or by word of mouth. The circuit court instructed the potential jurors that although they were not expected to be totally ignorant of the alleged facts of the case, they were expected to put that completely aside, give appellant a fair trial, and follow the law as provided in the jury instructions. The potential jurors agreed that they were able to abide that instruction. The record reflects that appellant's counsel also asked the potential jurors about any exposure to pretrial publicity and whether they could give appellant a fair trial based only on the evidence. The jurors who were seated after voir dire were satisfactory to both the State and the defense. There is no evidence that the members of this jury were biased against appellant and unable to hear the evidence impartially. Appellant has failed to carry the burden to establish ineffective assistance of counsel based on the failure to seek a change in venue. See Bell v. State , 324 Ark. 258, 920 S.W.2d 821 (1996) ; Shadwick v. State , 2017 Ark. App. 243, 519 S.W.3d 722.
Reversed and remanded in part; affirmed in part.
Virden and Whiteaker, JJ., agree. | [
48,
-22,
-7,
-36,
8,
96,
26,
56,
66,
-109,
50,
82,
45,
-30,
1,
121,
51,
25,
100,
113,
-64,
-105,
23,
105,
-30,
-5,
73,
-43,
-70,
74,
-11,
-10,
72,
96,
-49,
85,
70,
64,
-27,
88,
-114,
0,
-72,
-12,
-45,
-63,
48,
127,
84,
7,
-75,
-98,
-5,
43,
54,
74,
73,
44,
91,
-73,
66,
-103,
-53,
-121,
77,
20,
-93,
-92,
-104,
6,
88,
98,
-100,
121,
3,
-7,
115,
-106,
-58,
116,
99,
59,
12,
98,
98,
0,
16,
-21,
-92,
-87,
46,
61,
-103,
-89,
-103,
73,
75,
13,
-74,
-65,
124,
54,
14,
-2,
-25,
92,
57,
108,
6,
-49,
-48,
-77,
15,
113,
-106,
-45,
-21,
5,
49,
101,
-116,
-30,
84,
87,
81,
-65,
-38,
-75
] |
JOSEPHINE LINKER HART, Justice
Robert Williams appeals from a Nevada County Circuit Court order denying him a resentencing hearing and imposing a life sentence with parole eligibility pursuant to the Fair Sentencing of Minors Act of 2017 (FSMA). On appeal, Williams argues that he is entitled to a new sentencing trial in accordance with Harris v. State , 2018 Ark. 179, 547 S.W.3d 64 ; and that denying him a new sentencing trial violated his fundamental-fairness and equal-protection rights. We reverse and remand for resentencing in accordance with Harris .
Williams was convicted of capital murder that occurred on July 15, 2004. Williams and two others killed eighty-year-old James Cummings in his bed during a home-invasion robbery. At the time of the offense, Williams was less than eighteen years of age. The jury sentenced Williams to life imprisonment without the possibility of parole. However, his life sentence was vacated pursuant to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).
The Miller Court held that the Eighth Amendment forbids a mandatory sentence of life without parole for a juvenile offender and that a juvenile facing a life-without-parole sentence is entitled to a sentencing hearing at which the finder of fact must consider the individual characteristics of the defendant and the circumstances of the crime, reserving the harshest sentence-life without the possibility of parole-for only those offenders manifesting "irreparable corruption." Id. On remand from the Supreme Court, we decided in Jackson v. Norris , 2013 Ark. 175, 426 S.W.3d 906, a companion case to Miller , that after the grant of habeas relief, Jackson was entitled to a sentencing hearing at which Miller evidence could be considered. We further held that Jackson's sentence must fall within the statutory discretionary sentencing range for a Class Y felony, which is ten to forty years or life. Id . In Kelley v. Gordon , 2015 Ark. 277, 465 S.W.3d 842, we held that Jackson was to be applied retroactively to all Miller defendants.
On June 27, 2016, the Lincoln County Circuit Court granted Williams's habeas petition and vacated his sentence. The case was then transferred to Nevada County for a resentencing hearing. The hearing was set for August 27, 2017. However, the Arkansas General Assembly passed the FSMA (Act 539 of 2017), which became effective on March 20, 2017. The FSMA replaced life without parole as a sentence for juvenile offenders with a life sentence that allowed for parole eligibility. On June 22, 2017, the State filed a motion to resentence Williams under the FSMA. Williams opposed the State's motion, arguing that Jackson and Gordon entitled him to a resentencing hearing where a sentencing range consistent with a Class Y felony could be considered. The circuit court sentenced Williams under the FSMA to a term of life imprisonment with the possibility of parole after thirty years.
After the circuit court's order but before briefing commenced in this case, we handed down Harris v. State , 2018 Ark. 179, 547 S.W.3d 64, where we determined that individuals like Harris, who had their sentences vacated pursuant to Miller, were not subject to sentencing under the FSMA. On appeal, Williams argues that his case should be controlled by Harris even though Harris was handed down after the circuit court's ruling. He contends that he raised an argument to the circuit court that was substantially similar to the argument raised by Harris. Further, citing Kelley v. Gordon, supra , Williams asserts that he is entitled to a sentencing hearing as a matter of fundamental fairness. We agree.
While we are mindful that Harris was decided after the circuit court denied Williams a sentencing hearing, it is of no moment. We recently disposed of this very issue in Howell v. State , 2019 Ark. 59, 567 S.W.3d 842. We applied the exception to the preservation jurisprudence articulated by the Supreme Court in Hormel v. Helvering , 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037 (1941). Id. We noted that the Hormel exception applies when "there have been judicial interpretations of existing law after decision below and pending appeal-interpretations which if applied might have materially altered the result." Id. at 4-5, 567 S.W.3d at 558-59 (quoting Hormel , 312 U.S. at 558-59, 61 S.Ct. 719 ). We accepted the Supreme Court's rationale that rules of practice and procedure are devised to promote the ends of justice, not to defeat them. Furthermore, we note that Williams raised an argument to the circuit court that was nearly identical to the argument that Harris raised in his case. "Stare decisis" is Latin for "to stand by things decided." Black's Law Dictionary 1443 (8th ed. 2004). Under this doctrine, we are obligated to decide a similar issue in a manner consistent with our prior decision. We have likewise applied the broad holding in Harris to other appeals in which Miller defendants have been denied resentencing hearings. See, e.g. , Howell , 2019 Ark. 59, 567 S.W.3d 842 ; Ray v. State , 2019 Ark. 46, 567 S.W.3d 63 ; Segerstrom v. State , 2019 Ark. 36, 566 S.W.3d 466 ; Robinson v. State , 2018 Ark. 353, 563 S.W.3d 530. Accordingly, we reverse and remand this case to the circuit court to conduct a resentencing hearing.
Reversed and remanded.
Wood and Wynne, JJ., concur.
Womack, J., dissents. | [
-16,
-22,
-12,
60,
58,
-31,
10,
-108,
83,
-29,
-32,
83,
35,
-82,
1,
121,
-69,
81,
117,
105,
-44,
-73,
71,
-31,
-13,
-5,
79,
-42,
-78,
79,
-84,
-100,
12,
112,
90,
65,
66,
-120,
-19,
82,
-82,
11,
57,
-12,
91,
65,
48,
46,
124,
7,
53,
-66,
-93,
-81,
21,
-53,
73,
40,
91,
-81,
88,
-101,
-118,
7,
-50,
48,
-93,
-80,
-101,
34,
112,
126,
-36,
49,
8,
-24,
115,
38,
-126,
-12,
75,
-117,
44,
96,
-30,
0,
93,
71,
-88,
-127,
31,
110,
-99,
-121,
-38,
81,
75,
68,
-105,
-11,
106,
20,
14,
124,
-17,
-92,
85,
44,
-124,
-50,
20,
-79,
-115,
57,
-122,
-6,
-29,
5,
96,
117,
-50,
-30,
86,
-57,
120,
-61,
-106,
-42
] |
RAYMOND R. ABRAMSON, Judge
Douglas Alan Anderson appeals from a Sebastian County Circuit Court order revoking his suspended imposition of sentence (SIS) and sentencing him to fifteen years in the Arkansas Department of Correction (ADC) with another nine years suspended. On appeal, he argues that the revocation was improper because the SIS was an illegal sentence. Specifically, he contends that because he was sentenced as a habitual offender with four or more prior felony convictions, the SIS was not statutorily allowed. We disagree and affirm.
On February 10, 2006, Anderson entered guilty pleas to two counts of theft by receiving, a Class B felony, and three counts of commercial burglary, a Class C felony. For the theft charges, the circuit court sentenced him as a habitual offender to a term of 240 months in the ADC with an additional SIS for 240 months. The information indicated that Anderson had "previously been convicted of four (4) or more felonies[.]" The judgment-and-commitment order reflects that Anderson was sentenced as a habitual offender under Arkansas Code Annotated section 5-4-501(b) [ (1)(A)(ii) (Supp. 2005) ], which authorizes an enhanced sentence if the defendant has been convicted of four or more felonies.
This appeal pertains to an amended petition to revoke Anderson's SIS, which the State filed on July 26, 2017. The petition alleged that since his previous revocation, Anderson had committed the new offenses of residential burglary, aggravated assault, and third-degree domestic battering, and that he had failed to pay his restitution, court costs, and public-defender fee. At the conclusion of the August 24, 2017 hearing on the amended petition, the circuit court found that Anderson had violated the terms and conditions of his SIS based on testimony that he had kicked in the door of a residence and pointed a gun at the man who lived there. The circuit court also found that he had failed to make his court-ordered payments as directed. The circuit court revoked Anderson's SIS and sentenced him to a term of fifteen years in the ADC, with another nine years suspended. Anderson now appeals.
Anderson argues for the first time that because he was a habitual offender the circuit court could not suspend the imposition of any part of his sentence and that the SIS he received in 2006 was therefore illegal. Consequently, he maintains that in 2017 the circuit court lacked the authority to revoke an illegally imposed SIS. See, e.g. , Taylor v. State , 354 Ark. 450, 457, 125 S.W.3d 174, 179 (2003) (holding that a court cannot revoke an SIS that was illegally imposed; the remedy is to remand for resentencing).
It is well settled that we will address an allegation that a sentence is illegal even if it is raised for the first time in an appeal from a revocation. See, e.g. , Harness v. State , 352 Ark. 335, 339, 101 S.W.3d 235, 238 (2003) ; Vanoven v. State , 2011 Ark. App. 46, at 3, 380 S.W.3d 507, 510. When Anderson entered his guilty pleas in 2006, as now, it was illegal for a court to sentence the defendant solely to SIS or probation when the defendant was a habitual offender with two or more prior felony convictions. Ark. Code Ann. § 5-4-301(a)(2)(A)-(B) (Repl. 2006). However, that is not what occurred here. In 2006, the circuit court sentenced Anderson as a habitual offender to a term of 240 months in the ADC and an SIS for 240 months.
We turn now to two cases in which our court has addressed similar arguments regarding an original sentence being illegal because of the defendant's habitual-offender status and the circuit court's lack of authority to suspend a portion of it. In Chadwell v. State , 80 Ark. App. 133, 135-36, 91 S.W.3d 530, 531-32 (2002), Chadwell was sentenced in 1992 as a habitual offender to twenty years' imprisonment with ten years suspended. On appeal from a subsequent revocation of the suspended portion of the sentence, he argued, as Anderson does here, that the SIS was an illegal sentence and that it could not be revoked. Id. Our court disagreed, holding that because the circuit court also sentenced Chadwell to a ten-year prison term, it "did not lack authority" to impose the additional ten-year suspended sentence. Id.
Our court again addressed this issue in 2016. In Todd v. State , 2016 Ark. App. 204, at 4-5, 489 S.W.3d 207, 209, we noted that the General Assembly had never rejected our court's holding in Chadwell -that a circuit court can suspend a portion of a habitual-offender sentence when it also imposes a term of imprisonment. "The legislature is presumed to be familiar with the appellate courts' interpretation of its statutes, and it can amend a statute if it disagrees with those interpretations; absent such an amendment, the interpretation of the statute remains the law." Id. (quoting Pedraza v. State , 2015 Ark. App. 205, at 5, 465 S.W.3d 426, 430 ). Todd was a habitual offender with ten prior felony convictions when he was charged with new crimes in 2009. When he pled nolo contendere to the new charges, the circuit court sentenced him to concurrent terms of eight years' imprisonment to be followed by seven years' SIS. Our court, relying on Chadwell , rejected Todd's argument that the SIS was illegal because he was a habitual offender. Id. at 5, 489 S.W.3d at 209.
Anderson relies most heavily on State v. Joslin , 364 Ark. 545, 222 S.W.3d 168 (2006). However, it is distinguishable from the case at hand. In Joslin , the circuit court placed the appellant on probation for five years without imposing any term of imprisonment, even though Joslin was a habitual offender. Our supreme court held that the probation was illegal under section 5-4-301(a)(2)(B) and reversed and remanded to the circuit court. Id. In that case, the circuit court did not have the authority to sentence Joslin solely to probation because she was a habitual offender. Because she was charged by the State as a habitual offender and she pled guilty to a Class C felony as a habitual offender, she was only eligible for a sentencing range of three to twenty years' imprisonment pursuant to statute. Id. Here, Anderson was sentenced to a term of imprisonment in the ADC before his SIS began, so his reliance on Joslin is misplaced.
Based on our precedent, the circuit court in 2006 was clearly within its authority to impose an SIS following the prison term to which it sentenced Anderson. Accordingly, the same court, in 2017, was also within its authority to revoke Anderson's SIS upon finding that he had violated the terms and conditions of that sentence. Therefore, we affirm.
Affirmed.
Glover and Vaught, JJ., agree.
Anderson was also sentenced to concurrent prison terms of 120 months on each of the commercial burglary counts, but those sentences are not relevant to the issue on appeal.
This court has affirmed the circuit court's previous revocation of Anderson's SIS. See Anderson v. State , 2011 Ark. App. 350, 2011 WL 1795309. The State filed another petition to revoke in case No. CR-05-897 on October 16, 2012, to which Anderson pled no contest on December 18, 2013. The circuit court sentenced Anderson to the ADC for a period of two years, plus an additional nineteen years' SIS which was to run concurrent with his parole-violation sentence; he was given credit for jail time. On February 26, 2014, Anderson was released from the ADC. | [
80,
-20,
-35,
-4,
58,
-127,
27,
-76,
115,
-9,
-10,
83,
-85,
-26,
85,
123,
-95,
123,
112,
121,
-39,
-73,
37,
65,
99,
-13,
-29,
87,
-79,
79,
-11,
-108,
8,
112,
-62,
113,
70,
0,
-27,
-40,
-50,
3,
-104,
103,
-16,
66,
33,
47,
1,
-113,
33,
-98,
-89,
47,
16,
78,
105,
76,
91,
-82,
-104,
-109,
-111,
15,
111,
20,
-94,
-75,
-101,
6,
88,
56,
-108,
57,
2,
-22,
115,
-106,
-122,
116,
75,
-37,
44,
96,
-30,
-128,
93,
-41,
-84,
-120,
22,
126,
-99,
-122,
-40,
81,
75,
71,
-105,
-43,
118,
23,
28,
126,
110,
-108,
117,
108,
-121,
78,
28,
-111,
76,
49,
-108,
-22,
-5,
33,
48,
117,
-51,
-26,
92,
22,
123,
26,
-94,
-44
] |
KENNETH S. HIXSON, Judge
Appellant Ryan James Kirkland brings this interlocutory appeal after the Washington County Circuit Court denied his motion to dismiss his charges based on double-jeopardy grounds. On appeal, appellant contends that the circuit court erred in denying his motion to dismiss because the charges violate his right to be free from double jeopardy as protected by the United States and Arkansas Constitutions. We affirm.
Kirkland was charged with three counts of rape and two counts of sexual assault in the second degree. Appellant subsequently filed a motion in limine to exclude his booking photograph from being admitted into evidence at trial. He argued that any probative value was substantially outweighed by the danger of unfair prejudice to him. The State argued that the photograph was relevant to show what appellant looked like at the time of the abuse. The circuit court agreed with appellant and stated that appellant appeared "intimidating and scary" in the photograph and that the prejudice of the photograph outweighed any probative value. Therefore, the circuit court granted his motion after a hearing.
A jury trial commenced, and the State offered the testimony of several witnesses, including the minor victim. A.D. testified that appellant had moved into the home when she was approximately six years old. When she was eight, appellant began going into her bedroom in the middle of the night. A.D. testified that appellant would masturbate in her bed beside her and would ejaculate on her comforter. She further testified in detail that appellant sexually abused her from age eight to age sixteen, including vaginal penetration and forcing her to perform oral sex on him. In addition to A.D.'s testimony, testimony was offered that appellant's DNA matched the semen found on A.D.'s comforter.
However, during the State's direct examination of its ninth witness, the State's trial assistant plugged her cell phone into the laptop that ran the projector that was publishing a document to the jury. When the assistant plugged in her cell phone, a group of photographs appeared briefly on the screen, which included among them appellant's excluded booking photograph. The jury was immediately excused, and appellant requested a mistrial. During that hearing on the motion for mistrial, lead counsel for the State took responsibility for the mistake and explained that his staff should have "had that [cell phone] off." Over the State's objection, the circuit court granted the motion for mistrial. The circuit court specifically stated that it was making a finding that the publication was "inadvertent" but that it was granting a mistrial because the fact remained that the photograph had been viewed by the jury.
On March 10, 2017, appellant filed a motion to dismiss, alleging that the Double Jeopardy Clause precluded a second trial. In the accompanying brief, appellant argued that although one cannot ordinarily avail himself or herself of double-jeopardy protections when he or she requests a mistrial, there is an exception "where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial." Oregon v. Kennedy , 456 U.S. 667, 676, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). Appellant argued that the facts of this case were "of such an egregious nature" that they rose to "the level of intentional conduct." Alternatively, appellant encouraged the circuit court to impose a "reckless" standard and argued that the State's conduct was reckless, necessitating dismissal. However, appellant admitted that he was unable to find any case law that supported imposing a recklessness standard.
The State filed a response on April 17, 2017. It explained that one of the trial assistants "accidently, inadvertently, and unintentionally" caused a different window to display on the projector screen for the courtroom to view. It further argued that the trial record was devoid of any intentional conduct on the part of the prosecutors "and" or "or" their staff to "goad" appellant into requesting a mistrial. The State alleged that it had almost finished examining its ninth out of eleven witnesses when the photograph was accidentally published to the jury and that it had no intention of "goading" appellant into requesting a mistrial. Finally, the State argued that appellant's proposed "recklessness" standard is contrary to law and should be rejected.
The circuit court denied the motion to dismiss for violation of double jeopardy. In its order, filed on June 2, 2017, the circuit court made the following pertinent findings:
3. That no evidence was presented in the Defendant's brief to suggest that the State acted with a purpose of goading the defendant into moving for a mistrial.
4. That the actions by the trial court assistant for the State were inadvertent, accidental, and unintentional.
5. That the presence of the trial court assistant's cellular phone in the courtroom was not a violation of the court rules.
6. That this Court declines to adopt a new standard for reckless behavior, but even if it did, the trial court assistant's behavior was not reckless.
This interlocutory appeal followed.
Our supreme court has long recognized the right to an immediate appeal from the denial of a motion to dismiss on double-jeopardy grounds. Dilday v. State , 369 Ark. 1, 250 S.W.3d 217 (2007). The Fifth Amendment to the United States Constitution and article 2, section 8, of the Arkansas Constitution require that no person be twice put in jeopardy of life or liberty for the same offense. The Double Jeopardy Clause protects criminal defendants from (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Green v. State , 2011 Ark. 92, 380 S.W.3d 368.
We review a circuit court's denial of a motion to dismiss on double-jeopardy grounds de novo on appeal. Cox v. State , 2012 Ark. App. 499, 423 S.W.3d 131. When the analysis presents itself as a mixed question of law and fact, the factual determinations made by the circuit court are given due deference and are not reversed unless clearly erroneous. Id. However, the ultimate decision by the circuit court that the defendant's protection against double jeopardy was not violated is reviewed de novo with no deference given to the circuit court's determination. Id. The examination of the prosecutor's intent calls for the circuit court to make a finding of fact by inferring the existence or nonexistence of intent from objective facts and circumstances. Jackson v. State , 322 Ark. 710, 911 S.W.2d 578 (1995) (citing Kennedy , 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 ).
In Kennedy , 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416, the United States Supreme Court stated that, although there is ordinarily no double-jeopardy bar to retrial when the defendant requests the termination of his first trial, there is a narrow exception that will bar retrial. The Supreme Court held that the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial. Id. In other words, only where the governmental conduct in question is intended to "goad" the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first trial on his own motion. Id. Prosecutorial conduct that might be viewed as harassment or overreaching, even if it is sufficient to justify a mistrial on defendant's motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. Id. ; Cox , supra . Our supreme court has adopted the standards set forth in Kennedy and has declined on multiple occasions to broaden this standard, and we decline to do so. Green , supra .
Appellant argues that the circuit court's finding of fact that the State did not intend to provoke his motion for mistrial is clearly erroneous. In support, appellant argues that the State had repeatedly argued that the photograph should have been admissible and that, once excluded, the photograph should not have been "stored in such a way that it was easily accessible to the prosecution team." Additionally, appellant argues that the circuit court's finding could not have been reached without resorting to speculation because there was no sworn testimony presented at an evidentiary hearing and because "there is ample evidence that the State intended to provoke a mistrial motion."
We cannot agree with appellant's assertions. The State argued against the mistrial but was ultimately unsuccessful. Therefore, it is apparent that the State wished to continue with the first trial. Furthermore, the record does not support that a mistrial was to the State's advantage as the trial did not appear to be going badly for the State. See Cox , supra . A.D. had already testified to the sexual abuse, and her testimony alone was sufficient to sustain a conviction. Id. Additionally, there was testimony that appellant's DNA matched the semen found on A.D.'s comforter. Other than appellant's assertion otherwise, appellant fails to give any reason for the State to want a mistrial, and there is no indication that the State intentionally goaded appellant into requesting one. Thus, we cannot say on this record that the circuit court's factual findings were clearly erroneous or that the circuit court ultimately erred in denying appellant's motion to dismiss.
Affirmed.
Harrison and Murphy, JJ., agree. | [
112,
-18,
-84,
-100,
25,
97,
122,
52,
66,
-93,
114,
115,
47,
-34,
4,
127,
-30,
123,
85,
97,
-43,
-73,
19,
65,
-78,
-5,
-39,
87,
-74,
75,
-20,
-76,
76,
112,
-50,
-47,
70,
-56,
-25,
88,
-122,
0,
-71,
124,
82,
-62,
36,
43,
98,
11,
49,
-97,
-5,
45,
62,
-61,
73,
46,
91,
-68,
90,
19,
-102,
7,
109,
20,
-93,
54,
-101,
1,
-8,
46,
-100,
49,
0,
-88,
114,
-90,
-126,
116,
73,
-101,
9,
32,
98,
33,
4,
-25,
-19,
-119,
39,
63,
-103,
-90,
-40,
73,
75,
45,
-73,
-103,
118,
52,
9,
-2,
-13,
-50,
52,
108,
-122,
-49,
-108,
-71,
-121,
56,
4,
51,
-29,
61,
20,
117,
-49,
-30,
84,
87,
56,
-37,
-50,
-74
] |
MIKE MURPHY, Judge
Jim Nash, a licensed attorney appearing pro se, appeals from a jury's defense verdict on his claims for breach of contract, specific performance, and tortious interference with a business expectancy. Appellant argues six points for reversal, but his primary contention is that there was no compliance with Arkansas Rule of Civil Procedure 25 following the death of the original defendant. We affirm.
Appellant performed legal services for his brother, John R. Nash, Sr., for many years. These services included representation in administrative and regulatory matters and in the sale of a convenience store and a warehouse, as well as attempts to sell a liquor store owned by John R. Nash, Sr. According to appellant, he had an oral agreement with his brother to provide legal services on an as-needed basis and a "pay when you can" basis. After John R. Nash, Sr., died in April 2012, his widow, Norma Nash, informed appellant that his services were no longer required. A small estate proceeding was opened for John R. Nash, Sr., and appellant filed a claim against his estate for unpaid legal work.
Appellant subsequently sued Norma in April 2015 both individually and as trustee of the Norma Nash Living Trust (the trust). Appellant alleged in his complaint a breach-of-contract claim that Norma was transferring almost all her assets, including the liquor store, to the trust as a fraudulent transfer to defeat any claims against her husband's estate. The complaint also asserted claims for specific performance and tortious interference with a business expectancy. A discovery dispute arose, and appellant filed a motion to compel and a request for sanctions. However, Norma died on February 28, 2016.
A notice of suggestion of death was filed on March 22, 2016. Appellant filed a motion asking the circuit court to appoint both John R. Nash, Jr., (Nash Jr.) and Pam Glover as special administrators to represent Norma's estate and her trust. The trust responded to the motion, asserting that no probate proceedings had been opened and that no one had been appointed to succeed Norma. On May 18, 2016, the circuit court entered an order holding appellant's motions to compel and for sanctions in abeyance and directing appellant to file a substituted complaint to "include the proper parties to substitute for Defendant Norma Nash, now deceased, and any other proper parties to this action[.]" The order also stated that the amended complaint to be filed would satisfy the requirements of Rule 25 and other statutory requirements for revivor and substitution of parties.
Appellant filed an amended complaint on May 27. The complaint named as defendants Nash Jr. and Glover, individually and as cotrustees of the trust and as coadministrators of Norma's estate. Norma was still listed in the complaint both individually and as trustee. The complaint incorporated the allegations contained in the original complaint and asserted four causes of action-breach of contract, imposition of a constructive trust, and two counts alleging interference with a contract and business expectancy.
On June 24, Nash Jr. and Glover answered the amended complaint. They denied that any personal representatives or special administrators had been appointed for Norma's estate. On July 26, the circuit court entered an order prepared by the attorney for Nash Jr. and Glover dismissing appellant's claims against Norma in her individual capacity because no substitution had been entered within ninety days of the suggestion of death as required by Arkansas Code Annotated section 28-50-102 (Repl. 2012).
On August 2, appellant filed a motion to vacate the dismissal order. He alleged that the dismissal was made without a dismissal motion having been filed. He also recited that no probate proceedings had been initiated for Norma's estate.
Appellant filed an amended and supplemental complaint on September 9. Nash Jr. and Glover answered individually and as cotrustees of Norma's trust. However, they specifically denied that a special administrator had been appointed for Norma's estate.
On February 27, 2017, appellant filed another amended complaint keeping the same parties named as in the first amended complaint and adding Lyle and Perry as defendants "for Norma Nash, deceased."
A two-day jury trial was held on June 7 and 8, 2017. The jury returned verdicts in favor of "Defendants, Norma Nash and her substitutes and heirs" on the issues of breach of contract, unjust enrichment, and interference with business expectancy.
Before entry of the judgment in favor of the defendants, appellant filed a motion for new trial. The judgment was entered on June 22. Appellant filed his notice of appeal on July 21. When the circuit court did not rule on appellant's motion for new trial within thirty days, he timely filed an amended notice of appeal to include the deemed denial of his motion.
Because appellant's first three points are premised on whether there has been proper substitution of parties following Norma's death, we discuss them together. Appellant's three points are premised on the contention that the circuit court somehow disregarded the provisions of Arkansas Rule of Civil Procedure 25 and allowed the appellees to improperly delay the opening of probate proceedings for Norma in an effort to thwart the substitution of a proper defendant following Norma's death.
Although not stated as such, we believe that appellant's arguments raise the following issues: (1) which party bears the burden of properly reviving the action following the death of a party; (2) whether the lack of proper substitution renders the jury's verdict as to appellant's claims against Norma individually a nullity; (3) who is the proper party to substitute following Norma's death; and (4) whether the circuit court properly dismissed the claims against Norma individually.
"The substitution of a new party to proceed with the prosecution or defense of a claim is the revivor of an action. The death of a party to a legal proceeding, where the cause of action survives, suspends the action as to decedent until someone is substituted for decedent as a party." Deaver v. Faucon Props., Inc. , 367 Ark. 288, 291, 239 S.W.3d 525, 529 (2006) (quoting 1 C.J.S. Abatement and Revival § 155 ). An action cannot be revived unless the cause of action survives. Id. At common law, most actions grounded in contract survived the death of either party, but those in tort did not. See McDonald v. Pettus , 337 Ark. 265, 988 S.W.2d 9 (1999) ; Wilson v. Young , 58 Ark. 593, 25 S.W. 870 (1894) ; Ward v. Blackwood , 41 Ark. 295 (1883). Thus, appellant's individual contract claims against Norma survived her death, subject to the claims' proper revival.
The burden having the action properly revived is on the plaintiff or other party seeking relief from the court. Speer v. Speer , 298 Ark. 294, 766 S.W.2d 927 (1989) ; McDonald v. Petty , 254 Ark. 705, 496 S.W.2d 365 (1973) ; Wooley v. Planter's Cotton Oil Mill, Inc. , 91 Ark. App. 213, 209 S.W.3d 409 (2005). It was appellant's cause of action against Norma; therefore, it was up to him to substitute new defendants in place of Norma if he wanted to continue his action. This brings us to the question of the proper defendant to substitute for Norma.
Arkansas Rule of Civil Procedure 25(a)(1), (2) governs the procedure for obtaining an order of revivor. It provides in pertinent part as follows:
(a) Death. (1) If a party dies and the claim is not thereby extinguished, the Court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party, and such substitution may be ordered without notice or upon such notice as the Court may require. Unless the motion for substitution is made not later than ninety (90) days after the death is suggested upon the record by the service upon the parties of a statement of the fact of death, the action may be dismissed as to the deceased party.
(2) Upon the death of a plaintiff the proper party for substitution shall be his personal representative or, where the claim has passed to his heirs or to his devisees, the heirs or devisees may be substituted for the deceased party. Upon the death of a defendant in an action wherein the claim survives against his personal representative, the the personal representative shall be the proper party for substitution. Except in an action for the recovery of real property only, or for the adjudication of an interest therein, the heirs, devisees or personal representative may be the proper parties for substitution as the Court may determine. Where the deceased party is acting in the capacity as personal representative, his successor shall be the proper party for substitution.
(Emphasis added.)
Rule 25 is clear that in this situation, the personal representative is the proper party to substitute as the defendant for appellant's claims against Norma individually. Under Rule 25, the substitution of a defendant's heirs is appropriate only in actions involving real property, which this case does not. When a plaintiff dies, his or her cause of action passes to the heirs. But unlike the situation in which a plaintiff dies, there is no basis for substituting a deceased defendant's heirs as the proper defendants. If a defendant's heirs are substituted, they would become personally liable for the deceased's action in tort or contract. However, a defendant's liability does not pass to his or her heirs, it passes to his or her estate. Purcelly v. Carter , 45 Ark. 299 (1885).
In his amended complaint filed after the hearing on his motion for revivor, appellant asserted that Norma's will named both Nash Jr. and Glover to act as coadministrators of her estate but that no order appointing a special administrator, an administrator, or a personal representative had been entered by any court. Appellant alleged that Nash Jr. and Glover, individually and as cotrustees and coadministrators of Norma's estate, were the proper defendants and should be appointed and substituted.
Appellant complains that Nash Jr. and Glover waited until after the judgment had been entered in this case before opening probate for Norma's estate. However, appellant could have petitioned to have a special administrator appointed for Norma's estate under various provisions of the probate code. See Nickles v. Wood , 221 Ark. 630, 255 S.W.2d 433 (1953) (pursuant to what is now Ark. Code Ann. § 28-48-103 or pursuant to Ark. Code Ann. § 28-40-107 ). Although appellant appeared to ask that Nash Jr. and Glover be appointed, he chose not to follow through and relied on them to probate their mother's estate. But Norma's personal representative and heirs had no duty to seek appointment. As a result, no order appointing a special administrator or a personal representative was entered before trial.
Likening this situation to that in Koonce v. Mitchell , 341 Ark. 716, 19 S.W.3d 603 (2000), appellant argues that because there was no proper substitution for Norma, the circuit court lacked subject-matter jurisdiction such that the jury's verdict on the contract claim against Norma is a nullity. Appellant's reliance on Koonce is misplaced because that case did not involve the substitution of parties; rather it was a quiet-title action in which the record owner of real property was not made a party or given notice of the proceedings. Instead, issues of proper substitution of parties are generally matters of personal jurisdiction, not subject-matter jurisdiction. See Berryhill v. Synatzske , 2014 Ark. 169, 432 S.W.3d 637 ; Taylor v. MCSA, LLC , 2013 Ark. 430, 430 S.W.3d 113 ; Crenshaw v. Special Adm'r of Estate of Ayers , 2011 Ark. 222, 2011 WL 1896766. The Taylor court concluded that the requirement of substitution is subject to waiver.
We believe that the substitution issue has been waived. Taylor, supra. Appellant continued to seek relief from the court by amending his complaint and proceeding to trial on the complaint as amended. See Speer, supra. In Speer , the parties were divorced by a decree entered in 1985, from which the husband appealed. We affirmed on direct appeal and modified and remanded a child-support issue on cross-appeal. The wife died while that appeal was in process, and her interest was pursued by her father as special administrator. After remand, husband again appealed the circuit court's decision on property rights. Husband argued on appeal that because there was no motion for revivor, all subsequent proceedings after the first appeal were void. After pointing out that the child-support issue was not properly before this court in the first appeal due to the wife's death, the supreme court rejected the revivor argument, stating,
Here, there can be no doubt but that any objection to a failure of revivor had been waived by [husband]. Following the appeal, there were not one but two further hearings concerning matters after remand. Both hearings were made at the request of [husband], and in both instances, it was [husband] seeking relief from the court. It was not until nineteen months after [wife's] death, on the very morning of the second hearing, that [husband] first raised the issue of abatement by filing a motion to that effect. The trial court dismissed the motion.
Speer , 298 Ark. at 300, 766 S.W.2d at 931. Appellant has waived the question of revivor by continuing to amend his complaint and going to trial without a proper party substituted for Norma in her individual capacity.
In his final challenge to the jury's verdict based on substitution, appellant argues that the circuit court erred in dismissing his claims against Norma individually for lack of substitution. However, we need not decide this issue because any error that may have occurred in the dismissal was rendered harmless because those claims were ultimately tried to a jury and a defense verdict returned. There is no explanation of how this happened when the claims had been earlier dismissed. Both sides acknowledge in their briefs that the contract claim was tried to the jury.
Appellant's fourth point argues that the errors asserted in his first three points, when combined with appellees' request for attorney's fees, amounts to an error of law, an abuse of discretion, and a violation of due process. We need not consider this point because the circuit court has not yet ruled on the motion for attorney's fees.
For his fifth point, appellant argues that the court erred in denying him any reasonable discovery. The issue is not preserved for our review because the circuit court never ruled on appellant's second motion to compel and for sanctions. Instead, the court held them in abeyance until the proper parties were substituted. The court also indicated that if appellant was dissatisfied with the discovery, he should bring the discovery issue back to the court's attention for resolution. There is nothing in the record showing that appellant did so. However, it was appellant's burden to obtain a ruling on the issue. When an appellant fails to obtain a ruling below, we do not consider that point on appeal. See Bryant v. Bryant , 2009 Ark. App. 231, at 6, 303 S.W.3d 91, 95. Without a ruling by the circuit court on this issue, there is nothing for us to review; therefore, we do not address the issue. Johnson v. State , 303 Ark. 313, 316, 796 S.W.2d 342, 345 (1990).
Finally, appellant argues that the circuit court erred in not granting his motion for new trial. Under this heading, appellant raises four subpoints: (1) error in the substitution of parties following Norma's death; (2) an irregularity in the proceedings preventing appellant from having a fair trial; (3) trying appellant's contract claim against Norma without a proper substitute and in failing to instruct the jury on the Arkansas Fraudulent Transfers Act, Ark. Code Ann §§ 4-59-201 to -215 (Repl. 2011 & Supp. 2017), amended by Uniform Voidable Transactions Act of 2017, No. 1087, 2017 Ark. Acts 5958; and (4) the verdict was against the preponderance of the evidence. We find no error.
Appellant's first subpoint relies on and incorporates the arguments he made above in his points about substitution. These need not be repeated here.
In his second subpoint, appellant argues that the behavior of Nash Jr. during his testimony upset the decorum of the court and impacted the jury's verdict. Under Arkansas Rule of Civil Procedure 59(a)(1) and (2), a new trial may be granted to all or any of the parties and on all or part of the claim on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party: (1) any irregularity in the proceedings or any order of the court or abuse of discretion by which the party was prevented from having a fair trial and (2) misconduct of the jury or prevailing party.
We have held that a contemporaneous objection is required when a new trial is sought on the basis of an irregularity or misconduct under Rule 59(a)(1) and (2). Thomas John Kennedy of Ark., DDS, PC v. Ausbrooks , 2016 Ark. App. 62, 482 S.W.3d 335.
Here, appellant failed to object on the basis of Nash Jr.'s alleged theatrics and raised the issue for the first time in his motion for new trial. Appellant objected during Nash Jr.'s testimony solely on the basis that opposing counsel was leading the witness and testifying. Later, appellant was questioning Nash Jr. when the witness gave a somewhat long, narrative answer, and appellant asked the court to control the witness, stating "Will the judge control the witness? He can't just go on like that. I'd like to have direct answers to my questions. Do you think you can do that?" Nash Jr. replied, "Did I not answer you?" The court responded, "Let's keep it down. Just ask him a question."
We cannot say that appellant's request was specific enough to alert the circuit court to the problem. It does not specifically call Nash Jr.'s behavior the perceived problem. The request could just as easily be interpreted as asking the court to direct the witness to be more responsive and answer appellant's questions. Moreover, appellant did not ask for an instruction to the jury, a mistrial, or any other relief.
In his third subpoint, appellant contends that he is entitled to a new trial on the basis that the circuit court erred in refusing appellant's proposed jury instruction based on the Arkansas Fraudulent Transfers Act.
Appellant sought to have the jury instructed based on AMI 2426 Implied Covenant of Good Faith and Fair Dealing. The proffered instruction provided:
In addition to the express terms of a contract, the law implies a promise between the parties that they will act in good faith and deal fairly with one another in performing and enforcing their obligations under the contract. Stated another way, the law implies a promise between the parties that they will not do anything to prevent, hinder, or delay the performance of the contract. However, the implied promise does not obligate either party to take any action that is contrary to the express terms of the contract.
You may consider the following alleged acts , hindrances , and delays of Norma Nash only as evidence of a breach of the contract:
1) The alleged mismanagement of the store in Little Rock as to empty shelves and storage space, disorganized and unpredictable closing times and other such conduct discouraging the sale of said store by Plaintiff;
2) The alleged violation of the Arkansas Fraudulent Conveyance Act as to Plaintiff in order to insulate property and funds from Plaintiff's claim by transferring ownership of the property into the Norma F. Nash Living Trust. In determining whether there was a violation of said Act, you may consider\ that a transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation with actual intent to hinder, delay, or defraud any creditor of the debtor. In determining actual intent, consideration may be given, among other factors, as to whether:
(1) the transfer or obligation was to an insider;
(2) the debtor retained possession or control of the property transferred after the transfer;
(3) the transfer or obligation was disclosed or concealed;
(4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit;
(5) the transfer was of substantially all the debtor's assets;
(6) the debtor absconded;
(7) the debtor removed or concealed assets;
(8) the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred;
(9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred;
(I0) the transfer occurred shortly before or shortly after a substantial debt was incurred; and
(11) the debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.
The circuit court gave the first paragraph of the proffered instruction, which did not involve the Arkansas Fraudulent Transfers Act, but declined to give the second longer paragraph, calling it a comment on the evidence. This court will not reverse a circuit court's decision to give or reject an instruction unless the court abused its discretion. Cantrell v. Toyota Motor Corp. , 2018 Ark. App. 335, 553 S.W.3d 157.
Appellant argues that although the circuit court had dismissed the claims against Norma, the case proceeded to trial as a breach-of-contract case instead of an interference-with-contract case and that the court erred in not instructing the jury on the Arkansas Fraudulent Transfers Act. We hold that the circuit court reached the correct result in refusing the second paragraph of appellant's proposed instruction because there was no evidence to support the alleged acts listed in that instruction. A party is entitled to a jury instruction when it is a correct statement of the law and there is some basis in the evidence to support giving the instruction. Garrison v. Hodge , 2018 Ark. App. 556, 565 S.W.3d 107. There were only three mentions of the trust in the abstract. There was no evidence whatsoever concerning the eleven indicators of a fraudulent transfer of property into the trust. A circuit court can properly refuse to give a jury instruction unsupported by the evidence. Holliman v. MFA Mut. Ins. Co. , 289 Ark. 276, 711 S.W.2d 159 (1986) ; Woodruff Elec. Co-op. Corp. v. Daniel , 251 Ark. 468, 472 S.W.2d 919 (1971).
Appellant argues in his last subpoint that the verdict on his breach-of-contract claim was against the preponderance of the evidence. Under Ark. R. Civ. P. 59, an appellant may be granted a new trial if "the verdict ... is clearly contrary to the preponderance of the evidence or is contrary to the law." Ark. R. Civ. P. 59(a)(6). Here, appellant's argument is that the defense that he was paid in cash was not credible. He recognizes that the question is whether the jury's verdict was supported by substantial evidence.
Our supreme court has noted that generally, a defense verdict will always be supported by substantial evidence because the plaintiff has the burden of proof, and the jury is the sole judge of credibility of witnesses and the weight and value of the evidence. Webb v. Bouton , 350 Ark. 254, 262, 85 S.W.3d 885, 889-90 (2002). Appellant cites opposing counsel's stipulation that appellant had performed the work. However, as both appellant and opposing counsel acknowledged, the real issue was whether appellant had been paid for that work and how much he was owed. Moreover, appellant never testified as to the number of hours he spent on the various matters or an appropriate hourly rate from which the jury could calculate the amount due; instead, appellant testified that he was seeking recovery in quantum meruit. He did testify that he was owed a fee of $ 36,000 to be paid from the proceeds from the sale of a warehouse that had not been paid. Appellant testified that most payments were made by check. On cross-examination, he acknowledged that there were times when John Nash, Sr., would give him $ 200-$ 300 in cash but denied that this would have totaled over $ 2,000 over a twenty-three-year period. There was also an exhibit of an $ 18,000 check written by Norma to appellant as payment of appellant's fee from the sale of a convenience store. Nash Jr. testified that appellant had been paid in cash. The jury clearly could have credited Nash Jr.'s testimony that appellant had been paid.
Because appellant's argument is clearly a challenge to the jury's credibility determination, we defer to that determination and hold that the jury's verdict was not against the preponderance of the evidence.
Affirmed.
Gladwin and Brown, JJ., agree.
Appellant filed a motion to certify the case to the supreme court. However, the court denied the motion on April 12, 2018. Appellant had earlier filed a petition for writ of certiorari and writ mandamus with the supreme court in case number CV-17-54. That petition was denied by the supreme court on March 2, 2017.
Nash Jr. and Glover are two of the children of Norma and John Nash, Sr. Susan Nash Lyle and Perry Nash (Perry) are the other two children.
Appellant filed two sets of motions to compel discovery. The first, filed on December 9, 2015, was granted by the circuit court in orders entered on December 14, 2015. The second set of motions was filed on January 13, 2016, and sought to enforce the court's orders from the first set of motions to compel discovery. It is this second set of motions that is at issue in this appeal.
One of the interference-with-a-contract and business-expectancy counts was against Gaylen McClanahan, the former manager of the liquor store. Although McClanahan was named as a defendant in each of the complaints, he was dismissed from the action on a directed verdict before the case was submitted to the jury.
The circuit court never entered a ruling on appellant's motion to set aside the dismissal.
In his "First Amendment to the Amendment and Supplement to the Complaint and Amended Complaint," appellant sought $ 255,000. | [
-16,
104,
-20,
28,
-120,
32,
26,
-118,
114,
67,
103,
81,
-17,
-42,
24,
107,
107,
-3,
117,
104,
-42,
-77,
55,
100,
91,
-77,
-39,
-43,
-92,
-49,
100,
-34,
76,
32,
-26,
-59,
-58,
-62,
-59,
82,
34,
2,
27,
-3,
91,
65,
56,
-70,
20,
7,
37,
-114,
-13,
45,
59,
-54,
108,
108,
93,
-84,
88,
-88,
-104,
-115,
127,
21,
-111,
36,
-102,
11,
88,
10,
-126,
52,
8,
-96,
115,
54,
-78,
116,
107,
57,
9,
98,
114,
32,
21,
-25,
-80,
-88,
22,
-82,
-103,
-89,
-8,
89,
73,
9,
-74,
-100,
122,
8,
-114,
-12,
-10,
-36,
29,
44,
0,
-50,
-42,
-79,
-95,
57,
-100,
26,
-21,
39,
48,
85,
-49,
-32,
85,
71,
119,
-101,
-52,
-42
] |
Wood, J., joins. | [
23,
49,
-35,
-3,
9,
102,
19,
-4,
124,
-47,
71,
123,
-1,
-86,
60,
69,
39,
125,
-44,
30,
-60,
-45,
115,
-15,
-79,
-45,
-13,
-1,
120,
110,
57,
120,
68,
-72,
0,
-103,
-38,
-126,
-51,
28,
14,
69,
43,
-86,
-14,
97,
36,
-91,
29,
10,
117,
86,
-45,
8,
59,
7,
46,
-30,
116,
8,
-110,
-80,
-104,
-106,
-76,
62,
51,
-22,
-4,
-117,
-64,
38,
-112,
-75,
16,
-5,
95,
-10,
2,
-15,
45,
-23,
-119,
-32,
102,
64,
-67,
-81,
0,
-45,
46,
2,
-72,
-94,
-15,
-103,
126,
58,
-83,
39,
-41,
48,
50,
28,
-31,
101,
29,
-32,
-87,
-18,
-10,
17,
-35,
-96,
92,
-101,
-21,
78,
50,
112,
-128,
34,
21,
92,
50,
-43,
-118,
-72
] |
SHAWN A. WOMACK, Associate Justice
Appellant Karen Langston appeals the circuit court order terminating her parental rights. On appeal, she asserts the circuit court erred in denying her court-appointed attorney's request to withdraw after Langston had terminated his services and sought to hire a new attorney. Our court of appeals affirmed the decision of the circuit court. Langston v. State , 2018 Ark. App. 615, 567 S.W.3d 549. Langston petitioned this court for review, which was granted. When we grant a petition for review, we treat the appeal as if it had been originally filed in this court. Holland v. State , 2015 Ark. 341, 471 S.W.3d 179. We affirm the circuit court's order terminating parental rights and vacate the opinion of the court of appeals.
I. Facts
In March 2017, the Arkansas Department of Human Services ("DHS") removed Langston's son, K.L., from her custody, finding that K.L. was at risk of substantial harm due to Langston's use of methamphetamine. The circuit court found that for nearly a year, Langston failed to comply with her case plan and court orders and she had made no progress toward alleviating or mitigating the causes of K.L.'s removal. On April 13, 2018, DHS filed a petition in the Garland County Circuit Court for the termination of Langston's parental rights.
The petition for termination of parental rights was served on Langston on April 20, 2018, and the circuit court convened a termination hearing on May 23rd. Langston did not appear at the termination hearing. Before the hearing began, Langston's attorney informed the court that he had spoken to Langston the day before, and following their conversation, she sent him an email stating he was fired and that she was going to hire a new attorney. He presented the court with an oral motion to withdraw as counsel. There are no oral or written requests in the record from Langston for a continuance or asking that she be allowed a change of attorney.
DHS opposed the motion to withdraw and argued that Langston had been served under Arkansas Rule of Civil Procedure 5 and that she had over a month to fire her attorney and hire a new one. The attorney ad litem remained neutral on the motion. The circuit court denied the motion and Langston's attorney indicated he was prepared to represent her at the hearing. The hearing continued without Langston, and her parental rights were terminated. She appeals the termination order.
II. Standard of Review
This court reviews denials of motions to withdraw for an abuse of discretion. Townsend v. State , 350 Ark. 129, 136, 85 S.W.3d 526, 529 (2002). A court commits an abuse of discretion when it carelessly exercises its discretion without due consideration.
Silkman v. Evangelical Lutheran Good Samaritan Soc'y , 2015 Ark. 422, at 5, 474 S.W.3d 74, 77.
III. Arguments and Analysis
On appeal, Langston argues that the circuit court committed a reversible error by denying her counsel's motion to withdraw. She claims that by denying the motion, the circuit court violated her Sixth Amendment right to counsel of one's choosing. Langston's attorney did not object to the circuit court's ruling on the motion to withdraw, nor did he request a continuance. Instead, he responded that he was prepared to the try the case.
It is well-established that for a circuit court to have committed a reversible error, a timely objection must have been made, so that the circuit court may be given the opportunity to correct its error. See Holcombe v. Marts , 352 Ark. 201, 204, 99 S.W.3d 401, 403 (2003). Even where constitutional issues are presented in a termination of parental rights hearing, these objections will be waived unless made in a timely fashion to the circuit court. See McNutt v. Yates , 2013 Ark. 427, at 6, 430 S.W.3d 91, 96 ; Anderson v. Douglas , 310 Ark. 633, 839 S.W.2d 196 (1992). Because there was no objection by Karen's attorney, the denial of the motion to withdraw is not an issue preserved on appeal.
Furthermore, Langston never raised the argument to the circuit court that her state or federal constitutional rights had been violated. This court has held that when an appellant fails to raise an argument before the circuit court, the appellate court will not consider the argument when raised for the first time on appeal. See Williams v. State , 304 Ark. 279, 283, 801 S.W.2d 296, 299 (1990). Parties are bound by the scope of the arguments presented at the trial level. Id .
Finally, even if we were to consider the merits of Langston's constitutional claims, her argument would still fail. It is the law of this state that parents have a right to counsel for termination proceedings. See Ark. Code Ann. § 9-27-316 (Repl. 2017); Briscoe v. State , 323 Ark. 4, 912 S.W.2d 425 (1996). However, the right to counsel of one's choosing is not absolute. Clements v. State , 306 Ark. 596, 606, 817 S.W.2d 194, 198 (1991). As Langston herself acknowledges, a defendant may not use his or her right to counsel to frustrate the power of the court to conduct an orderly, efficient, and effective administration of justice. Bullock v. State , 353 Ark. 577, 582, 111 S.W.3d 380, 384 (2003). Langston contends that the circuit court's denial of her attorney's motion to withdraw frustrated her opportunity to obtain counsel of her choosing and she was therefore prejudiced. Yet, Langston's firing of her attorney on the eve of her termination hearing-with no arrangements made for substitute counsel-plainly frustrated the court's power to conduct an orderly and efficient proceeding.
In support of her argument, Langston cites Arroyo v. State , 2013 Ark. 244, 428 S.W.3d 464, a postconviction case. In Arroyo , the defendant, on the eve of trial, requested permission to hire a new attorney and therefore would need a continuance. Id. at 4, 428 S.W.3d at 466. This court held that in denying Arroyo's request, that the circuit court failed to do any balancing test when considering the request to continue the case to have new counsel substituted to represent Arroyo. Id. at 7-8, 428 S.W.3d at 470. There exists, however, several key distinctions between Arroyo and the present case. First, Arroyo had already obtained substitute counsel when the motion to withdraw was made, whereas Langston had made no such effort. Additionally, Langston did not appear at the termination hearing; she did not argue to the circuit court that she had a right to counsel of her choosing or that her state or federal constitutional rights had been violated; she filed no written motion with the court nor did her attorney request a continuance on her behalf; and she filed no post-hearing motions seeking relief from judgment.
Langston also argues she suffered from ineffective assistance of counsel at her termination hearing. This court has held that parents have a right to effective counsel in parental-termination cases. Jones v. Ark. Dep't of Human Servs. , 361 Ark. 164, 191, 205 S.W.3d 778, 794 (2005). The basis of Langston's ineffective assistance of counsel claim is that her attorney did not inform the court she was in Tennessee at a rehabilitation center , did not ask whether DHS had attempted to make arrangements for her transportation to the hearing, and did not present any evidence to the court that K.L.'s grandmother was a possible placement home for K.L. This court will not consider a claim of ineffective counsel on appeal if the issue was not first raised to the circuit court. See Jones , 361 Ark. at 191, 205 S.W.3d at 794. Because Langston never presented her complaints regarding her attorney's performance or trial strategy to the circuit court, these complaints are not preserved for our review.
The underlying premise of Langston's constitutional claim is that the circuit court's denial of her attorney's motion to withdraw was, in effect, a denial for a motion for continuance so that she may obtain new counsel. In addition to Langston's concession that her attorney made no such request at the hearing, there remains the fact that Langston had over a month between the time she was served notice of the termination hearing and the hearing itself to either request a continuance or make arrangements to obtain new counsel.
Affirmed; court of appeals opinion vacated.
Baker, J., concurs without opinion.
Hart, J., dissents.
Josephine Linker Hart, Justice, dissenting.
The Supreme Court of the United States has recognized that a parent has a fundamental constitutional right to parent his or her children without undue government interference. Troxel v. Granville , 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). I note further that the exact phrase "termination of parental rights is an extreme remedy and in derogation of the natural rights of the parent," or a very close equivalent, has appeared in at least 272 Arkansas appellate-court opinions in which termination of parental rights has been reviewed. Few propositions are more firmly established by the common law of this state. Ms. Langston's right to counsel in all dependency-neglect proceedings is guaranteed by statute. Ark. Code Ann. § 9-27-316 (Supp. 2017). Accordingly, the right to counsel is a fundamental component of due process in proceedings in which the State seeks to terminate a parent's right to parent his or her child. Yet today, the majority has affirmed an order terminating the parental rights of a parent who was not present at the hearing and was "represented" by an attorney she had fired.
The majority glosses over Ms. Langston's absence, although the record indicates that she was unable to attend because she was in court-ordered drug rehab in the state of Tennessee. Amazingly, the majority uses her absence to invoke procedural bars to dispose of her rather compelling arguments. In doing so, the majority has corrupted the contemporaneous-objection rule. Our preservation jurisprudence specifies only that an objection or argument be made at the first opportunity. E.g. , Vance v. State , 2011 Ark. 243, 383 S.W.3d 325. Never mind the fact that Ms. Langston was physically in another state, Ms. Langston was unable to make the arguments that she raises in her appellate brief because the circuit court refused to grant her desire to discharge her attorney. As a consequence of her being "represented" by counsel, the circuit court would not entertain a pro se motion. See Shields v. QHG of Springdale, Inc. , 2009 Ark. 88, 302 S.W.3d 598. This "representation" persisted during the time for filing post-trial motions.
While acknowledging in dicta that in Jones v. Arkansas Department of Human Services , 361 Ark. 164, 190, 205 S.W.3d 778, 794 (2005), this court has recognized that a parent has a right to "effective counsel," the majority nonetheless found no reversible error when the circuit court decided that the attorney Ms. Langston had fired would "represent" her in the termination hearing. This so-called representation consisted of calling no witnesses, not even making arrangements for Ms. Langston to attend the hearing, and engaging in only brief, perfunctory cross-examination of ADHS's witnesses. It is noteworthy that this attorney was apparently the same appointed counsel that inexplicably failed to pursue relative placement of the minor child with Ms. Langston's mother. It is small wonder that ADHS opposed granting this "advocate's" motion to withdraw. It is obvious to me that Ms. Langston did not receive due process, only process.
I respectfully dissent.
Langston entered an outpatient drug rehabilitation program on April 12, 2018. | [
16,
-24,
-12,
60,
42,
-31,
82,
30,
66,
-93,
111,
115,
-89,
-94,
28,
121,
-54,
47,
113,
105,
-63,
-73,
81,
96,
116,
-13,
56,
-41,
-77,
95,
-28,
-97,
92,
112,
-54,
-59,
70,
-64,
-17,
16,
-126,
1,
-117,
109,
89,
-57,
48,
33,
30,
15,
53,
-98,
-77,
46,
25,
-54,
108,
78,
89,
-67,
88,
-70,
-117,
7,
-33,
20,
-79,
36,
-70,
-123,
112,
63,
-120,
48,
1,
-8,
115,
-74,
-118,
52,
67,
-39,
41,
112,
-26,
-128,
120,
-25,
-72,
-120,
78,
46,
-115,
-90,
-38,
57,
75,
13,
-106,
-80,
109,
22,
15,
-2,
107,
-49,
106,
108,
0,
-113,
20,
-127,
4,
9,
20,
27,
-29,
69,
80,
117,
-57,
-26,
84,
-61,
51,
-101,
-50,
-14
] |
RAYMOND R. ABRAMSON, Judge
Appellant Phyllis Haley filed this one-brief appeal to challenge the amended divorce decree entered in her divorce from Kerry Haley. On appeal, Phyllis argues that the circuit court committed numerous errors meriting reversal. Specifically, she disputes the circuit court's findings related to the child-support award, the property division, the adjudication of a personal-injury claim she made against Kerry, and the refusal to award her attorney's fees. We affirm on all points.
I. Background
Phyllis and Kerry married in September 1992. During their nearly twenty-four-year marriage, they had two daughters. Phyllis and Kerry also amassed a significant amount of both real and personal property, which included four marital rental properties, nine rental properties owned exclusively by Phyllis as her nonmarital property, and a business Kerry began during the marriage-AnT Auto.
Phyllis and Kerry separated on June 8, 2016, and Kerry filed a complaint for divorce based on general indignities the next day. Phyllis answered Kerry's complaint and counterclaimed for divorce based on general indignities. At the time of the filing of the complaint and counterclaim, the younger daughter was a minor; thus, issues relating to her custody as well as child support required adjudication.
The circuit court held a temporary hearing in October 2016. At the opening of the hearing, the parties announced that they had reached an agreement on the majority of the temporary issues. Shortly thereafter, a temporary order was entered that memorialized the parties' agreement. Significantly, this order awarded Phyllis custody of the minor child and required Kerry to make monthly child-support payments of $ 1217 beginning on November 5, 2016. The temporary order also provided that the parties would split the minor child's school tuition and other school-related expenses. Phyllis was awarded temporary possession of the marital residence, and the parties were ordered to equally divide the mortgage payment on the residence. With regard to the rental properties, the circuit court ordered that Kerry would "continue to maintain, be responsible for any expense, and collect rent" for the four marital rental properties and that Phyllis would "maintain, be responsible for any expenses, and collect rental for her nonmarital rental properties." Before the parties' separation, Kerry had managed both the marital and nonmarital rental properties.
Following the entry of the temporary order, Phyllis filed a motion to modify child support in February 2017, in which she sought retroactive child support from the date that Kerry filed his complaint for divorce-essentially, she requested that the circuit court award her support for the months of June through October 2016. Then in May 2017, Phyllis filed an amended counterclaim for divorce in which she alleged both general indignities and physical abuse as grounds for divorce. She also included in the amended counterclaim a personal-injury claim against Kerry, alleging that Kerry physically and emotionally abused her.
The circuit court held a final divorce hearing on June 8 and July 12, 2017. The parties stipulated that grounds for divorce were not contested and that Phyllis should be granted a divorce on her counterclaim. Kerry also consented to Phyllis's having custody of their minor child. The issues of Kerry's child-support obligation and division of the parties' property were sharply disputed. At the conclusion of the second day of the hearing, the circuit court took the matter under advisement and later telephoned the parties' counsel to announce its ruling.
The circuit court's ruling was reduced to writing, and a divorce decree was entered on September 25, 2017. One day later, the circuit court entered an amended divorce decree, which was substantially the same as the original divorce decree. Phyllis timely appealed from the amended divorce decree.
On appeal, Phyllis raises eight arguments in support of reversal. Specifically, she contends the circuit court erred by (1) denying her request for retroactive child support; (2) allowing Kerry to retain the income collected from the four marital rental properties from July 2012 through July 2016; (3) allowing Kerry to retain the income collected from her nine nonmarital properties from July 2012 to July 2016; (4) denying her tort claim against Kerry; (5) denying her any portion of Kerry's 2016 bonus; (6) determining that Kerry had sold one-half of his interest in AnT Auto to his father; (7) finding that the 2015 tax refund was not a marital asset; and (8) refusing to award her a reasonable attorney's fee.
The record on appeal was lodged with our court in March 2018. Shortly thereafter, Kerry died, and his sister Kelly Elkins was appointed as personal representative of his estate. In July 2018, Phyllis filed a motion for substitution of parties with our court, seeking to have Kelly Elkins substituted for Kerry. Our court granted her motion. As previously mentioned, the appellee did not file a responsive brief.
II. Standard of Review
We review divorce cases de novo on the record. Farrell v. Farrell , 365 Ark. 465, 231 S.W.3d 619 (2006). We will not reverse a circuit court's finding of fact in a divorce case unless it is clearly erroneous. McKay v. McKay , 340 Ark. 171, 8 S.W.3d 525 (2000). Notwithstanding that general premise, we review certain issues that arise in the context of this appeal such as attorney's fees and the award of retroactive child support using an abuse-of-discretion standard. See Heflin v. Bell , 52 Ark. App. 201, 916 S.W.2d 769 (1996) ; Tiner v. Tiner , 2012 Ark. App. 483, 422 S.W.3d 178.
III. Retroactive Child Support
We begin by analyzing whether the circuit court erred by refusing to award Phyllis retroactive child support. Phyllis asked the circuit court to award her retroactive child support from June through October 2016, which represents the time from when Kerry filed his complaint for divorce until the circuit court imposed a temporary child-support obligation. The circuit court denied Phyllis's request.
In support of reversal, Phyllis maintains that the circuit court allowed Kerry to shirk his responsibilities to his minor child and that the disparity in the parties' relative financial positions necessitated the award of retroactive support. As we evaluate this issue, we acknowledge that retroactive child support is not mandatory, but a circuit court may order it when the circumstances warrant it because the commencement date of an award of child support is a matter within the discretion of the circuit court. Pardon v. Pardon , 30 Ark. App. 91, 782 S.W.2d 379 (1990).
The circuit court did not specify its reasoning for denying Phyllis's retroactive-support request. However, the record contains ample evidence to justify the circuit court's refusal to award it. We note that the temporary order to which the parties agreed required Kerry to pay $ 1217 a month in child support. In the final decree, after discovery had been completed and a trial had been held, Kerry was ordered to pay significantly less in child support-$ 435.86 biweekly. In addition, the temporary order also obligated Kerry to pay one-half of the minor child's tuition and school-related expenses. Moreover, it required Kerry to service a significant portion of the parties' debt on a temporary basis in that it ordered him to pay one-half of the mortgage on the marital residence even though Phyllis was given possession of the property. Accordingly, it was within the circuit court's discretion to decline to award retroactive child support.
IV. Income from Rental Properties
In Phyllis's second and third points on appeal, she challenges the circuit court's refusal to require Kerry to pay her for a portion of the rental proceeds collected from both their marital and her nonmarital rental properties from July 2012 to July 2016. Because these points on appeal pertain to property division, our review is limited to whether the circuit court's findings were clearly erroneous. McKay , supra .
A. Marital Rental Properties
The evidence reflected that Phyllis and Kerry owned four marital rental properties, which Kerry managed. The vast majority of the disputed funds were collected before the parties' separation, which occurred in June 2016. Moreover, the funds were deposited into a joint marital bank account. Nevertheless, Phyllis claimed that Kerry did not share the rental proceeds with her. Thus, she argued to the circuit court that she was entitled to receive one-half of the proceeds he collected from July 2012 to July 2016. The circuit court disagreed and found that Kerry was not obligated to pay Phyllis any of the rental income collected on marital properties during that time. Phyllis seeks reversal of this finding.
We give due deference to the circuit court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Troutman v. Troutman , 2017 Ark. 139, 516 S.W.3d 733. Although we acknowledge Phyllis's testimony that Kerry did not share the rental proceeds with her, she admitted that she was not involved in their financial matters and knew very little about their finances. In fact, her sister, Tanya Jewell, who provided much of the testimony about the parties' finances, testified that Phyllis did not know how to balance a checkbook. Moreover, Phyllis did not present evidence that she was denied access to these marital funds or suffered financially in any manner on the basis of Kerry's control of the rental proceeds. Given this evidence, we cannot say that the circuit court clearly erred by finding that Phyllis was not entitled to one-half of the rental proceeds collected on marital property from July 2012 to July 2016.
B. Phyllis's Nonmarital Rental Properties
Turning to Phyllis's nonmarital rental properties, the evidence demonstrated that Kerry managed these properties from July 2012 through July 2016, and that the rental proceeds were deposited into a joint bank account. A total of $ 164,841 was deposited into a joint bank account during that time, and Kerry withdrew $ 89,602 from the account and Phyllis withdrew $ 2835. Importantly, neither party accounted for the money that had been withdrawn from the account. Phyllis asked the circuit court to award her one-half of the difference between their withdrawals. The circuit court denied her request.
Once again, our review is limited to whether the circuit court clearly erred, and we hold that it did not. As with the marital rental properties, the funds were collected primarily during the parties' marriage and placed into a joint bank account. Our law presumes that property placed in both spouses' names is marital property. Ark. Code Ann. § 9-12-315(a) (Repl. 2015). Phyllis was not involved in the parties' finances or management of the rental properties, and she produced no evidence that only Kerry, rather than the parties jointly, benefited from these withdrawals.
V. The Tort Claim
In her amended counterclaim for divorce, Phyllis included a claim for damages based on personal injuries she alleged Kerry inflicted on her. The circuit court denied her personal-injury claim. Because this is an appeal from a bench trial, our review of this finding is limited to whether it was clearly erroneous. Pianalto v. Pianalto , 2010 Ark. App. 80, 374 S.W.3d 67.
Phyllis claimed Kerry intentionally injured her, and she sought relief on this basis. Thus, she was pursuing a cause of action for the tort of battery, although this specific claim was not clearly articulated. A successful claim for battery would require Phyllis to prove that Kerry intended to cause harmful or offensive contact with her or acted with the intent to create the apprehension of some harmful or offensive contact and that this contact resulted in and caused damages. See AMI Civ. 418 (2018).
As we undertake our review of this issue, we are reminded that it was Phyllis's burden to prove battery. The parties presented conflicting reports on Phyllis's alleged injuries. Phyllis testified that Kerry was violent and would push her and place his hands around her neck in anger. By contrast, Kerry testified that the fighting was mutual, that Phyllis drank to excess to the point of belligerence, and that during their altercations, he never intentionally hurt her but that he had restrained and possibly bruised her. Other witnesses, including Tanya Jewell and Phyllis's friend Tiffany Thompson spoke of seeing bruises on Phyllis but presented no personal knowledge relating to the origins of her injuries. Phyllis and Kerry's daughters each testified that they observed their parents engage in physical fights, but neither would identify an aggressor in those altercations.
Based on the evidence presented at trial, we hold that it was not clearly erroneous for the circuit court to deny Phyllis's tort claim. Significantly, only the parties offered any specific evidence of injuries or the absence thereof, and the parties' testimony directly conflicted. Moreover, Phyllis failed to present any evidence of damages she sustained from Kerry's alleged battery.
VI. Kerry's 2016 Bonus
Kerry earned a $ 28,000 bonus in December 2016, which was during the parties' marriage but after their separation. The circuit court did not divide the bonus, and Phyllis seeks reversal on this basis.
As a general matter, any bonus that accrues during the marriage is marital property subject to division. Wilson v. Wilson , 294 Ark. 194, 741 S.W.2d 640 (1987). However, the circuit court did not specifically rule on the issue of Kerry's 2016 bonus. Our caselaw is clear that Phyllis had the burden of obtaining a ruling on this issue to preserve it for appeal. Sloop v. Kiker , 2016 Ark. App. 125, 484 S.W.3d 696. In the absence of a ruling, our court will not reach an issue, nor will we presume a ruling from the circuit court's silence. Id. For this reason, we affirm on this point without reaching the merits of Phyllis's argument.
VII. AnT Auto
Kerry's ownership interest in AnT Auto was another source of dispute at trial. AnT Auto is a used-car lot that Kerry opened during the marriage in early 2016. In the initial February 2016 application to become a used-motor-vehicle dealer, Kerry listed himself as the sole owner of AnT Auto. Then, on March 31, 2016, Kerry purported to sell 100 percent of his interest in AnT Auto to his father, Floyd, for $ 100. In January 2017, AnT Auto's used-motor-vehicle license was renewed, and both he and Floyd were listed as owners of AnT Auto. Notably, the insurance documents included in the renewal application identified only Kerry as a named insured.
At trial, Kerry sought to avoid any distribution of AnT Auto based on his alleged sale of the business to Floyd. Alternatively, Phyllis requested that the circuit court distribute one-half of the business to each of them based on Kerry's sole ownership of the business. Instead, the circuit court found that Kerry and his father each shared a one-half interest in AnT Auto and awarded Phyllis one-half of Kerry's one-half interest in it.
On appeal, Phyllis seeks reversal, claiming that it was clear error to find that Kerry had any interest in AnT Auto other than 100 percent. She maintains that one could easily conclude that Kerry executed the sale document and the other documents listing him and Floyd as co-owners to create the impression that he had disgorged himself of assets. Irrespective of her argument, it is the circuit court's duty to act as the fact-finder and our review is limited to whether those findings were clearly erroneous. McKay , supra .
Here, there is ample evidence to support the circuit court's findings. After the alleged sale of AnT Auto, a used-motor-vehicle dealer-renewal application was filed in March 2017, and it listed both Kerry and Floyd as owners. Although the insurance documents attached to the renewal application list Kerry as the named insured, this is not dispositive of the ownership issue. All other documents in the renewal application list Kerry and Floyd as co-owners. Accordingly, we hold that the circuit court did not clearly err in its distribution of AnT Auto.
VIII. The 2015 Tax Refund
Phyllis also argues that the circuit court erred by finding that the parties' 2015 joint tax refund was not a marital asset subject to division. We begin by noting that in the heading of Phyllis's brief, she indicates that she seeks reversal of the circuit court's decision to refuse to divide the proceeds of the 2015 tax refund; however, Phyllis argues in the body of her brief that it was error to refuse to divide the proceeds of the parties' 2016 tax refund.
We do not reach the merits of Phyllis's argument regardless of which year's tax refund Phyllis challenges. The circuit court did not specifically rule on the disposition of either the parties' 2015 or 2016 tax refunds, and Phyllis had the burden of obtaining a ruling on this issue to preserve it for appeal. Sloop v. Kiker , 2016 Ark. App. 125, 484 S.W.3d 696. Accordingly, we summarily dispose of this issue and affirm the ruling of the circuit court.
IX. Attorney's Fees
Finally, Phyllis challenges the circuit court's refusal to award her attorney's fees. The award of attorney's fees in a domestic-relations case is a matter within the circuit court's discretion, and there is no fixed formula for determining what constitutes a reasonable amount. Webb v. Webb , 2014 Ark. App. 697, 450 S.W.3d 265. Because the circuit court presides over the case and gains familiarity with it as well as the extent and quality of the services rendered by the attorney, it has a superior opportunity to assess the critical factors, and we will not set aside an award of attorney's fees absent an abuse of discretion. Tiner v. Tiner , 2012 Ark. App. 483, 422 S.W.3d 178.
As a preliminary matter, Phyllis argues that we must, at a minimum, remand this issue to the circuit court because it did not provide its reasoning for refusing to award attorney's fees. We disagree. There is no requirement for the circuit court to make specific findings when it denies a request for fees.
Next, Phyllis contends the decision requiring each party to bear his or her own fees should be reversed because the equities require that she receive a reasonable attorney's-fee award. Specifically, she emphasizes that she has less disposable income than Kerry and that Kerry controlled their finances-including her nonmarital assets-for many years.
On issues of attorney's fees, we give deference to the circuit court's decision. Phyllis has failed to demonstrate that the circuit court abused its discretion. We acknowledge the contentious nature of the proceedings before the circuit court. Additionally, we note that the evidence demonstrated that Phyllis owned timberland as well as nine nonmarital rental houses. Phyllis admitted that since taking over the management of her nonmarital rental properties, she has been netting between $ 3000 and $ 3500 a month, which is significantly more than the $ 750 biweekly income she reported on her affidavit of financial means. Accordingly, we hold that the circuit court was within its discretion to refuse to award Phyllis attorney's fees.
X. Conclusion
Having considered each of the arguments presented by Phyllis, we hold that she has failed to demonstrate any reversible error and affirm the circuit court's amended divorce decree.
Affirmed.
Virden and Vaught, JJ., agree.
We note that Phyllis's brief fails to strictly adhere to our rules. For example, it deviates from Arkansas Supreme Court Rule 4-2(a)(5)(B), which prohibits the use of the question-and-answer format except for "extraordinary situations where a short exchange cannot be converted to a first-person narrative without losing important meaning." Despite this deficiency, we reach the merits of her appeal but caution counsel to be mindful of our rules in the future. | [
-16,
-4,
-3,
-17,
-86,
34,
11,
-84,
96,
-125,
103,
-45,
-69,
-30,
80,
107,
-14,
107,
96,
105,
-41,
-93,
86,
96,
-13,
-77,
-79,
-37,
-80,
109,
-11,
118,
76,
50,
-94,
-27,
70,
-126,
-59,
16,
2,
-126,
-69,
108,
-40,
-58,
48,
-21,
16,
15,
49,
-122,
-78,
45,
61,
98,
76,
110,
-35,
120,
-48,
-16,
-122,
15,
79,
7,
-79,
52,
-106,
-92,
74,
106,
-116,
56,
0,
-23,
51,
-74,
-106,
116,
68,
-69,
1,
96,
99,
18,
109,
-19,
-36,
-104,
78,
31,
-81,
-90,
-111,
17,
9,
68,
-74,
-106,
116,
22,
111,
86,
110,
-108,
61,
100,
46,
-113,
-106,
-111,
-115,
-40,
-100,
2,
-17,
97,
16,
81,
-49,
-78,
92,
6,
57,
-101,
-17,
-78
] |
N. MARK KLAPPENBACH, Judge
This appeal returns to us after we ordered supplementation of the record and the addendum. Pitchford v. City of Earle , 2019 Ark. App. 135, 2019 WL 947386. The deficiencies we identified have been corrected, and we now consider the merits of the appeal.
Appellant Frederick Lee Pitchford, pro se, appeals the April 16, 2018 orders of the Crittenden County Circuit Court that rendered judgment in favor of the City of Earle on Pitchford's numerous claims of wrongdoing by the city, its officials, and certain employees and that denied Pitchford's posttrial motion. Appellant presents thirteen points on appeal. We affirm.
Between January and December 2016, Pitchford filed an original complaint and three amended complaints against the city. Pitchford purported to represent himself and "Other interested citizens ('taxpayers')" of Earle in his various complaints of wrongdoing in the procedures used to operate the city and of alleged improper use of taxpayer funds. In the January 2016 filing titled "Complaint Injunction of Budget," Pitchford wanted the city's 2016 budget to be frozen because he believed it had been created under an improper and fraudulent process in the December 2015 budget meeting. He also accused the city clerk of violating the Freedom of Information Act (FOIA) by failing to provide him a copy of the adding-machine tape and notes she took during that budget meeting. In the original complaint, Pitchford asked for an injunction against this alleged illegal exaction and misapplication of taxpayer funds.
Pitchford filed amended complaints, one in May 2016 and two in December 2016, to add numerous allegations, summarized as follows: (1) that city councilman Luckett had been appointed city inspector, holding two offices in violation of statute, and that the monies paid to Luckett should be returned; (2) that the city mechanic and police chief had been wrongfully terminated; (3) that a city vehicle had been observed in the parking lot of the dog-racing track, which was not city business, constituting an illegal exaction; (4) that the interim mayor should be enjoined and excluded from participating in the city council's consideration of the 2016 budget; (5) that he had lodged legitimate criticisms of city attorney Loftin with the city council, such that Loftin's contract should have been terminated; (6) that city councilman Luckett wrongfully failed to send an inspection ticket to Entergy so that Pitchford's electricity would be turned on at his 1609 Carol Cloar Street property, constituting fraud, dishonesty, and denial of due process; and (7) that police sergeant Al Elberson had been improperly compensated for more hours than he was authorized to work, constituting an illegal exaction.
The matter was heard at a bench trial in December 2017. Pitchford called nine witnesses to support his various contentions. At the conclusion of the bench trial, the circuit court took the matter under advisement. Approximately ten days later, Pitchford filed a document containing four requests: (1) seeking to hold the mayor in contempt for failing to attend the trial; (2) seeking a hearing to determine whether councilman Luckett and the city clerk had committed perjury during the trial; (3) seeking reconsideration of his desire to call city attorney Loftin as a witness, which the circuit court had denied during trial; and (4) seeking to have the circuit court consider additional evidence related to Sgt. Elberson's work hours and pay. The circuit court entered two orders in April 2018 denying and dismissing all of Pitchford's requests. This appeal followed.
In bench trials, the standard of review on appeal is not whether there is substantial evidence to support the finding of the court but whether the court's findings were clearly erroneous or clearly against the preponderance of the evidence. Farm Credit Midsouth, PCA v. Reece Contracting, Inc. , 359 Ark. 267, 271, 196 S.W.3d 488, 490 (2004). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Id. Disputed facts and determinations of credibility are within the province of the fact-finder. Id.
In his first point on appeal, Pitchford argues that the circuit court erred by not requiring the repayment of taxpayer funds remitted to councilman Luckett for pay as "De Facto City inspector" because Luckett, by statute, could not hold two offices and be paid for both. The circuit court agreed that Luckett at some point violated the statute precluding a person from holding two city offices but noted that trial testimony showed that Luckett had helped the city inspector for about two years at no charge. The circuit court stated, however, that Pitchford offered no evidence to support what, if any, amount was paid to Luckett for city-inspector services. The circuit court did not clearly err on this point because Pitchford presented no proof of misappropriation of taxpayer funds.
In points two and three on appeal, Pitchford asserts that the city attorney and the city council "failed to do their specifically enjoined duties, under different authority" when the city terminated the employment of the city's mechanic (Lee Johnson) and police chief (Tyrone Smith). The circuit court found, and we agree, that Pitchford presented no evidence of damages to him or other taxpayers flowing from the termination of these two men and that Pitchford has no standing to generally assert procedural irregularities concerning the alleged wrongful termination of Mr. Johnson and Mr. Smith. The general test for standing is whether the plaintiff has suffered an adverse impact. Summitt Mall Co., LLC v. Lemond , 355 Ark. 190, 132 S.W.3d 725 (2003). Pitchford's generalized complaints do not equate to an adverse impact on Pitchford or other citizens. Pitchford, therefore, fails to demonstrate error in the circuit court's findings on these allegations.
In point four on appeal, Pitchford contends that the circuit court erred by not finding an improper use of taxpayer funds due to the mayor's driving a city vehicle to Southland Park for noncity business. The mayor was not in attendance at the trial and, consequently, was not called as a witness. The circuit court found that Pitchford failed to present any evidence at trial to support this claim and failed to present evidence of monetary damage. We agree that in the absence of any evidence of monetary damage, the circuit court did not err in rejecting this claim by Pitchford.
In point five on appeal, Pitchford argues that the circuit court erred by not finding that the city improperly allowed the interim mayor to be present and participate in the discussions about the 2016 budget. The circuit court ruled that Pitchford was asking for an injunction to stop the interim mayor's participation but that the issue was moot, the meeting having occurred in December 2015. As a general rule, the appellate courts of this state will not review issues that are moot. Cotten v. Fooks , 346 Ark. 130, 55 S.W.3d 290 (2001). To do so would be to render advisory opinions, which our appellate courts will not do. Id. A case becomes moot when any judgment rendered would have no practical legal effect upon a then existing legal controversy. Id. We agree with the circuit court that the interim mayor's participation in the budget meeting at the end of 2015 had come and gone, and no ruling would have had any effect, so this issue was moot. See also Stromwall v. Van Hoose , 371 Ark. 267, 265 S.W.3d 93 (2007).
In point six on appeal, Pitchford argues that the circuit court erred by not finding that the city clerk's destruction of the adding-machine tape amounted to a violation of the FOIA. Our FOIA statutes define what public records are, and the definition includes those records that are "required by law to be kept or otherwise kept." Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017). The circuit court referred to the city clerk's testimony that she generated the tape during the December 22, 2015 budget meeting, but she threw it away, and Pitchford did not request it until December 28. The city clerk testified that the relevant numbers had been recorded on other budget-meeting documents, the adding-machine tape was not meaningful nor was it something the city ever kept, and she gave Pitchford everything she had when he asked for it. The circuit court concluded that Pitchford had failed to present any legal authority to demonstrate that the city clerk was required to keep "every scrap of paper," and he failed to show how this was a violation of any FOIA law. We defer to any credibility determinations made by the circuit court, Pitchford failed to prove that the adding-machine tape was required to be kept, and thus Pitchford has failed to demonstrate clear error on this point.
In point seven on appeal, Pitchford asserts that the circuit court clearly erred in not finding that the city should have terminated the city attorney's contract for his various failures to advise the city on proper procedure. At trial, though, Pitchford failed to present any evidence to support his claim of "fraudulent representation" or "non-feasance in office" by the city attorney in his professional advice to the city. Pitchford had asked the circuit court for permission to call the city attorney, Mr. Loftin, to the stand, but the circuit court denied that request because Mr. Loftin was representing the city at the bench trial. The circuit court also found that Pitchford had failed to state a cause of action for malpractice through his generalized complaints about Mr. Loftin and had failed to present any evidence to support his assertions; therefore, it denied Pitchford relief on that request. We agree with the circuit court that there is a complete absence of evidence to support Pitchford's claims of dereliction of duty by Mr. Loftin toward the city. On this point, in the absence of any evidence to support his claims, the circuit court did not clearly err.
In point eight on appeal, Pitchford argues that the circuit court erred by not finding that councilman Luckett failed to fax an electrical-inspection ticket to Entergy so that electrical service could start at 1609 Carol Cloar Street. Pitchford claimed that this constituted fraud, dishonesty, and denial of due process. Luckett testified that there was no existing address at 1609 but that the closest address was 1601, so that is where the fax directed Entergy to start service. The circuit court found that this demonstrated, at worst, an honest mistake due to confusion. The circuit court did not clearly err in not finding "fraud, dishonesty, and denial of due process," so we hold that Pitchford fails to demonstrate reversible error on this point.
Points nine and thirteen on appeal both concern the alleged wrongfully paid overtime to Sgt. Elberson. Pitchford claims that Elberson was not permitted to work more than twenty hours per week but was paid $ 3,497.50 for overtime, which should be returned to the city coffers. The extent of Elberson's testimony at trial was that he was a part-time employee permitted to work twenty hours per week. The city clerk testified that she had asked the proper authorities whether and how Elberson should be paid for "comp time" and that she followed that protocol in line with the instructions she was given. No hours or pay figures were submitted into evidence in any form at trial. The circuit court found in the judgment on appeal that Pitchford had failed to present any evidence at trial to substantiate the overtime hours allegedly paid to Elberson, rendering this claim to lack evidence. With no evidence to support his claim, Pitchford cannot demonstrate reversible error in the circuit court's order denying him any relief on this claim.
In his posttrial motion filed about a week after the trial, Pitchford asked the circuit court to consider the attached pay records for Elberson that evidenced 349.75 hours of overtime paid at ten dollars an hour. In denying the posttrial motion, the circuit court noted that Pitchford had ample time to prepare for trial and to present the evidence he desired at trial, but Pitchford's request to submit additional evidence came too late. Pitchford does not present any argument or authority on appeal that the circuit court's denial of accepting this additional evidence tendered after trial was in error. We will not consider arguments that are unsupported by citation to legal authority or convincing argument. Stromwall , supra . Pitchford has thus failed to demonstrate any reversible error in the circuit court's rejection of his posttrial motion on that issue.
Pitchford argues points ten and eleven together, which concern his posttrial requests seeking to hold the mayor in contempt for failing to attend the trial and seeking a hearing to determine whether councilman Luckett and the city clerk had committed perjury during the trial. The circuit court rejected the contempt request on the basis that the mayor was not properly subpoenaed to attend trial, a ruling not contested on appeal. The circuit court rejected the request for a hearing to determine whether Luckett and Connor had committed perjury on the basis that this was a factually unsupported allegation and that those witnesses were subjected to examination at trial to determine the truthfulness of their testimonies. Pitchford does not present compelling argument or applicable legal authority to support that the circuit court erred in either ruling. We do not consider assertions of error that are unsupported by convincing legal authority or argument, unless it is apparent without further research that the argument is well taken. See Louisiana v. Joint Pipeline Grp. , 2010 Ark. 374, 373 S.W.3d 292 ; Hanks v. Sneed , 366 Ark. 371, 235 S.W.3d 883 (2006). Pitchford presents authority for the general proposition that a citizen has a constitutional right to sue to protect his and other citizens' rights against enforcement of illegal exactions by a governmental entity. See Samples v. Grady , 207 Ark. 724, 182 S.W.2d 875 (1944). This general proposition does not address the specific rulings regarding contempt and perjury.
In point twelve on appeal, Pitchford asserts that the circuit court erred in denying his request at trial to call city attorney Loftin as a witness because Loftin was a named defendant in this lawsuit. The circuit court refused to permit Loftin to be called as a witness because he was the attorney of record for the city at this bench trial and because Pitchford had failed to assert a cognizable cause of action against the city for not terminating Loftin's contract. Pitchford points to documentation that he attached to one of his amended complaints, specifically a letter he wrote to the city council and some disciplinary documentation unrelated to Loftin's representation of the city, none of which was submitted as evidence at trial. Given that we are upholding point seven on appeal, this renders discussion of point twelve moot.
For the foregoing reasons, we affirm the circuit court's judgment in favor of the city and the order denying Pitchford's posttrial motion.
Affirmed.
Gruber, C.J., and Murphy, J., agree.
Appellees are the City of Earle and various city officials. For simplicity's sake, we refer to the appellees collectively as the city.
Pitchford attached numerous documents as exhibits to his filings before trial. At trial, however, Pitchford did not testify as a witness, nor did he submit any documentary proof into evidence. The witnesses called by Pitchford were Cynthia Connor (city clerk), Lawanda Powell (deputy city clerk), Stacy Abram (Pitchford's electrician), Lee Johnson (former city mechanic), Robert Malone (city councilman), Bobby Luckett (city councilman), Donnie Cheers (city councilman), Alan Elberson (part-time police sergeant), and Kenneth Cross (city councilman).
In August 2017, Pitchford was granted a continuance in order to subpoena the witnesses he desired to call to testify at trial. On the day of trial in December 2017, the mayor was not in attendance, and Pitchford's prior effort to subpoena her was deemed insufficient to require her attendance. Pitchford does not argue on appeal that the circuit court erred in its ruling as to the invalidity of the subpoenas.
Pitchford called his electrician, Stacy Abram, as a witness, who testified that the lot where Pitchford wanted electrical service was vacant except for an eight foot by ten foot storage building.
We point out that Pitchford did not move to disqualify Loftin as attorney of record for the city and that our supreme court has repeatedly registered its disapproval of an attorney testifying in an action in which he or she is an advocate. See, e.g. , Helena Country Club v. Brocato , 2018 Ark. 16, at 6, 535 S.W.3d 272, 276 ; Arthur v. Zearley , 320 Ark. 273, 280, 895 S.W.2d 928, 932 (1995). | [
20,
-17,
-96,
-114,
-4,
65,
26,
8,
65,
-125,
-25,
83,
-83,
-56,
8,
121,
-29,
125,
85,
104,
-62,
-73,
35,
99,
-22,
-14,
107,
-43,
-7,
78,
-12,
-36,
90,
80,
-53,
-43,
70,
98,
7,
92,
6,
-127,
-85,
-28,
89,
-64,
52,
61,
51,
15,
49,
-2,
-6,
43,
24,
98,
72,
44,
91,
11,
83,
-13,
-38,
-115,
-33,
21,
-125,
52,
-104,
-121,
64,
42,
-104,
49,
16,
-4,
115,
-94,
-126,
84,
79,
-39,
12,
42,
-32,
17,
9,
-89,
-88,
10,
14,
-4,
-97,
-89,
-104,
105,
123,
43,
-74,
-108,
54,
18,
5,
-2,
98,
-124,
123,
108,
-126,
-122,
-112,
-73,
15,
4,
-108,
19,
-21,
17,
20,
113,
-52,
-26,
92,
71,
49,
-33,
-50,
-79
] |
ROBIN F. WYNNE, Associate Justice
Appellants Austin Prince, Willie Reinhardt, Mary E. Lowman, Deborah Brown, Kevin Steeland, Phyllis Stinson, Thomas Lowman, and Richard Smith appeal from an order of the Pulaski County Circuit Court granting a motion to dismiss filed by the Arkansas State Highway Commission; the Arkansas Department of Transportation; and Scott E. Bennett, in his official capacity as director of the Arkansas Department of Transportation. We affirm.
The Arkansas State Highway Department determined that a new bridge was needed on Highway 79 to span the White River at Clarendon as part of a realignment and expansion of the highway. Because Highway 79 runs through federal land at that location, the Department was required to obtain an easement from the federal government. To that end, the Department entered into an agreement with the United States Fish and Wildlife Service (USFWS). Under the agreement, the Department would cede fifty acres of property to USFWS in exchange for a 49.69-acre easement over land in the Cache River and White River Wildlife Refuges. The Department also agreed to convey ninety-seven acres of land in Monroe County to USFWS to mitigate for the loss of habitat quantity and quality caused by the realignment and expansion of Highway 79. The agreement further required the Department to demolish three bridges, one of which is the old Clarendon bridge, remove all bridge structures, restore the natural topography, and reestablish native hardwood vegetation. To comply with this provision of the agreement, the Department planned to invite bids and enter into a contract with the winning bidder on the bridge-demolition project, with an estimated cost of $ 10.8 million.
Appellants filed a motion for preliminary injunction and complaint for declaratory and injunctive relief alleging that the contract between the Department and USFWS is void because it is unconscionable, entered into under duress, and constitutes a windfall to USFWS. They also alleged that there exists a mutual mistake of fact regarding the necessity of removing the old Clarendon bridge. Appellants contended in the complaint that, because the contract is void, the monetary expenditures constitute an illegal exaction, for which suit is permitted under article 16, § 13 of the Arkansas Constitution. In the complaint, appellants requested a permanent injunction restricting the Department from demolition activities for the old Clarendon bridge as well as reasonable attorney's fees, costs, and expenses.
Appellees moved to dismiss the complaint on the following grounds: (1) the complaint is barred by sovereign immunity; (2) appellants lack standing to challenge the agreements; (3) the complaint fails to state a claim for which relief may be granted; and (4) appellants failed to join an indispensable party (USFWS). Appellees also contested the motion for a preliminary injunction, contending that it was barred by sovereign immunity and failed to satisfy the requirements of Arkansas Rule of Civil Procedure 65 (2017). The circuit court granted the preliminary injunction with the stated goal of giving the parties time to explore settlement. The parties were unable to settle, and the circuit court entered an order granting the motion to dismiss on all four grounds asserted by appellees. This appeal followed.
Appellants appeal from the grant of a motion to dismiss. In reviewing a trial court's decision on a motion to dismiss under Ark. R. Civ. P. 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Goforth v. Smith , 338 Ark. 65, 991 S.W.2d 579 (1999). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and pleadings are to be liberally construed. Hames v. Cravens , 332 Ark. 437, 442, 966 S.W.2d 244, 247 (1998). However, our rules require fact pleading. A complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Brown v. Tucker , 330 Ark. 435, 438, 954 S.W.2d 262, 264 (1997) ; Ark. R. Civ. P. 8(a)(1) (2017).
Appellants' sole claim in their complaint is that the agreement between the Department and USFWS constitutes an illegal exaction. Article 16, § 13 of the Arkansas Constitution provides: "Any citizen of any county, city or town may institute suit, in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatsoever." This court has held that such a suit is not barred by the constitution's sovereign-immunity provision, article 5, § 20, because article 16, § 13, as a more specific provision, controls over the more general prohibition in article 5, § 20. McGhee v. Ark. State Bd. of Collection Agencies , 360 Ark. 363, 201 S.W.3d 375 (2005) ; Carson v. Weiss , 333 Ark. 561, 972 S.W.2d 933 (1998) ; Streight v. Ragland , 280 Ark. 206, 209-10 n. 7, 655 S.W.2d 459, 461 n. 7 (1983).
Clearly, citizens are constitutionally permitted to sue the state for an illegal exaction. The question before us in this appeal is whether appellants' complaint states a cause of action for an illegal exaction. We hold that it does not.
An illegal exaction is an exaction that is either not authorized by law or is contrary to law. Stromwall v. Van Hoose, 371 Ark. 267, 265 S.W.3d 93 (2007). Two types of illegal-exaction cases can arise under article 16, section 13 : "public funds" cases, where the plaintiff contends that public funds generated from tax dollars are being misapplied or illegally spent, and "illegal-tax" cases, where the plaintiff asserts that the tax itself is illegal. McGhee , 360 Ark. 363, 201 S.W.3d 375 (2005). This court has stated that citizens have standing to bring a "public funds" case because they have a vested interest in ensuring that the tax money they have contributed to a state or local government treasury is lawfully spent. Ghegan & Ghegan, Inc. v. Weiss, 338 Ark. 9, 991 S.W.2d 536 (1999). Accordingly, "a misapplication by a public official of funds arising from taxation constitutes an exaction from the taxpayers and empowers any citizen to maintain a suit to prevent such misapplication of funds." Farrell v. Oliver, 146 Ark. 599, 602, 226 S.W. 529, 530 (1921). When the expenditure is authorized by statute, no illegal exaction occurs. Sullins v. Cent. Ark. Water , 2015 Ark. 29, 454 S.W.3d 727.
A review of appellants' complaint reveals that it lacks sufficient facts to state a claim for an illegal exaction. Appellants do not allege in the complaint that the Department lacks the authority to enter into the agreement with USFWS. In fact, the Department has express statutory authority to "let all contracts for construction, improvement, and maintenance of roads comprising the state highway system." Ark. Code Ann. § 27-65-107(a)(2) (Supp. 2017). It also has the express authority to "enter into all agreements with the United States government relating to the survey, construction, improvement, and maintenance of roads under the provisions of any present or future congressional enactment." Ark. Code Ann. § 27-65-107(a)(3)(A). Appellants also do not allege that the Department failed to follow any applicable statute, rule, or regulation with regard to the agreement.
The complaint does not allege any wrongdoing on the part of the state at all. Instead, it alleges that USFWS took advantage of the Department's highway-expansion project to force unreasonable terms on the state and attempts to assert various contract defenses on the state's behalf. This is not sufficient to establish a claim for an illegal exaction. See Bowerman v. Takeda Pharm. U.S.A. , 2014 Ark. 388, 442 S.W.3d 839 (holding that a claim that the state's treasury was diminished by reimbursements for a prescription medication alleged to have caused serious health problems was not one for illegal exaction where there was no claim that the state lacked authority to make the reimbursement payments and all allegations of wrongdoing were against the pharmaceutical company).
As appellants do not plead facts sufficient to establish that the Department engaged in a misapplication or illegal expenditure of public funds, their claim is not one for an illegal exaction, and the circuit court did not err in dismissing the complaint. As we have held that the circuit court was correct in finding that the complaint fails to state facts upon which relief could be granted, we decline to consider appellants' remaining points on appeal.
Affirmed.
Special Justice Meredith Switzer joins.
Baker, J., concurs.
Hart, J., dissents.
Goodson, J., not participating.
Upon motion by appellants, this court stayed demolition of the old Clarendon bridge pending resolution of this appeal.
We further note that the decision in Board of Trustees of University of Arkansas v. Andrews , 2018 Ark. 12, 535 S.W.3d 616, has no bearing whatsoever on the right to sue provided to citizens in article 16, § 13, as Andrews dealt solely with the issue of whether the legislature was permitted to waive the state's constitutional immunity through statute.
In Nelson v. Berry Petroleum Co. , 242 Ark. 273, 413 S.W.2d 46 (1967), this court held that the chancery court had jurisdiction to entertain an illegal-exaction suit in which the plaintiff contended that a consortium of asphalt providers had conspired to charge the state amounts in excess of the fair-market value for asphalt, giving the state a lower grade than that contracted. In Bowerman , the court distinguished Nelson on the basis that, in Bowerman , the state provided reimbursement for the exact medication prescribed. 2014 Ark. 388, at 6, 442 S.W.3d 839, 843. Here, as in Bowerman , there is no allegation in the complaint that the state has not received what is due to it under the agreement with USFWS. | [
-107,
110,
-12,
108,
14,
67,
48,
-102,
83,
-117,
-19,
83,
-81,
67,
21,
115,
-29,
-17,
113,
105,
-57,
-74,
67,
34,
82,
-78,
121,
-57,
-69,
79,
-20,
-41,
76,
17,
-54,
-35,
68,
-62,
-59,
24,
70,
35,
-101,
109,
-47,
-58,
56,
111,
18,
79,
117,
-99,
-5,
45,
16,
-61,
108,
36,
-53,
47,
81,
-69,
-120,
-97,
127,
4,
33,
116,
-102,
3,
-54,
42,
-112,
49,
24,
-72,
115,
50,
-58,
100,
67,
-39,
8,
96,
98,
2,
-12,
-49,
-28,
-120,
6,
-6,
-115,
-90,
-126,
9,
75,
65,
-121,
-100,
124,
22,
69,
122,
-10,
-116,
31,
108,
-126,
-50,
-106,
-95,
-50,
60,
-108,
3,
-21,
13,
18,
116,
-57,
-30,
92,
71,
49,
-101,
-114,
-11
] |
BART F. VIRDEN, Judge
Appellant Jacqueline Jennings appeals from the Crawford County Circuit Court's revocation of her suspended sentence and the imposition of a seven-year term of imprisonment in the Arkansas Department of Correction followed by a seven-year suspended imposition of sentence (SIS). Jennings argues that the trial court erred in revoking her suspended sentence because there was insufficient evidence that she committed a criminal offense. We affirm.
I. Procedural History
In December 2017, Jennings pleaded guilty to possession of a firearm by a felon, and she received a ten-year SIS. She was ordered to pay a fine, costs, and fees, and she was advised that the SIS was conditioned on her good behavior. In August 2018, the State filed a petition to revoke alleging that Jennings had committed new criminal offenses on July 29, 2018. Specifically, she was charged as a habitual offender with arson, third-degree domestic battery, and resisting arrest. The State also alleged in its petition that she had failed to make any payments on her fine, costs, and fees, leaving an unpaid balance of $ 1,350. A hearing was held October 24, 2018.
II. Revocation Hearing
The testimony revealed the following sequence of events. On July 29, 2018, Jennings and her husband, Charles Jones, got into a fight at the home of Jones's sister, Patricia Collett. Jennings and Jones were described as "nose-to-nose" in the doorway of Collett's trailer when Jennings attempted to strike Jones with a broomstick; however, Collett blocked the blow. Collett was struck on her hand, and Jennings stepped on Collett's foot with her cowboy boots, breaking Collett's big toe. Jones restrained Jennings by "choking her out." He then took Jennings into the trailer and went back outside with Collett, who was calling the police. Meanwhile, Jennings had come around and was inside the trailer cursing and throwing things.
By the time James Polk, a corporal with the Crawford County Sheriff's Department, arrived at the scene in response to a domestic disturbance, Jennings had locked herself inside the trailer and refused to come outside, even after Polk had identified himself. Collett and Jones explained to Polk that Jennings had been off her medication for some time and had been talking to herself. Jennings refused Polk's offer to have EMS take her to a hospital. More officers arrived on the scene, and Jennings suddenly emerged from the trailer yelling that it was on fire.
Two officers had to restrain Jennings to keep her from reentering the trailer, which had smoke billowing out of it. Jennings tried to pull away from the officers. Polk testified that the officers kept telling Jennings to stop resisting but that they were forced to take her to the ground to handcuff her. Polk conceded that "[t]here were no physical blows thrown towards us[.]" Polk stated that, after they had gotten Jennings in custody, she said that "she'd see [him] in Hell and make sure [he] got there." He also said that, while he was patting her down for weapons, she had threatened to "beat [his] ass." Polk said that the trailer eventually "burnt to the ground" and was a total loss.
Both Collett and Jones testified at the revocation hearing that they thought Jennings's actions on that day were unintentional and accidental. Jones said of Jennings, "She's nice and kind, you know the sweetest person you'd ever want to meet as long as she's taking her medication." Polk testified that neither witness had described Jennings's actions as "unintentional" or "accidental" on the day of the altercation.
The trial court revoked Jennings's suspended sentence upon finding that she had violated the terms and conditions of her SIS by setting the fire that burned Collett's trailer and by resisting arrest. The trial court did not find that Jennings committed domestic battery and stated from the bench, "I can't tell you what happened in the fight." The trial court did not address Jennings's alleged failure to pay her fine, costs, and fees because the State had not put on any evidence in that regard.
III. Standard of Review
In a revocation hearing, the State must prove its case by a preponderance of the evidence. Ingram v. State , 2009 Ark. App. 729, 363 S.W.3d 6. A trial court may revoke a defendant's suspended sentence if it finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his or her suspended sentence. Id. The State bears the burden of proof but need only prove that the defendant committed one violation of the conditions. Id. When appealing a revocation, the appellant has the burden of showing that the trial court's findings are clearly against a preponderance of the evidence. Id. Evidence that is insufficient for a criminal conviction may be sufficient for the revocation of probation or a suspended sentence. Id. Since the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the trial court's superior position. Id.
III Discussion
A person commits the offense of resisting arrest if he or she knowingly resists a person known by him or her to be a law enforcement officer effecting an arrest. Ark. Code Ann. § 5-54-103(a)(1) (Repl. 2016). "Resists" means using, or threatening to use, physical force or any other means that creates a substantial risk of physical injury to any person. Ark. Code Ann. § 5-54-103(a)(2).
Jennings argues that there was no testimony that the force she had used created a substantial risk of physical injury to anyone because Polk testified that she had not thrown any "active blows" at the officers. Jennings also points to Polk's testimony that she appeared to be trying to escape the officers' grasp in an attempt to reenter the trailer-in other words, she was not trying to run away from the officers.
Polk responded to a report of "a physical dispute between family members." Before Jennings began resisting arrest by the officers (1) Jennings had broken Collett's toe by stomping on her foot with cowboy boots; (2) Collett had visible marks on her hand from where she had been struck by Jennings; and (3) Jones reported that Jennings had hit him in the face and neck area and had pulled his hair out when he had gotten between Jennings and Collett. In describing Jennings's resistance to the officers' efforts to arrest her, Polk said that Jennings was "wiggling around," "pulling against" him, "not cooperating," and "trying to get up, trying to get out of our grasp." He also said that Jennings did not "submit peacefully." Polk testified that Jennings had resisted to the extent that he and another officer had to take her to the ground to get handcuffs on her. In any event, according to the statute, using physical force is only one way a person may resist-a person may also threaten to use physical force. Here, Jennings threatened to use physical force against Polk when she said that she was going to "beat [his] ass" and that she would "make sure [he] got [to Hell]." This was evidence from which the trial court could conclude that Jennings's use, or threatened use, of physical force created a substantial risk of physical injuries to those present.
Because proof of only one violation of the terms and conditions of Jennings's SIS was necessary to revoke her suspended sentence, we need not address the other violation involving arson. We hold that the trial court's revocation of Jennings's SIS for committing the offense of resisting arrest was not clearly against a preponderance of the evidence.
Affirmed.
Gladwin and Whiteaker, JJ., agree. | [
80,
-23,
-20,
-100,
41,
65,
27,
-80,
-14,
-105,
116,
-110,
-89,
-26,
69,
107,
32,
127,
96,
121,
-45,
-73,
53,
97,
114,
-13,
24,
-41,
-69,
79,
-4,
-19,
90,
112,
-54,
-35,
38,
-62,
-27,
88,
-52,
-125,
-119,
-11,
81,
-62,
48,
43,
2,
-121,
97,
-66,
-30,
46,
16,
78,
13,
124,
91,
-67,
74,
39,
-47,
15,
-21,
20,
-111,
36,
-99,
7,
-38,
50,
-112,
49,
0,
-18,
115,
-110,
-126,
84,
69,
-101,
4,
36,
98,
48,
-107,
-41,
-88,
-88,
54,
126,
-107,
-121,
-104,
65,
67,
12,
-78,
-108,
46,
-108,
31,
122,
126,
70,
116,
108,
-90,
-50,
-108,
-79,
12,
52,
20,
-13,
-29,
37,
48,
84,
-51,
-29,
85,
6,
115,
-69,
-57,
-42
] |
ROBERT J. GLADWIN, Judge
Appellant Eric Lewis appeals the denial of his motion to suppress by the Ouachita County Circuit Court, arguing that the circuit court violated his Fifth Amendment right against self-incrimination by admitting statements he made to police because the interrogator made false promises of leniency. We affirm.
On March 3, 2015, appellant was charged with raping a seven-year-old girl in violation of Arkansas Code Annotated section 5-14-103 (Repl. 2013). On May 14, 2015, appellant filed a motion to suppress statements that he made to Arkansas State Police investigator Jerome Sanders, alleging that during an interrogation by the Camden Police Department, he "was questioned for extended periods of time and put under undue stress to the point that he was not able to knowingly, intelligently, or voluntarily waive his constitutional rights against self-incrimination." Appellant argued that any statements obtained were inadmissible either in the State's case-in-chief or for impeachment, citing the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and article 2 sections 8 and 10 of the Arkansas Constitution, pursuant to Mincey v. Arizona , 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) ; Grillot v. State , 353 Ark. 294, 107 S.W.3d 136 (2003) ; and Kennedy v. State , 325 Ark. 3, 923 S.W.2d 274 (1996). Appellant subsequently filed an amended motion to suppress in which he named the Arkansas State Police as having participated in the interrogations along with officers from the Camden Police Department. The State filed its response, again denying the allegations.
On August 13, 2015, the circuit court held a pretrial hearing regarding the suppression motion. At that hearing, the circuit court noted:
I did go back and listen to everything that [defense counsel] wanted me to listen to, looked at the timing [sic] frame for when you started, from when the interrogation started until it ended, [and] read the case law that was provided by your attorney and [the deputy prosecuting attorney].
What I found was, is that there's just not enough evidence there for me to throw it out and say that it's coercion. If you take the stand at trial, that's the only way that that can be used against you. Well, I shouldn't say that. That's not the case. But it can be used to impeach you at trial. But that's not to say that you still can't make the points that [defense counsel] makes in the brief, that you made in the brief about how the interrogation was conducted.
So, I'm going to deny the motion, but, obviously, you'll still have the opportunity to make those arguments at trial should you want to go to trial.
An order denying the motion to suppress was filed on August 24, 2015.
At the July 8, 2016 jury trial a one-hour videotape of appellant's police interview was played for the jury during the direct examination of Investigator Sanders, who had interviewed appellant. Also, written statements made during that interview were introduced into evidence without objection as State's exhibits 5 and 6. Investigator Sanders explained that while the portion of the interview that was played for the jury was approximately an hour long, the interview lasted a little more than three hours.
Appellant testified, stating that he graduated from the local high school in 2013. He initially stated that, in January, when he was interviewed by Investigator Sanders, he was at the station for four hours and that he did not believe he was free to go. However, appellant stated on cross-examination that he voluntarily went to the police station and that he could have left at any time. During his testimony, counsel noted in a bench conference that appellant went to the station voluntarily and took a polygraph test, which he failed, and that he was there for three hours after the polygraph test.
On July 8, 2016, the jury returned a guilty verdict, and appellant was sentenced to twenty-five years in the Arkansas Department of Correction (ADC). He filed a timely notice of appeal on August 10, 2018, and an amended notice of appeal on August 15, 2018.
The State has the burden of demonstrating by a preponderance of the evidence that custodial statements are given voluntarily and are knowingly and intelligently made. Kellon v. State , 2018 Ark. 46, 538 S.W.3d 206. In reviewing the circuit court's determination of voluntariness, we review the totality of the circumstances; we will reverse only if the circuit court's decision was clearly erroneous. Id. We have adopted a two-stage inquiry for instances in which defendants allege that false promises by police officers induced their custodial statements. First, we look to the nature of the officer's statement. If the officer made an unambiguous, false promise of leniency, then the statement elicited from the defendant is automatically inadmissible; if the officer made no promises of leniency, the statement is admissible. Id. ; see also Pyles v. State , 329 Ark. 73, 947 S.W.2d 754 (1997). If the officer's statements were of an ambiguous nature, however, we proceed to the second step of the analysis to examine the defendant's vulnerability under the following factors: age, education, intelligence, length of interrogation, experience with the justice system, and the delay between the defendants receiving Miranda warnings and the statement. Kellon , supra ; see also Clark v. State , 374 Ark. 292, 287 S.W.3d 567 (2008).
Appellant submits that the State failed to present evidence to support the assertion that appellant's statement was voluntary; rather, the entirety of its response to his motion to suppress was a general denial. Because no evidence was present at the suppression hearing, it is difficult to determine what factors, if any, the circuit court considered.
Appellant cites several cases in which courts seriously questioned the voluntariness of the confession when the accused had been urged to confess in order to receive "help." See Pyles , 329 Ark. at 77, 947 S.W.2d at 755 (reversed when the police officer told the defendant that he would "help him in every way in the world"); Tatum v. State , 266 Ark. 506, 509, 585 S.W.2d 957, 958 (1979) (reversed when a deputy sheriff told the appellant that he would "do all he could to help him"); and Shelton v. State , 251 Ark. 890, 895, 475 S.W.2d 538, 541 (1972) (reversed based on the prosecuting attorney's statement that he would try to help the defendant "all that he could"). Appellant argues that here, Investigator Sanders likewise offered him help, stating:
I'm going to help you as much as I can, but you've got to be one hundred percent with me. And, so, now, that's what I'm telling you-I wish a lot of folks that's incarcerated right now had the opportunity-Like I told you, I love my job because I'm in a predicament where I can help people.... [H]e's going to take my recommendation.... The only way, the only way that you can get help is that if you man up and you tell why this the truth.... I've seen where I've helped people in other counties and I explain why, and they didn't serve any jail time. I've seen where people came in here and said, hey, I didn't do this and didn't do this and found out they was lying, and the prosecutor threw the book at them and they in prison right now.... But the people that I do help and that allow me to help them, they might still get in trouble, but they get a hell of a lot better deal than getting the book thrown at them.
Appellant maintains that these statements, taken at face value, are clearly unambiguous promises of leniency offered in exchange for a confession. The State offered no evidence that Investigator Sanders followed through and made any attempt to help appellant; accordingly, he suggests that the promises appear to have been false. As such, he argues that no further analysis is necessary; the verdict should be reversed; and his case should be remanded for a new trial.
Moreover, appellant urges that should the court find there is ambiguity in the statements made by Investigator Sanders, further analysis to determine the voluntariness of his statements also supports a reversal. The court must examine his vulnerability pursuant to Kellon , supra , considering several factors: (1) the age, education, and intelligence of the accused; (2) how long it took to obtain the statement; (3) the defendant's experience, if any, with the criminal justice system; and (4) the delay between the Miranda warnings and the confession. Id.
With respect to these vulnerability factors, appellant argues that they favor a holding that his statements were not voluntary. He was twenty years old at the time the statements were made. Although evidence introduced at trial indicated that he was a high school graduate, no further information in the record expounds on his intelligence or abilities. He reiterates that Investigator Sanders's interview lasted more than three hours, but only approximately one hour of the interview was presented at trial. There is no evidence in the record regarding appellant's familiarity with the criminal justice system. There is also no clear indication of how much time transpired between the Miranda warning and appellant's statement; the probable-cause affidavit merely recites that appellant was given the Miranda warnings without any confirmation as to the timing thereof. Considering these factors, together with appellant's nearly continuous denials and pleas for assistance during the interview, appellant argues that he was vulnerable and that his statement was therefore involuntary and inadmissible.
The State suggests that appellant's argument is not preserved for appeal because he made a different argument before the circuit court. See Byrd v. State , 2016 Ark. App. 489, 505 S.W.3d 699. Appellant argued below that during the interrogation, he "was questioned for extended periods of time and put under undue stress to the point that he was not able to knowingly, intelligently, or voluntarily waive his constitutional rights against self-incrimination." The circuit court specifically stated in its ruling that there was not enough evidence to support a finding of "coercion." Although the State claims appellant does not argue that he was coerced to confess-rather, that the interrogator made false promises of leniency-we hold that the argument was substantially similar enough for us to reach the merits of appellant's argument. We note that the word "coercion" appears only one time in the record. It appears neither in appellant's motion to suppress nor in any responsive pleading filed by the State. The single time it appears is during the circuit court's oral ruling from the bench denying appellant's motion.
The relevant issue properly before us is whether appellant made a voluntary statement. We hold that he did and that there is no basis to suppress his voluntary, uncoerced statements based on the two-part inquiry in Kellon , 2018 Ark. 46, at 2, 538 S.W.3d at 207. At a hearing on appellant's motion to suppress, no evidence was introduced by either party, but the circuit court "did go back and listen to everything that [defense counsel] wanted [him] to listen to, looked at the timing frame for when you started, from when the interrogation started until it ended, read the case law that was provided by your attorney and [the prosecutor]." The circuit court explained that "what I found ... is that there's just not enough evidence there for me to throw it out and say that it's coercion." Regarding appellant's argument that Investigator Sanders made unambiguous, false-promises of leniency during the interview, we hold that neither the isolated comments that appellant objects to in his argument nor the longer interview indicate that Investigator Sanders made any promise to appellant or created an impression that he would be treated with leniency. Moreover, nothing in the statement suggests that appellant did not understand what was taking place; to the contrary, it shows that he understood his situation.
Our review of Investigator Sanders's comments does not indicate that he either promised or even implied that he would not arrest appellant or stop investigating the case or that appellant would not be held accountable for his actions. Law enforcement officers are allowed to use some psychological tactics and coercive statements in eliciting a custodial statement from the accused so long as the means employed are not calculated to procure an untrue statement, and the accused's free will is not completely overborne. E.g. , Friar v. State , 2016 Ark. 245, 2016 WL 3346565. We hold that Investigator Sanders's remarks cannot be construed as a promise of leniency; rather, they were utilized to convince appellant to truthfully explain what had happened.
Investigator Sanders told appellant that he did not know whether he would be able to avoid jail time or registration as a sex offender and said, "I've seen it go both ways." Investigator Sanders explained, "I'm not going to sit here and lie to you and tell you that you're not going to get into any trouble ... because I don't know." He also said that "telling the truth [is] your way of fighting for it." Later, he said, "[T]he system is made for you to tell the truth" and that sometimes when you tell the truth you get hurt, but "man to man, you made that bed ... and you've got to lie in it."
Our supreme court has held that when an officer does not falsely lead a defendant to believe that the defendant will be released following the interview, the confession is not the product of a false promise of leniency. E.g. , Fuson v. State , 2011 Ark. 374, 383 S.W.3d 848. Likewise, when an interviewing officer merely offers to tell the prosecuting attorney that the accused cooperated, our supreme court has held that this does not constitute a false promise of leniency that renders the statement involuntary. Winters v. State , 2013 Ark. 193, 427 S.W.3d 597 ; Goodwin v. State , 373 Ark. 53, 281 S.W.3d 258 (2008). Investigator Sanders never told appellant that he would receive leniency for being truthful; he simply made it clear that he would tell the prosecutor if appellant was truthful and remorseful, as in Goodwin , but that the prosecutor would make the decision about what charges to file.
Moreover, even if any of the statements made by Investigator Sanders were deemed ambiguous, our review under the Kellon factors as to whether appellant was vulnerable-age, education, intelligence, length of interrogation, experience with the criminal justice system, and any delay between the reading of the Miranda warnings and the statement-would not warrant a reversal.
It is undisputed that appellant has a high-school education and turned twenty-one less than a month after he made the statements in question. He understood the questions he was asked, gave articulate responses, and asked questions-which support that he understood what was taking place at the suppression hearing. At the time of the interrogation, appellant was able to verbally engage at length and in depth with Investigator Sanders. It is also undisputed that appellant has a history with the criminal justice system and was at least somewhat familiar with what was taking place.
The probable-cause affidavit indicates that appellant was given Miranda warnings before his polygraph test on January 15, 2015, and that he waived his rights and agreed to answer questions. Appellant testified that he was at the station for four hours, but he clarified that the first hour consisted of the administration of the polygraph test, followed by three hours of interrogation discussed by Investigator Sanders in his testimony. Accordingly, there was no significant delay to consider. We hold that none of the Kellon factors suggests that appellant was so vulnerable that he could be led into making a statement against his will. He admitted that he was at the police station voluntarily and that he was free to go at any time. He never indicated that he did not understand what was taking place.
Contrary to the cases cited by appellant involving blatant offers of help, Investigator Sanders never stated that he would help appellant get out of trouble or that he would work to lessen the charges or the punishment appellant would face. A review of Investigator Sanders's comments in the context of the entire interrogation and resulting statement supports the circuit court's finding that there simply was no coercion or promise of leniency.
Affirmed.
Glover and Vaught, JJ., agree.
State's exhibit 5, written by appellant, stated, "I was drunk, and I touch her butt and put my finger in front part. That all." It also stated, "I was drunk, and I touch her butt and front area. That's all. I apologize for what happen to [victim's name]." State's exhibit 6 contained a list of things that appellant told Investigator Sanders during the interview, which Investigator Sanders printed, followed by a line, then a statement in cursive handwriting that appellant wrote, signed, and dated that said, "I'm extremely sorry for what happen to [victim's name]."
The probable-cause affidavit states that appellant was given warnings pursuant to Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), before his polygraph test on January 15, 2015, and that he waived his rights and agreed to answer questions. | [
48,
-21,
-23,
60,
9,
-31,
62,
36,
-45,
-93,
-18,
-13,
47,
-48,
12,
113,
-21,
-1,
125,
105,
-60,
-74,
101,
97,
118,
-13,
90,
-41,
-74,
-49,
-4,
-68,
93,
96,
-54,
-47,
102,
-56,
-81,
-40,
-114,
8,
-117,
84,
82,
17,
32,
47,
74,
15,
53,
-68,
-14,
42,
16,
-63,
73,
108,
75,
-75,
80,
26,
-98,
31,
-21,
20,
-95,
54,
-102,
5,
80,
124,
-104,
49,
1,
-22,
51,
-74,
-126,
-43,
99,
-101,
-88,
104,
99,
10,
105,
-10,
-84,
-88,
38,
58,
-99,
38,
-40,
97,
75,
77,
-105,
-107,
56,
20,
14,
-6,
106,
-60,
93,
108,
-122,
-49,
-112,
-109,
15,
60,
-108,
51,
-29,
21,
80,
53,
-57,
-30,
84,
87,
59,
-37,
-114,
-11
] |
BRANDON J. HARRISON, Judge
In July 2017, a law-enforcement officer working for the Arkansas Game and Fish Commission stopped Alvin Boykin and his companions on a privately leased property called the Gar Hole in Ashley County. The officer discovered a vial of methamphetamine in the front pocket of Boykin's shirt. The State charged Boykin with possession of less than two grams of methamphetamine and possession of drug paraphernalia. In May 2018, the Ashley County Circuit Court found him guilty of possession of methamphetamine, but Boykin was acquitted of possession of drug paraphernalia.
On appeal, Boykin challenges the sufficiency of the evidence supporting the court's finding of guilt. He contends that the State did not prove that he constructively possessed methamphetamine.
Our supreme court has stated the legal principles governing possession of a controlled substance. Possession may be actual or constructive. Pokatilov v. State , 2017 Ark. 264, at 3, 526 S.W.3d 849, 853. Actual possession is marked by direct physical control of the drugs. Id. Constructive possession exists if the defendant knew of the drug's presence and had control over it. Lambert v. State , 2017 Ark. 31, at 3, 509 S.W.3d 637, 640.
We hold that substantial evidence of constructive possession exists in this case. When the arresting officer arrived at the scene, Boykin was wearing cowboy boots, jeans, a tee shirt, and a maroon-colored Western shirt with long sleeves. Boykin told the officer that he had bag of marijuana in his right front pants pocket. Immediately before the arrest, Boykin took off the maroon Western-style shirt and draped it over a folding chair. Ms. McDaniels, one of Boykin's companions, was seated on the ground approximately five or six feet away in handcuffs. After the arrests, law-enforcement officers searched the immediate area and the arrestees' personal belongings. A vial of what the State proved to be methamphetamine was found in the front left pocket of the maroon Western shirt. The arresting officer also found used drug syringes in the sand in the immediate vicinity of Boykin's arrest. Boykin denied knowing that the vial was inside the pocket of his shirt. He claimed that another female companion had placed the drug vial in the Western shirt and that she had been wearing the shirt previously to prevent mosquito bites.
A fact-finder reasonably could have concluded from this evidence that Boykin had knowledge of, and control over, the methamphetamine vial and therefore constructively possessed it. Champlin v. State , 98 Ark. App. 305, 310, 254 S.W.3d 780, 785 (2007) (affirming constructive possession of a controlled substance; fact-finder not required to believe defendant's version of events when he is the person most interested in the outcome of the trial). Therefore, we affirm Boykin's conviction.
Affirmed.
Abramson and Murphy, JJ., agree. | [
48,
-18,
-20,
28,
42,
96,
56,
-80,
83,
-37,
116,
19,
-81,
-30,
29,
51,
-93,
95,
84,
-31,
-63,
-73,
67,
96,
-46,
-13,
8,
-61,
49,
-53,
12,
-36,
76,
116,
-61,
85,
67,
8,
-21,
88,
-122,
1,
-101,
67,
65,
2,
54,
39,
17,
79,
49,
23,
-30,
47,
25,
-117,
109,
44,
75,
-65,
88,
106,
-103,
87,
-49,
22,
-125,
36,
-111,
37,
-40,
60,
-104,
51,
0,
-24,
-13,
-90,
-110,
116,
15,
-101,
-120,
32,
98,
32,
29,
-57,
-88,
-116,
63,
-85,
-123,
-74,
88,
72,
75,
-117,
-73,
-76,
46,
24,
14,
-8,
99,
76,
117,
108,
3,
-50,
-76,
-111,
13,
48,
-46,
-77,
-53,
37,
116,
85,
-49,
-14,
84,
20,
113,
27,
-101,
-12
] |
KENNETH S. HIXSON, Judge
Appellant Donald Lee Brown was convicted in a jury trial of second-degree murder committed against Damon Wilkins.
Brown's sentence was enhanced pursuant to the jury's findings that he employed a firearm to commit the offense and that he committed the offense in the presence of a child. Brown's total prison sentence was thirty years.
Brown now appeals, raising one argument for reversal. Brown argues that the trial court abused its discretion in denying his motion for a mistrial after one of the State's witnesses allegedly made a comment about gangs during her testimony. We find no error, and we affirm.
A mistrial is an extreme and drastic remedy to be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing the trial. Russell v. State , 306 Ark. 436, 815 S.W.2d 929 (1991). A trial court may grant or deny a motion for mistrial utilizing sound discretion, and the exercise of that discretion should not be disturbed on appeal unless an abuse of discretion or manifest prejudice to the complaining party is shown. See King v. State , 298 Ark. 476, 769 S.W.2d 407 (1989). Among the factors considered by this court on appeal in determining whether a trial court abused its discretion in denying a mistrial motion are whether the prosecutor deliberately induced a prejudicial response and whether an admonition to the jury could have cured any resulting prejudice. Hall v. State , 2018 Ark. App. 474, 561 S.W.3d 333. The abuse-of-discretion standard is a high threshold that does not simply require error in the trial court's decision but requires that the trial court act improvidently, thoughtlessly, or without due consideration. Hortenberry v. State , 2017 Ark. 261, 526 S.W.3d 840.
On September 3, 2016, the victim, Damon Wilkins, was living with his fiancée Chamika Rogers and her four children. On that evening there were two separate disturbances in front of their house. During the second disturbance, Wilkins was shot multiple times and killed. Chamika and two of her children witnessed the shooting and testified that appellant Brown was one of two persons who had shot Wilkins.
Chamika testified that on the evening at issue, several men, including Brown and Chamika's nephew, came to her house. According to Chamika, there were verbal confrontations between Wilkins and both Brown and her nephew. The men left the scene, and the police arrived at the house shortly thereafter, having been called there by someone who had seen the altercation and reported that Wilkins had pulled a gun on someone. The police spoke with Chamika, and she told them that during Wilkins's argument with her nephew, Wilkins had a gun in his pocket but never pulled it out. The police left the scene.
Later that night, the men who had been there earlier, including Brown, returned to the house. According to Chamika, Wilkins was apologizing to the men and tried to defuse the situation. Then Chamika's sister drove up in a truck and said, "If somebody pulled a gun on my son, I'm going to blow this house up." Wilkins walked to the truck and spoke with Chamika's sister and told her that he never pulled a gun on anyone. Shortly thereafter, a man in a grey Cadillac drove up, exited the car, and tossed a gun to Brown. According to Chamika, these two men proceeded to where Wilkins was standing near the truck and both men shot him multiple times.
Chamika's son, E.R., also testified about the shooting. E.R. testified that before the shooting, Wilkins "kept apologizing, and it didn't work." E.R. stated that he saw a an give a gun to Brown, after which Brown started shooting at Wilkins.
Chamika's daughter, C.R., testified next. It was during C.R.'s testimony that Brown made his motion for mistrial that is the subject of this appeal.
When the prosecutor was questioning C.R. about the men returning to the scene before the shooting, the following exchange occurred:
WITNESS : Don [Brown] was standing at the end of the driveway, still on the phone. He was on his phone. He said he was going to put that on the dogs is what he was gonna come back and do.
DEFENSE COUNSEL : May we approach.
TRIAL COURT : Hold on. Hold on a second.
WITNESS : I ain't lying.
TRIAL COURT : Hold on. Shh. Shh. Shh.
[ BENCH CONFERENCE .]
DEFENSE COUNSEL : There was a motion in limine about any gang testimony. And the State has just coached the testimony of the dogs kind of comment, which I think refers to Bloods.
TRIAL COURT : Uh-huh.
PROSECUTOR : Well, I will say that was not responsive to the State's question. That was something that was actually blurted out by the State's witness. And I don't know that that's clearly gang evidence.
TRIAL COURT : I didn't know either. I thought it was just talking about some dogs. I mean, I'm sorry. It's just a little different. But I mean, it was unresponsive. It wasn't something that they elicited from her, so, I mean, I'll overrule the objection.
PROSECUTOR : I mean, we'll certainly move on.
DEFENSE COUNSEL : We'd ask for a mistrial based upon the interjection of the gang subject because it violates the defendant's right to due process.
PROSECUTOR : The State intends to have no argument-I mean, we have zero argument with respect to that. And we don't intend to bring that up and didn't intend to bring it up. And that was something that was unresponsive by the witness.
DEFENSE COUNSEL : I'm not necessarily saying it's intentional, because it appeared to me to be this witness decided she had to interject that. And I don't think that these prosecutors have tried to do this on purpose, but it, in fact, was said.
TRIAL COURT : Well, I understand. I'll deny the request for a mistrial.
DEFENSE COUNSEL : Thank you.
C.R. then testified about the shooting. She testified:
When Damon is at my Aunt Tonya's car, I saw another car come up to our house. I saw a dude in grey Cadillac. I saw a grey Cadillac. Where I was when the grey Cadillac pulled up was I was standing in the middle of the yard. My sister was on the porch. That's Chamacia. What happened when the grey Cadillac pulled up was a little short dude by the name of Doughboy jumped out the car. Don did a little hands signal or whatever. And he tossed Don the gun and he creeped around Tonya's truck. And then Damon, he seen Don coming towards him with a gun. His last words was, "Hey, bro, don't do that." And they started shooting him up.
....
After Damon had been shot, Donald Brown left. He jumped in the grey Cadillac. To my knowledge, Damon did not have a gun in his hand. He had his in his pocket.
In this appeal, Brown argues that the trial court abused its discretion in denying his motion for mistrial made during C.R.'s testimony. Brown asserts that C.R.'s testimony that she heard Brown say he "was going to put that on the dogs" was an impermissible reference to Brown's membership in a gang. Brown cites Jackson v. State , 359 Ark. 297, 197 S.W.3d 468 (2004), for the proposition that proof of a defendant's membership in a street gang is prejudicial to the defendant. Brown also cites State v. Nance , 533 N.W.2d 557 (Iowa 1995), where the Iowa Supreme Court stated that evidence of gang membership is inherently prejudicial and appeals to the jury's instinct to punish gang members.
We reject Brown's argument. As an initial matter, it is not clear that C.R.'s statement about "dogs" was even a reference to gangs, much less evidence of Brown's membership in a gang. And as conceded by Brown below, C.R.'s statement was unsolicited and unresponsive to the State's questioning. The State never intended to interject gangs into the trial, made no argument to the jury with regard to gangs, and elicited no evidence about gangs. Moreover, Brown did not request an admonition for the jury to disregard the allegedly objectionable statement. It is a defendant's duty to request a curative instruction, and an appellate court will not determine that the trial court's decision to deny a mistrial motion was an abuse of discretion where an admonition to the jury could have cured the situation but no such admonition was requested. Moore v. State , 355 Ark. 657, 144 S.W.3d 260 (2004). For these reasons, we hold that the trial court did not abuse its discretion in denying Brown's motion for a mistrial.
Affirmed.
Gruber, C.J., and Brown, J., agree.
Prior to trial, Brown had made a motion in limine to exclude any evidence of gang activity, arguing that it was not relevant and prejudicial. The State agreed not to introduce evidence of gang activity.
In Jackson , our supreme court stated that a police officer's testimony that the appellant was a "slinger" and a "banger" was undoubtedly harmful to the appellant. | [
112,
-32,
-3,
-100,
9,
-31,
8,
-68,
116,
-45,
102,
115,
109,
-33,
85,
107,
-21,
93,
117,
97,
86,
-77,
7,
65,
50,
83,
82,
-42,
-73,
107,
-9,
-33,
8,
112,
-62,
85,
102,
2,
-25,
-48,
-122,
20,
-119,
-28,
-64,
82,
48,
46,
64,
-121,
49,
-114,
-93,
43,
27,
67,
104,
60,
91,
-68,
64,
17,
24,
7,
-17,
16,
-79,
-74,
-98,
-122,
80,
61,
-40,
56,
1,
-24,
115,
-112,
-126,
84,
105,
25,
-84,
102,
102,
8,
-55,
-50,
-87,
-119,
63,
126,
-123,
-121,
-102,
64,
65,
-52,
-74,
-97,
98,
52,
15,
120,
109,
-100,
120,
-20,
41,
95,
16,
-103,
-83,
125,
-106,
-78,
-29,
37,
48,
52,
-49,
-32,
92,
7,
121,
-37,
-34,
-107
] |
COURTNEY HUDSON GOODSON, Associate Justice
Appellant Chris Beason Taffner (Taffner) appeals his conviction on two counts of rape and three counts of sexual assault in the second degree, for which he was sentenced to an aggregate term of 140 years' imprisonment. For reversal, Taffner argues that the circuit court erred when it (1) denied his motion for directed verdict, (2) excluded the testimony of Jonathan Zovak, (3) prevented him from conducting a reasonable cross-examination of one of the victims, and (4) denied his motion for a new trial after a juror had concealed her position as a court-appointed child advocate during voir dire. We affirm in part and remand for further proceedings.
I. Background
Taffner and his wife were adoptive parents to AT, BT, KT, JT, and NT, five children who came into the Taffner home through the foster-care system. Taffner and his wife also periodically fostered other children. The couple fostered MG from October 2014 to December 2014. In December 2014, BT overdosed on Oxycontin, which was provided to her by MG. MG was sent to a drug-treatment facility, and when she returned, the Taffners told her that they could no longer foster her. MG later alleged that Taffner had touched her breasts on two occasions. Consequently, the State charged Taffner with second-degree sexual assault based on MG's allegations. MG was at least fourteen at the time of the alleged offense. During an investigation of MG's allegations, BT alleged that Taffner had inappropriately touched her, and also that he had forcibly penetrated her and forced her to perform oral sex on him. Taffner was charged with two counts of rape and one count of second-degree sexual assault for the incidents involving BT, who was thirteen at the time of the alleged offense. KT initially denied any inappropriate touching or sexual contact but later alleged that Taffner often touched her breasts. Taffner was charged with one count of second-degree sexual assault for doing so when KT was under the age of fourteen.
On January 8, 2016, Taffner filed a motion in limine in which he sought to use specific instances of dishonesty to impeach the juveniles' testimony pursuant to Arkansas Rule of Evidence 608(b) and to offer evidence as to their reputation for honesty. The court held a hearing on the motion on January 12, 2016. At the hearing, Taffner argued that he should be allowed to question BT about false charges she had made against her biological father that had been investigated but found to be unsubstantiated. The hearing also involved other issues and ended without a ruling regarding BT's questioning.
On March 11, 2016, Taffner filed a motion to compel production of a Department of Human Services (DHS) file, which Taffner argued contained a report of a sexual-abuse allegation BT made against her biological father that was found to be unsubstantiated. That same day, the court ordered production of the file for an in camera review of its impeachment or exculpatory value. The file was brought to the court, and another hearing was held later that day. At that hearing, the court considered whether the DHS file should be produced to Taffner. The court noted that BT's biological father's rights had been terminated, and in the termination order, Judge Stacey Zimmerman stated that BT had disclosed sexual abuse by her father. The court found there was no evidence that BT had recanted her allegations by the time the termination order was entered, and the court further found "there is no need for me to examine the juvenile file." The court asked the State to prepare a written order reflecting the ruling. The hearing then ended.
Taffner's trial began on March 14, 2016, and ended on March 16, 2016. On the second day of the trial, the prosecution called BT as a witness. Before BT testified, the court excused the jurors, and the parties revisited the issue of which questions Taffner would be allowed to ask her. During the hearing, the court noted that Ark. R. Evid. 411, known as the rape-shield rule, prevented Taffner from questioning BT about her prior allegation of sexual abuse if BT continued to assert that the allegation was true. However, the court did allow BT to be questioned as to the truthfulness of her prior allegation against her biological father. BT was therefore questioned outside the presence of the jury, and she testified that her allegations of sexual abuse by her biological father were false. After BT's testimony, the circuit court ruled that when the jury returned Taffner could ask BT if she made an allegation against her biological father, if it was true, how long ago the allegation was made, and how old she was at the time. The court further said, "And that's it. Nothing like records that we've talked about in the past and then that's going to be the end of that subject matter." The trial resumed, and BT was questioned accordingly about her prior allegation against her biological father. When the defense asked BT if the prior allegation was true she said, "Now that I know the terms that they use, it is not true."
At the close of the State's case, Taffner moved for a directed verdict with respect to the charge relating to MG. Taffner argued that MG was not a credible witness, but the court denied his motion. The trial proceeded to Taffner's presentation of his defense.
In his defense, Taffner sought to introduce the testimony of Jonathan Zovak, who would have stated that MG had a reputation for dishonesty. Taffner planned to introduce Zovak's testimony through Ark. R. Evid. 608(a), which allows the attack of a witness's reputation for truthfulness. The State argued that Zovak's testimony was barred by Ark. R. Evid. 411, the rape-shield rule, because Zovak was a convicted sex offender, and MG was his victim. The State reasoned that Zovak would need to be impeached by his conviction, which would then violate Rule 411's prohibition of the use of a victim's prior sexual conduct to attack a witness's credibility. According to the State, Taffner was attempting an "end-around" the rape-shield rule. Taffner argued that he was attempting to introduce the evidence through Rule 608(a) and did not plan to reference MG's sexual history; however, the court ruled Zovak's testimony inadmissible under Rule 411.
At the close of his case-in-chief, Taffner again moved for a directed verdict. Taffner raised a new argument that the State had failed to prove that his alleged touching of MG involved forcible compulsion. Taffner argued that without evidence of forcible compulsion, he could not be convicted of second-degree sexual assault for touching MG because she was over the age of fourteen at the time of the alleged offense. The circuit court denied Taffner's motion, and he was convicted of all counts.
II. Points on Appeal
A. Sufficiency of the Evidence
An appeal from the denial of a motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Brunson v. State , 368 Ark. 313, 245 S.W.3d 132 (2006). Therefore, due to double-jeopardy concerns, we first address Taffner's argument that the circuit court erred by denying his motion for a directed verdict. Hicks v. State , 2017 Ark. 262, 526 S.W.3d 831.
Taffner argues that because MG was at least fourteen at the time of the alleged offense, the state failed to offer substantial evidence of forcible compulsion as required by Ark. Code Ann. § 5-14-125(a)(1) (Repl. 2013). That statute prohibits a person from engaging in sexual contact with another person by forcible compulsion. Sexual contact includes an act of sexual gratification involving the touching of the breast of a female. Ark. Code. Ann. § 5-14-101(10). Forcible compulsion is defined by Ark. Code. Ann. § 5-14-101(2) to include "physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person." Arkansas Rule of Criminal Procedure 33.1 requires a challenge to the sufficiency of the evidence to be made by a motion for a directed verdict at the close of the State's case-in-chief and at the close of the defense's case-in-chief. Rule 33.1 requires the motion to "state the specific grounds therefor." Taffner moved for a directed verdict at both stages. However, Taffner did not argue a lack of evidence of forcible compulsion at the close of the State's case. The only argument he made with respect to MG was that she was not a credible witness. In fact, when he renewed his motion for a directed verdict at the close of the defense case, Taffner's attorney specifically said that he had a new argument. Taffner's attorney then went on to argue that there was no proof of a threat of serious bodily injury, death, or kidnapping of MG. The circuit court also recognized Taffner's "new argument" in denying the second motion. We agree that Taffner presented a new argument that the State failed to provide substantial evidence of forcible compulsion and therefore hold that it was not preserved for review.
B. Zovak's Testimony
Taffner next argues that the circuit court abused its discretion by excluding the testimony of Jonathan Zovak. According to Taffner, Zovak would have testified as to MG's reputation for dishonesty pursuant to Ark. R. Evid. 608(a), and Taffner argues that the testimony was not excludable under Ark. R. Evid. 411. Zovak had been convicted of fourth-degree sexual assault of MG. The State argued that Zovak should not be allowed to testify because in order to impeach Zovak, the State would be required to violate Ark. R. Evid. 411 by introducing evidence of Zovak's criminal history, which would in turn reveal MG's sexual history. The circuit court agreed with the State in excluding the testimony.
A circuit court's evidentiary ruling will not be reversed in the absence of an abuse of discretion and a showing of prejudice. McKeever v. State , 367 Ark. 374, 240 S.W.3d 583 (2006). Taffner argues that the testimony was allowed under Rule 608 and was not prohibited under Rule 411. Taffner further argues the court's erroneous ruling prejudiced him because the State's entire case turned on the credibility of the witnesses. The circuit court ruled that Rule 411 specifically excludes reputation evidence, that Zovak would testify as to MG's reputation, and that as a result, he could not testify. Under Rule 608(a), a witness's reputation for truthfulness may be attacked in the form of opinion or reputation evidence. However, Rule 411(b) provides:
[O]pinion evidence, reputation evidence, or evidence of specific instances of the victim's prior sexual conduct with the defendant or any other person, evidence of a victim's prior allegations of sexual conduct with the defendant or any other person, which allegations the victim asserts to be true, or evidence offered by the defendant concerning prior allegations of sexual conduct by the victim with the defendant or any other person if the victim denies making the allegations is not admissible by the defendant , either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.
(Emphasis added.)
Here, Zovak's testimony could best be impeached by referring to his conviction. Taffner argues that Zovak's testimony was not excludable under Rule 411 because the rule prevents the defendant, not the State, from introducing evidence of a victim's prior sexual conduct. Taffner further argues that he was planning to attack MG's reputation for honesty, not her sexual history.
We hold that the circuit court erred by excluding Zovak's testimony under Rule 411 for the following reasons. First, the plain language of Rule 411 prohibits the defendant, not the State, from introducing evidence of a witness's sexual history. We construe court rules using the same means and canons of construction used to interpret statutes. City of Fort Smith v. Carter , 364 Ark. 100, 216 S.W.3d 594 (2005). The first rule in considering the meaning and effect of the statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. In other words, if the language of the statute is plain and unambiguous, the analysis need go no further. Id. The unambiguous language of Rule 411 demonstrates that it applies to the defendant, not the State.
Therefore, the State could have impeached Zovak with his conviction involving MG without violating Rule 411. Second, although the State could have impeached Zovak with the conviction involving MG, it was not required to do so. Finally, the State could have impeached Zovak with evidence of his past sexual assault conviction without reference to the fact that MG was the victim. Therefore, Zovak's testimony should have been allowed.
Although the circuit court erred by excluding Zovak's testimony, our analysis does not end there because we must still determine if the error resulted in prejudice. See Edison v. State , 2015 Ark. 376, 472 S.W.3d 474 (holding prejudice is not presumed by an evidentiary ruling but must be demonstrated). We conclude that it did not. Zovak would have testified that MG had a reputation for dishonesty. Although Zovak's testimony was excluded, Taffner was allowed to present essentially the same testimony from Donald "Catfish" Holt, a neighbor who testified that MG was a "schemer" who tried to blame others and get her way, while acting as if she was an innocent child. Zovak's testimony would have been cumulative to Holt's. See Lacy v. State , 2010 Ark. 388, 377 S.W.3d 227 (holding that the exclusion of cumulative evidence was not an abuse of discretion). We therefore hold that there was no prejudice in its exclusion.
C. Cross-Examination of BT
Next, Taffner argues that he was prevented from conducting a reasonable cross-examination of BT for two reasons. First, Taffner argues that the DHS file he requested was suppressed in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Second, Taffner argues that, in violation of the Sixth Amendment's Confrontation Clause, he was prohibited from inquiring into the reasons BT made a false allegation of sexual abuse against her biological father. Because Taffner's cross-examination arguments raise constitutional questions, our standard of review is de novo. Davis v. State , 2011 Ark. 373, 2011 WL 4396967.
1. The DHS file
Taffner's request for the DHS file was denied by the circuit court. Although the court conducted an in camera hearing before the trial to determine whether the information contained therein should be disclosed to Taffner, the court concluded that it would not be disclosed. At that point in the proceedings, the court believed that BT had not recanted her allegation that her biological father had sexually abused her. The court ruled that Taffner's questioning would be limited to whether BT had made an allegation of sexual abuse against her biological father, if the allegation was true, and how long ago it happened. The court specifically ruled that no documentation would be allowed.
a. File access
In Pennsylvania v. Ritchie , 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), the defendant was charged with sexual offenses against his minor daughter. The matter was referred to the state's Children and Youth Services (CYS) agency for investigation, and the defendant sought in discovery the records related to the charges at issue in the case, as well as records from a separate report that the defendant's children were being abused. The State refused to turn over the records, despite the existence of a state statute that allowed such records to be disclosed to a court. Although the lower court refused to order production of the records, the Pennsylvania Supreme Court concluded that the trial court's refusal to order production of the records violated the United States Constitution's Confrontation Clause and the Compulsory Process Clause. Pennsylvania appealed. The United States Supreme Court determined that the circuit court should have at least reviewed the file to determine the materiality of its content. The Supreme Court did not agree with Ritchie's argument that he was entitled to access to the entire file. The Court concluded that Ritchie's rights could be protected by remanding to allow the trial court to review the file to determine whether it contained information that probably would have changed the outcome of the trial. Specifically, the court held:
We therefore affirm the decision of the Pennsylvania Supreme Court to the extent it orders a remand for further proceedings. Ritchie is entitled to have the CYS file reviewed by the trial court to determine whether it contains information that probably would have changed the outcome of his trial. If it does, he must be given a new trial. If the records maintained by CYS contain no such information, or if the nondisclosure was harmless beyond a reasonable doubt, the lower court will be free to reinstate the prior conviction.
Id. at 58, 107 S.Ct. 989.
Previously, we have said that unfounded reports of sexual abuse contained in DHS records could not be disclosed to a criminal defendant. Fox v. State , 314 Ark. 523, 863 S.W.2d 568 (1993) ; Douthitt v. State , 326 Ark. 794, 935 S.W.2d 241 (1996). However, those cases interpreted prior statutory law, which did not allow the disclosure to defendants of unfounded reports of sexual abuse contained in DHS records. Current Arkansas law allows the disclosure in a criminal case of unsubstantiated reports of child maltreatment contained in DHS records. Ark. Code Ann. § 12-18-910 (Supp. 2017). Just as in Ritchie , where the Pennsylvania statute allowed for disclosure, our statute does as well. Therefore, we believe that Ritchie is directly on point in reviewing this matter. Based upon Ritchie , we hold that the circuit court erred by failing to review the DHS file to determine whether it contains information that was material to Taffner's defense.
b. Remedy
Because we find that the circuit court erred with respect to the DHS file, we must determine the appropriate remedy. In doing so, we again look to Ritchie. Although Taffner suggests that the remedy is to grant him a new trial, we disagree. In Ritchie , the Supreme Court observed that the Pennsylvania statute did not prohibit all disclosure of CYS records. Because the Pennsylvania statute allowed disclosure of CYS records pursuant to a court order, the Supreme Court concluded that the statute did not prevent all disclosure in a criminal prosecution. Id. Our statute, like the Pennsylvania statute in Ritchie , allows disclosure of unsubstantiated reports to the parties in a criminal case under the terms of a protective order issued by the court. Ark. Code Ann. § 12-18-910(f)(4). We believe that the approach set forth in Ritchie is applicable. This matter must be remanded so the circuit court can conduct an in camera review of the file and determine if Taffner is entitled to any of the information it contains.
2. Questioning permitted
Taffner also argues that he was not allowed to conduct a reasonable cross-examination of BT because the court limited him to asking her whether she previously made a false allegation of sexual abuse against her biological father, and when that charge was made. Taffner generally alleges that he should have been allowed to inquire more fully into the circumstances of BT's false allegation.
The Sixth Amendment's Confrontation Clause provides a criminal defendant the right to physically face those who testify against him, and the right to conduct effective cross-examination. Davis , supra. The denial of a defendant's right to expose the jury to facts from which jurors could appropriately draw inferences relating to a witness's reliability is a constitutional error. Winfrey v. State , 293 Ark. 342, 738 S.W.2d 391 (1987). Here, Taffner was able to question BT about the truth of her prior allegation. BT testified, although with some equivocation, that her allegation against her biological father was false. Taffner was therefore able to successfully impeach BT regarding the allegation. Based on the record before us, we cannot say that the circuit court denied Taffner the right to expose the jury to facts from which the jurors could draw inferences relating to BT's reliability. See id. We do, however, recognize that Taffner's argument for more extensive questioning of BT may have been different depending on the information contained in the DHS file. On remand, if the DHS file contains evidence material to Taffner's defense, he may argue that the evidence demonstrates a need for additional questioning of BT.
D. Juror misconduct
Finally, Taffner argues that the circuit court abused its discretion when it denied his motion for a new trial based on a juror's failure to reveal in voir dire her role as a court-appointed child advocate. After the trial, Taffner learned that juror Michelle Mullins was a volunteer with Court Appointed Special Advocates for Children (CASA). Taffner then filed a motion for a new trial, arguing that Mullins concealed this relationship during voir dire. The decision whether to grant or deny a motion for new trial lies within the sound discretion of the circuit court, and this court will reverse only if there is a manifest abuse of discretion. Harrison v. State , 371 Ark. 652, 269 S.W.3d 321 (2007). A circuit court's factual determinations on a motion for a new trial will not be reversed unless clearly erroneous, and the circuit court determines issues of credibility. Smart v. State , 352 Ark. 522, 104 S.W.3d 386 (2003).
The party moving for a new trial bears the burden of proving, first, that juror misconduct occurred, and second, that there was a reasonable probability of resulting prejudice. Holsombach v. State , 368 Ark. 415, 246 S.W.3d 871 (2007). The court does not presume prejudice but rather presumes that jurors are unbiased and qualified to serve, and the appellant has the burden to show otherwise. Holloway v. State , 363 Ark. 254, 213 S.W.3d 633 (2005).
Taffner faults Mullins for not responding to two questions asked of venire members. Mullins was silent when asked if she had "been employed by or are associated with any party, witness, or attorney." Mullins was also asked if she "had any prior contact with law enforcement." Mullins's silence in response to the questions does not amount to misconduct. First, Mullins was not a state employee. Second, if the court were to conclude that Mullins's work with CASA was an association with the State, virtually anyone who had any involvement with the State or courts could be prevented from serving on a jury if asked these specific questions. Third, Mullins's incidental contact with court bailiffs during her work with CASA is not sufficient to establish prior contact with law enforcement. Further, Taffner has not established a reasonable probability of prejudice. Therefore, Taffner is not entitled to reversal on this point.
III. Conclusion
In sum, we affirm the circuit court's rulings denying Taffner's motions for a directed verdict and for a new trial. The circuit court erred by not allowing Zovak's testimony, but we conclude that there was no prejudice. The circuit court also erred by not conducting an in camera review of the DHS file to determine if it contained information material to Taffner's defense; therefore, we remand for further proceedings. On remand, the circuit court must conduct an in camera review of the DHS file pursuant to the procedure set forth in Ritchie. If the file contains "information that probably would have changed the outcome" of the trial, Taffner should receive a new trial unless "the nondisclosure was harmless beyond a reasonable doubt." Ritchie, at 58, 107 S.Ct. 989. If the file contains no evidence likely to change the outcome of the trial, or if the nondisclosure is harmless beyond a reasonable doubt, the circuit court should leave the verdicts undisturbed, as prescribed by Ritchie.
Affirmed in part; remanded for further proceedings.
Wynne, J., concurs in part and dissents in part.
Baker and Hart, JJ., dissent.
The order was signed on March 15, 2016, and entered the next day.
Although BT's father's parental rights were terminated, Judge Zimmerman relied on Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp. 2009), and § 9-27-341(b)(3)(B)(vii)(a) , which involve grounds for termination other than sexual abuse. The court did not rely on § 9-27-341(b)(3)(B)(vi), which provides for immediate termination of parental rights when the juvenile has been the victim of sexual abuse perpetrated by the parent.
Justice Hart in dissent observes that suppression by the prosecution of evidence favorable to the accused violates due process where the evidence is material either to guilt or punishment. Although she finds a Brady violation in Taffner's lack of access to the DHS file, we believe that determination is premature in light of the fact that the file was never reviewed and the actual contents of the file are not part of the record.
Outside the presence of the jury, BT testified that the allegation she made against her biological father was false. At trial, BT's testimony was equivocal, but Taffner's attorney did not make any further argument at that time that additional questioning should be allowed. | [
112,
-22,
108,
60,
24,
33,
26,
48,
-78,
-93,
-65,
-13,
43,
-34,
8,
127,
-117,
47,
69,
121,
-109,
-73,
23,
-31,
-77,
-5,
-72,
-41,
-77,
79,
-76,
-76,
8,
112,
-54,
-11,
98,
-54,
-11,
92,
-126,
7,
58,
-32,
83,
-122,
44,
127,
90,
15,
49,
-98,
-46,
107,
28,
-53,
73,
110,
27,
-67,
88,
29,
-101,
23,
-97,
86,
-89,
52,
-65,
6,
120,
54,
88,
49,
9,
-22,
115,
-90,
-122,
116,
75,
-119,
12,
32,
99,
-96,
45,
-57,
61,
-128,
110,
79,
-67,
-90,
-104,
105,
75,
45,
-73,
-73,
114,
20,
15,
-6,
95,
-49,
52,
108,
-96,
-114,
-100,
-71,
15,
-88,
68,
-77,
-13,
37,
0,
117,
-51,
-12,
84,
85,
58,
-97,
-114,
-74
] |
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency's statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
Ark. Code Ann. § 25-15-212(h) (Repl. 2014).
On appeal, an appellate court's review is directed not toward the circuit court's order, but toward the order of the agency, because we have held that administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts to determine and analyze legal issues affecting their agencies. Voltage Vehicles v. Ark. Motor Vehicle Comm'n , 2012 Ark. 386, 424 S.W.3d 281. Our review of administrative decisions, however, is limited in scope. Id. When reviewing such decisions, we uphold them pursuant to the APA if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. Id.
On appeal, Dr. Ahmad first argues that the Arkansas Board's decision to revoke his medical license is not supported by substantial evidence, or is affected by other error or law, because the evidence does not show that he violated Arkansas Code Annotated section 17-95-409(a)(2)(R) by violating an Alaska statute, rule, or regulation. Specifically, he asserts that the evidence shows that Alaska merely initiated disciplinary proceedings against him; he claims that the Alaska Board never issued a final decision on whether he violated an Alaska statute or regulation.
Arkansas Code Annotated section 17-95-409(a)(1) states that the Arkansas Board may revoke an existing license in the event the holder has committed any of the acts or offenses defined to be unprofessional conduct. Subsection 409(a)(2)(R) defines unprofessional conduct as "having been found in violation of a statute or a rule governing the practice of medicine by a medical licensing authority or agency of another state." Alaska Statute sections 08.64.326(a)(8)(A) and (a)(9) state that the Alaska Board may impose a sanction if the board finds after a hearing that a licensee has demonstrated "professional incompetence, gross negligence, or repeated negligent conduct" or has engaged in "unprofessional conduct." Here, following a hearing, the ALJ in Alaska found that the Division had met its burden of demonstrating that Dr. Ahmad's opioid prescribing practices violated both subsections 326(a)(8)(A) and (a)(9). The Alaska Board then adopted the findings of the ALJ. Thus, there is sufficient evidence that Dr. Ahmad violated an Alaska statute.
Dr. Ahmad claims that the ALJ's decision applied only to whether there was sufficient evidence to impose a summary suspension under Alaska Statute section 08.64.331(c). In other words, he argues that the ALJ's decision, and thus the Alaska Board's adoption of it, determined only that the summary suspension was proper and was not a final decision on whether he violated a statute. Dr. Ahmad's argument is misplaced.
The ALJ stated that "[u]nless overturned, a summary suspension under AS 08.64.331(c) then remains in place until resolution of disciplinary proceedings under AS 08.64.331(a)." Subsection 331(c) states as follows:
The [Alaska] board may summarily suspend a license before final hearing or during the appeals process if the board finds that the licensee poses a clear and immediate danger to the public health and safety if the licensee continues to practice. A person whose license is suspended under this section is entitled to a hearing conducted by the office of administrative hearings not later than seven days after the effective date of the order, and the person may appeal the suspension after a hearing to a court of competent jurisdiction.
Subsection 331(a) provides:
If the [Alaska] board finds that a licensee has committed an act set out in AS 08.64.326(a), the board may
(1) permanently revoke a license to practice;
(2) suspend a license for a determinate period of time;
(3) censure a licensee;
(4) issue a letter of reprimand;
(5) place a licensee on probationary status and require the licensee to
(A) report regularly to the board on matters involving the basis of probation;
(B) limit practice to those areas prescribed;
(C) continue professional education until a satisfactory degree of skill has been attained in those areas determined by the board to need improvement;
(6) impose limitations or conditions on the practice of a licensee;
(7) impose a civil fine of not more than $25,000; or
(8) impose one or more of the sanctions set out in (1)-(7) of this subsection.
Alaska Stat. Ann. § 08.64.331(a) (West 2017).
Accordingly, in this case, the ALJ decision, and thus the Alaska Board's adoption of the decision, definitively decided that Dr. Ahmad violated the Alaska statutes. The decision merely left the issue of a final disciplinary sanction unresolved, and Dr. Ahmad voluntarily surrendered his Alaska license before the Alaska Board issued the final sanction. Further, Dr. Ahmad did not appeal the Alaska Board's decision to the Alaska courts. Thus, the Alaska Board found that Dr. Ahmad had violated Alaska statutes. We therefore hold that there was substantial evidence, and the decision was not affected by other error or law, for the Arkansas Board to revoke Dr. Ahmad's Arkansas medical license for a violation of Arkansas Code Annotated section 17-95-409(a)(1).
Dr. Ahmad next argues that the Arkansas Board's procedure for revoking his medical license was arbitrary, capricious, and characterized by an abuse of discretion. Specifically, he takes issue with the following actions of the Arkansas Board: (1) the issuance of the emergency order on May 19, 2016, suspending his license; (2) the refusal to reinstate his license on June 2, 2016, despite his surrender of his DEA license; (3) the reinstatement of his license on August 4, 2016, based on the fact that he surrendered his DEA license; and (4) the permanent suspension of his Arkansas license on October 13, 2016. He argues that the allegations against him did not change between May 19, 2016, and August 4, 2016, and if his surrender of his DEA license satisfied the Arkansas Board in August, the surrender should have satisfied it in June. He claims the Arkansas Board's decision was not well-reasoned or well-considered.
The requirement that the agency's decision not be arbitrary or capricious is less demanding than the requirement that it be supported by substantial evidence. Collie v. Ark. State Med. Bd. , 370 Ark. 180, 258 S.W.3d 367 (2007). To be invalid as arbitrary or capricious, an agency's decision must lack a rational basis or rely on a finding of fact based on an erroneous view of the law. Id. Where the agency's decision is supported by substantial evidence, it automatically follows that it cannot be classified as unreasonable or arbitrary. Id.
While the Arkansas Board's decision to temporarily reinstate Dr. Ahmad's license gives us pause, the interim period between the emergency order and the final decision to revoke his license resulted from the pending disciplinary proceedings in Alaska. Further, when the Arkansas Board received verification that the Alaska proceedings resulted in a finding that Dr. Ahmad had violated Alaska law, the Arkansas Board then revoked his medical license for a violation of Arkansas Code Annotated section 17-95-409(a)(1). As we have already discussed, the evidence is sufficient to show that Dr. Ahmad violated subsection 409(a)(1). Accordingly, we cannot say that the Arkansas Board's decision was arbitrary, capricious, or characterized by an abuse of discretion.
Dr. Ahmad lastly argues that the Arkansas Board's decision was unduly harsh because there was no evidence that he engaged in any acts of misconduct or demonstrated lack of professional judgment in his treatment of Arkansas patients. Our supreme court has acknowledged that under certain circumstances the penalty imposed by an administrative agency may be so harsh that its imposition may be described as arbitrary and capricious. Collie , 370 Ark. 180, 258 S.W.3d 367. Our supreme court has stated that "to permanently bar an individual from the profession that he studied and prepared himself for, and has practiced for many years, apparently in a law-abiding manner, requires proof that makes it clearly evident that that individual had embarked on a calculated course of willfully violating the law." Id. at 188, 258 S.W.3d at 373 (quoting Ark. State Bd. of Pharmacy v. Patrick , 243 Ark. 967, 974-75, 423 S.W.2d 265, 269 (1968) ).
In this case, the evidence presented before the ALJ in Alaska showed that pharmacists had reported high volumes of Dr. Ahmad's patients with prescriptions for high-dosage opioids and controlled substances without visible symptoms and that an independent pain-management expert, Dr. Brett R. Stacey, found that Dr. Ahmad's physical-exam findings did not support the specific diagnoses listed in the patient records and that Dr. Ahmad refused to consider nonopioid treatments. Dr. Ahmad's scheduling records in Alaska showed that between August 15 and August 18, 2015, Dr. Ahmad saw 32 patients but wrote 81 separate prescriptions for controlled substances; in September 2015, he saw 54 patients in a three-day period but wrote 138 separate prescriptions for controlled substances; in October 2015, he saw 76 patients in a three-day period but wrote 175 separate prescriptions for controlled substances; in November 2015, he saw 124 patients in a three-day period but wrote 229 separate prescriptions for controlled substances; and in December 2015, he saw 179 patients in a four-day period but wrote 166 separate prescriptions for controlled substances. Dr. Stacey reported that Dr. Ahmad's prescribing pattern is far afield from any known or accepted medical-practice guideline. Given this overwhelming evidence showing repeated, willful violations of Alaska law, we cannot say that the Arkansas Board's decision to revoke Dr. Ahmad's Arkansas license was unduly harsh.
Affirmed.
Vaught and Hixson, JJ., agree.
Title 12 of the Alaska Administrative Code section 40.970 defines professional incompetence as "lacking sufficient knowledge, skills, or professional judgment in that field of practice in which the physician or physician assistant concerned engages, to a degree likely to endanger the health of his or her patients."
Title 12 of the Alaska Administrative Code section 40.967 defines unprofessional conduct as "an act or omission by [a] licensee that does not conform to the generally accepted standards of practice for which ... the licensee is authorized to practice under AS 08.64."
One pharmacist reported that, in a single morning, he turned away eighteen of Dr. Ahmad's patients, all seeking to fill prescriptions of high-dose opioids and other controlled substances. | [
16,
-24,
-36,
-4,
46,
-61,
50,
22,
81,
-53,
127,
113,
-81,
-15,
-100,
43,
-45,
-19,
-16,
57,
-58,
-78,
86,
64,
102,
-41,
-14,
-57,
-79,
-17,
-26,
124,
88,
48,
-54,
-43,
70,
64,
-63,
-40,
-126,
34,
-104,
122,
-48,
-59,
40,
37,
-110,
-113,
121,
-97,
-29,
60,
19,
-61,
-20,
110,
95,
-84,
73,
-48,
-102,
29,
107,
16,
-93,
52,
59,
7,
-40,
62,
-100,
57,
3,
-4,
51,
-90,
-62,
100,
79,
-103,
8,
115,
98,
33,
24,
-27,
32,
-52,
39,
46,
13,
-90,
-101,
81,
73,
7,
-106,
-80,
54,
20,
15,
108,
-29,
-35,
31,
108,
72,
-113,
-104,
-95,
6,
36,
-108,
59,
-17,
-25,
17,
20,
-107,
-26,
85,
76,
115,
30,
-98,
-124
] |
WAYMOND M. BROWN, Judge
Alim Shakir Hakim was convicted by a Sebastian County jury of one count of delivery of cocaine and sentenced as a habitual offender to twenty-five years' imprisonment with an additional five years' suspended sentence. Pursuant to Anders v. California , and Rule 4-3(k) of the Rules of the Supreme Court and Court of Appeals, Hakim's counsel has filed a motion to withdraw on the ground that this appeal is wholly without merit. The motion is accompanied by an abstract and addendum of the proceedings below, which addresses all objections and motions decided adversely to Hakim, and a brief in which counsel purportedly explains why there is nothing in the record that would support an appeal. The clerk of this court provided Hakim with a copy of his counsel's brief and notified him of his right to file pro se points for reversal, but he has not done so. We deny counsel's motion to withdraw and order rebriefing.
Hakim was sentenced as a habitual offender; however, none of the previous convictions are included in the addendum. Additionally, there was a video played during the trial, and although it is abstracted, the video is not included in the addendum. Arkansas Supreme Court Rule 4-2(a)(8)(A) requires that the addendum contain all relevant pleadings, orders, documents, and exhibits in the record that are essential to an understanding of the case.
A brief's abstract shall contain "material parts" of the transcripts, including information "essential for the appellate court to ... understand the case, and to decide the issues on appeal." Here, during closing argument, counsel admitted to the jury that Hakim was guilty of delivery of cocaine. However, that portion of the transcript has not been abstracted in violation of our rules. Additionally, during sentencing, counsel asked the jury to consider sentencing Hakim to a minimal sentence of three years, based on the fact that Hakim was already sentenced to sixty-eight years' imprisonment in other cases. The jury declined the request and sentenced Hakim to twenty-five years' imprisonment with an additional five years suspended; however, counsel neither abstracted this request nor articulated why this adverse ruling was not meritorious. In a criminal no-merit appeal, in order to comply with Arkansas Supreme Court Rule 4-3(k)(1) and Anders , counsel is required to abstract each adverse ruling by the circuit court and discuss why each particular ruling would not present a meritorious basis for reversal; we must order rebriefing if counsel fails to do so.
Counsel's argument before this court is as follows:
The undersigned attorney believe[s] that this is a no merit appeal. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Rule 4-3(h) of the Rules of the Supreme Court, the record has been abstracted and reviewed. There were no adverse ruling of the trial court. Only one objection was made, by the State, which the court first upheld (R. 58-59, AB 1-2) but after reconsideration, the trial court reversed its ruling, allowing the defense counsel to argue how much prison time the appellant had previously received. (R. 85-86, AB 2-3)
At the start of trial, which was for delivery of cocaine in violation of ACA 5-64-422, trial counsel admitted that the appellant was guilty of the crime. (R. 81, AB. 2) Thus, there is not even an argument for insufficient evidence to convict. Trial counsel did not move for a directed verdict, and acknowledged such. (R. 114-115, AB 13-14)
Based on the fact that no objections were made that were adverse to the appellant, an appeal is frivolous. Based on these facts, the ruling of the Trial Court should be upheld and the undersigned allowed to withdraw as counsel for the appellant.
A close look at page two of the abstract reveals that during a side bar, counsel stated to the court, "My client committed this crime. They have a video of it[.]" However, it was not the court that found Hakim guilty, it was the jury. Thus, counsel has directed us to the wrong statement in his attempt to justify why a sufficiency argument is unwarranted. Reference in the argument portion of the parties' brief to material found in the abstract and addendum shall be followed by a reference to the page number of the abstract or addendum at which such material may be found. Counsel has failed to do this. Counsel has also failed to state the applicable standard of review in violation of our rules.
The briefing deficiencies mentioned are not to be taken as an exhaustive list. Counsel has fifteen days from the date of this opinion to file a substituted abstract, brief, and addendum that complies with the rules.
Rebriefing ordered; motion to withdraw denied.
Gruber, C.J., and Harrison, J., agree.
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
(2017).
Ark. Sup. Ct. R. 4-2(a)(5) (2017).
Supra.
Sartin v. State , 2010 Ark. 16, 362 S.W.3d 877.
Ark. Sup. Ct. R. 4-2(a)(7).
Counsel indicated to the jury during closing that Hakim was guilty but failed to abstract that part of the transcript.
Ark. Sup. Ct. R. 4-2(a)(7).
See Ark. Sup. Ct. R. 4-2(b)(3). | [
48,
-24,
77,
60,
-88,
-95,
26,
52,
72,
-25,
118,
83,
-19,
86,
4,
123,
-29,
31,
84,
-23,
-36,
-69,
85,
-63,
99,
-9,
58,
-42,
-14,
95,
-12,
-76,
14,
32,
-54,
65,
102,
74,
107,
92,
-114,
1,
-117,
86,
65,
11,
32,
34,
30,
15,
49,
-97,
-29,
45,
31,
-54,
-23,
108,
73,
111,
88,
-119,
-102,
15,
-37,
36,
-93,
52,
-101,
5,
-8,
58,
-100,
49,
1,
-24,
55,
-90,
-126,
116,
107,
59,
36,
38,
-30,
1,
17,
111,
-68,
-55,
31,
46,
57,
-26,
-40,
33,
75,
105,
-106,
-67,
62,
30,
13,
126,
110,
5,
49,
108,
0,
-58,
-112,
-79,
14,
53,
4,
-101,
-29,
33,
16,
116,
-115,
-30,
92,
-42,
56,
-37,
-58,
-106
] |
RITA W. GRUBER, Chief Judge
Appellant Timmy Dale Jester was convicted by a jury on one count of rape in violation of Ark. Code Ann. § 5-14-103 and three counts of sexual assault in the second degree in violation of Ark. Code Ann. § 5-14-125. He was sentenced to 300 months' imprisonment for the rape conviction and 60 months' imprisonment on each of the sexual-assault convictions. The circuit court ordered the sentence for the rape conviction to run consecutively to one of the sentences for sexual assault, and the other two sexual-assault sentences were to run concurrently with those sentences.
Pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Rule 4-3(k)(1) (2017) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's attorney has filed a no-merit brief and a motion to withdraw, arguing that this appeal is without merit. The motion is accompanied by an abstract and addendum of the proceedings below, purporting to include "all of the motions made which were denied," and a brief in which counsel explains why there is nothing in the record that would support an appeal. Appellant has filed pro se points for reversal, and the State has filed a brief in response. However, counsel's no-merit brief is not in compliance with Anders and Rule 4-3(k). Therefore, we order rebriefing and deny without prejudice counsel's motion to withdraw.
Rule 4-3(k)(1) requires that the argument section of a no-merit brief contain "a list of all rulings adverse to the defendant made by the circuit court on all objections ... with an explanation as to why each ... is not a meritorious ground for reversal" and that "the abstract and addendum of the brief shall contain ... all rulings adverse to the defendant." Ark. Sup. Ct. R. 4-3(k)(1). Generally speaking, if a no-merit brief fails to address all the adverse rulings, it will be sent back for rebriefing. Sartin v. State , 2010 Ark. 16, at 4, 362 S.W.3d 877, 880. The requirement for abstracting and briefing every adverse ruling ensures that the due-process concerns in Anders are met and prevents the unnecessary risk of a deficient Anders brief resulting in an incorrect decision on counsel's motion to withdraw. Sartin , 2010 Ark. 16, at 8, 362 S.W.3d at 882. For these reasons, a no-merit brief in a criminal case that fails to address an adverse ruling does not satisfy the requirements of Rule 4-3(k)(1), and rebriefing will be required. Id.
Our review of the record reveals at least two adverse rulings that were neither abstracted nor argued by counsel. For example, page 682 of the record reflects that, during trial, the court sustained the State's objection based on leading the witness. On page 66 of the supplemental record, appellant's counsel objected on the ground of leading during the posttrial hearing to which the court responded, "A little leading is allowed." In addition, counsel's abstract in both the paper copies and the electronic copy is missing page 68, which is also referenced in counsel's argument. Due to deficiencies, we deny counsel's motion to withdraw and order rebriefing.
We also note that counsel has argued why the denial of the directed-verdict motion is not a meritorious ground for reversal, suggesting that the victims' testimony alone would be sufficient to support the convictions. However, counsel has failed to point to any specific testimony of the victims to support each conviction. The court's instructions to the jury as to each of the five counts charged, which identifies each victim, are not included in the abstract and would be helpful for our review of this argument.
The deficiencies we have noted should not be considered an exhaustive list, and counsel is strongly encouraged to review Anders , supra , and Rule 4-3(k) of the Arkansas Rules of the Supreme Court and Court of Appeals for the requirements of a no-merit brief. Counsel has fifteen days from the date of this opinion to file a substituted brief that complies with the rules. See Ark. Sup. Ct. R. 4-2(b)(3). After counsel has filed the substituted brief, our clerk will forward counsel's motion and brief to appellant, and he will have 30 days within which to raise additional pro se points in accordance with Rule 4-3(k). The State will likewise be given an opportunity to file a responsive brief if further pro se points are made. Appellant and the State may elect to stand on the original pro se points and responsive brief in this case.
Motion to withdraw denied; rebriefing ordered.
Harrison and Brown, JJ., agree.
In response to appellant's pro se points for reversal, the State filed a brief arguing that appellant failed to preserve his sufficiency argument, or in the alternative, that there is substantial evidence to support his convictions. | [
112,
-22,
-51,
-36,
-88,
-63,
26,
-68,
80,
-49,
119,
83,
-81,
-2,
0,
123,
-85,
79,
85,
105,
-42,
-78,
53,
-31,
103,
-77,
-77,
-43,
-78,
-49,
-12,
-12,
94,
-8,
-62,
-47,
70,
-62,
-21,
92,
-122,
1,
-120,
72,
73,
-116,
56,
63,
92,
15,
53,
-66,
-77,
45,
29,
-53,
-24,
108,
-37,
61,
72,
-103,
-104,
15,
-23,
52,
-93,
-92,
-101,
5,
80,
62,
-100,
57,
8,
-24,
55,
22,
-126,
84,
111,
25,
-116,
34,
99,
0,
21,
-45,
40,
-88,
-105,
63,
-67,
-89,
-40,
41,
75,
33,
-105,
-75,
62,
84,
15,
126,
103,
76,
115,
108,
3,
-50,
-48,
-77,
9,
44,
68,
-69,
-29,
-95,
20,
117,
-52,
-28,
92,
-33,
123,
31,
-26,
-78
] |
Subsets and Splits
No saved queries yet
Save your SQL queries to embed, download, and access them later. Queries will appear here once saved.